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The overcoming clause

שו”תCategory: generalThe overcoming clause
asked 3 years ago

Have you written about the issue of the overcoming clause? What is your opinion on the matter?


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מיכי Staff answered 3 years ago
I didn’t write it and I don’t have a clear position. There is clearly room for such a policy, but there are several options and choosing between them requires more thorough thinking and examination.

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מיכי Staff replied 3 years ago

A quick review here: https://www.ynet.co.il/news/article/sksdv5hbs

מיכי Staff replied 3 years ago

I will write one thing though.
The discussion of this question can be conducted on two different levels: 1. What is appropriate to do in terms of democratic thought, theory. 2. Is this true in today's Israel. These are different questions and the answer will not always be the same. Our political system is completely rotten, and handing it power is a very dangerous thing. There is not a shred of responsibility and due consideration there, and if you hand them unlimited legislative power, it is a sure recipe for a lot of trouble. They change laws every moment according to their own convenience, and also basic laws in general. This is not the normal conduct of a responsible system, and in fact it is the destruction of the legal system in the country. Citizens have lost faith in the laws and their validity because they see that the legislator is not subject to the law but rather bends it as he wishes and according to his convenience. Why would a citizen obey this law? The law loses its meaning if the politician can override it whenever he wants by changing it with one or another casual majority and according to one or another interests. Therefore, I would try very hard to prevent them from having power as much as I can, although it is of course not in my hands. I am certainly not enthusiastic about the fact that power will be handed over to a court that was not elected by the public, but this is a principled and theoretical difficulty, and there are practical difficulties in front of it.
A bit reminiscent of Lapid's claim that he did not bring the agreement on Lebanon to a vote in the Knesset because, according to him, the opposition is acting irresponsibly. I gave a similar answer about this: https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%94%D7%A1%D7%9B%D7%9D-%D7%A2%D7%9D-%D7%9C%D7%91%D7%A0%D7%95%D7%9F

אורן replied 3 years ago

A few questions about what you wrote about legislation:
1) What is the problem with changing laws every moment according to your own convenience? What is the difference between changing them frequently or frequently or for convenience/other reasons?
2) Why should the legislator be subject to the law if he is the one who creates it? The mouth that forbade is the mouth that permitted.
3) Do you have an example of this behavior?

מיכי Staff replied 3 years ago

The problem is that a law is supposed to be something of principle and not something that serves the temporary interest of some one or the other. The result of such a policy is problematic, as I have briefly explained here. Why would a citizen pay taxes if he knows that they are being used for some narrow, incidental interest without any thought of the general benefit, and without having any expectation of what will happen to the money in a month when a different conjuncture is created? For example, the problematic arrangements with the Haredim are supposed to be the result of broad agreement and not of a coincidental conjuncture that comes and goes. This is even more true when governments change every year, and the Knesset has no power (the government determines everything. There are only two branches of government in Israel, not three). Every 61 who come to power for two months change the constitution. Then another 60 come and change it again. Every passing spirit changes the state of the law in Israel. Equality before the law is a self-evident principle. The legislator is not God, whose words create heaven and earth, and whose words create binding norms. He is supposed to represent me and create laws that benefit society and not himself. He acts in my name and not as my sole and totalitarian ruler. After the right and proper laws are created, he is also supposed to uphold them. The mouth that forbade only means that his act is legal and legally valid, it does not mean that it is proper. It is like a person lying and saying peace and repayment when there are no witnesses to the loan, even though he did not repay. He will claim that he has the mouth that forbade and this is his justification for lying and that the money is indeed due to him. The court will accept this because he has the mouth that forbade, but it does not make his forceful act proper. It is the same with us.
All kinds of draft laws. All the laws that passed in the current term and will be repealed in the upcoming term (one-time tax, cellular reform, etc.). The Basic Law of the Government (regarding the number of ministers and private individuals) and much more.
In the US, in order to touch the constitution or add one amendment or another, you have to change the order of Genesis. This almost never happens, even though there are many strong and legitimate interests in all directions (the Obamacare health care law, gun ownership, and more). That's why the attitude towards the constitution there is also very serious and respectful. In Israel, the attitude towards the law is completely dismissive and no one will talk to you seriously about obeying the law. You obey if there is a fear of being caught. And it's not just because of Israeliness, it's also because of how the laws are received.

אורן replied 3 years ago

But in the US, too, many laws are changed when there is a change of government. For example, when Trump was in power, he withdrew from the climate agreement, and when Biden came to power on the first day, he immediately returned to the climate agreement. Is this also an illegal act from your perspective? The same thing happened with Obamacare, which Trump repealed upon taking office.

Furthermore, I don't understand what alternative you are proposing? After all, it is the public that elected that legislator whom you claim is bending the law to his will and convenience. If you have a problem with the will of the public, you can choose to leave him or choose to stay with him and accept his will.

מיכי Staff replied 3 years ago

The climate agreement is with other countries and not an internal law. But it has internal consequences. Trump really is part of the problem. I don't have an algorithm, but the situation now is unbearable. A law is supposed to reflect a more stable situation than a random constellation. And again, the problem is not formal, since such a law is valid. The problem is that it is not appropriate to act this way and the results are problematic. Of course, if Trump does one thing, now the question arises whether Biden shouldn't return the favor, otherwise the criminals will always win. It takes two to tango.

אורן replied 3 years ago

I also remember you saying in the past that you oppose anchoring laws with some kind of qualified majority (like 80 MKs) and that 60 MKs should be enough to change any law, including basic laws or the constitution, because otherwise it turns out that the minority controls the majority.

מיכי Staff replied 3 years ago

That's right. There is no contradiction. A stable majority of 61 is good, a casual majority of 80 is bad.

פאפאגיו replied 3 years ago

You did not answer two questions: 1-What is the problem with the legislator changing laws, after all, he comes from the power of the people who do not have to choose him and yet choose. After all, the validity of the law is only from the power of the people, right?
2- What is the alternative, that the court, which does not reflect the will of the people, will decide for itself?
(Although there is indeed a fundamental problem in the balance between the authorities, on the one hand, it is not possible for the court, which is the unelected minority, to determine by the majority, and on the other hand, someone is needed to protect the minority as well)
Thank you!

מיכי Staff replied 3 years ago

I addressed both. It's worth reading before asking.

גבריאל replied 3 years ago

The Behemoth has no army, no budget, no appointments, and therefore has less interest than the government.
The power of the Behemoth (should be) a deceptive power, not a creative power - a power that stops bad behavior, not a power to create its own behavior.

Theoretically, it would be possible to randomly select 9 people from the market and appoint them to the Supreme Behemoth as a deceptive body for the creative body of the government.

Perhaps it would even be appropriate for their identities to be unknown and for no one to know who they are (there are cryptological tools that can work here).

The worst thing that could happen is to grant one man and his group of servants absolute power without limits (because they can cancel any limit with a clause of superiority).

אורן replied 3 years ago

But by the very nature of the coalition system, there is a kind of give-and-take relationship regarding laws. For example, regarding the draft law, I assume that the Likud is in principle in favor of drafting ultra-Orthodox Jews, but is willing to give up this issue in order to promote other laws that are important to it, such as restrictions on the legal system and a free market. In other words, in a coalition system, the formation of the majority group is by definition “coincidental” in the sense that each subgroup seeks “trading partners” that are most profitable for it in terms of the values and laws they are trying to promote.

In other words, if we go back to the example you gave of someone who evades paying off their debt just because they can do it legally. There it is clear that the person who does it is aware of the moral injustice of his act. But in our case and the legislative system in Israel, I don't see what moral or meta-legal value the legislators are harming with their conduct, and especially if you try to judge them according to their system. At most, they are harming one value (if there is such a value that is harmed) in order to promote another value that is more important to them (say, studying Torah without interference from the military).

In the 15th day of the month of the Supreme Court

I do not understand why there should be a repeat vote in the Knesset on a law that the High Court judges claim to be null and void. After all, the tenure of the judges is conditional on a ’declaration of allegiance to the State of Israel and its laws’. If so, a judge who writes in black and white that the state's law is invalid – has thereby nullified the declaration of allegiance to the laws of the state, and is considered to have resigned.

There is therefore no need for any repeat vote. A judge who nullifies his commitment to one of the laws of the state – immediately ceases to serve as a judge. His ‘ruling’ and his resignation – are indistinguishable!

With greetings, Justice Abu-Shehadeh Al-Khofrani

שכל ישר replied 3 years ago

The judge's role is to be a brake on injustice.
An injustice that the government (the majority) commits. That's what they're paid for.
When they nullify a law because it contradicts another law or a basic law or is contrary to justice, only then do they fulfill their role as a listening ear to all who are harmed by the government.
(When they justify the government, their salary is unnecessary, because after all, that's what the government-majority wants. Their entire role is to say where the mistake is, just like another arm called the State Comptroller, whose role is to warn about failures and not to give out compliments.)
It's just like the pedal that stops the driver
With the understanding that driving without brakes ends in death and crushing.
This is how every society that is reformed provides itself with balancing scales that stop it wherever it slips.
Without brakes, they will surely accumulate power that accumulates more power that ultimately crushes individuals and communities and ultimately crushes society to the point of no choice - civil war.

איש replied 3 years ago

Politicians are hard to trust
For example, Bibi and his gang voted against the law that allows citizenship not to be granted every year to thousands of Arabs who have been displaced from Gaza and Nablus to Jaffa and Ramla (the law preventing family reunification, stopping Arab immigration to the State of Israel)
For example, Bibi and his gang voted against the Law of Regulations for the West Bank, which allows for a normal life for Israelis beyond the Green Line

Allows the police to roam there and hand out fines and in practice apply the sovereignty of the Israeli government (over Israelis) which allows for the arrest of terrorists there and their transfer into Israel for interrogation and prevention of attacks, etc.

Once again, we see that it is dangerous to trust only politicians because sometimes lust and personal interest outweigh the good and peace of the public

Without someone who supervises from above and stops when they overdo it, we will probably cease to exist here.
What's more, there is no division of power between the upper and lower houses for midterm elections, etc.
But all governmental power concentrated solely in the hands of a prime minister who also holds the majority in the Knesset is a recipe for the elimination of Israel…

אביב replied 3 years ago

Sorry for the extensive digging, but is a column expected to be published soon on the overriding clause that is shaking the country? (Both a reference to the law in an ideal reality and a reference to the law in today's political reality.)

מיכי Staff replied 3 years ago

Very soon. About the whole legal dispute.

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