Outgoing Justice Minister Gideon Sa'ar warned repeatedly during the election campaign earlier this year that the incoming coalition will end up changing Israel's form of governance from a liberal to an authoritarian democracy. Yet in a press briefing to summarize his tenure, Sa'ar projected calm. He did not project doomsday like some of his fellow outgoing ministers, even regarding an imbalanced Override Clause – which Sa'ar says could obliterate the High Court's ability to oversee the legislature.
"We learned from [former prime minister Menachem] Begin something simple – there is no eternal government. The government's fate is to be replaced, and the constitutional rules of the game need to survive for the long term," Sa'ar said.
"Changing the rules of the game need to be done in an evolutionary, not revolutionary manner, through dialogue and making as broad an agreement as possible, and not extreme legislation with a narrow majority," he added.
If the incoming coalition changes the rules of the game with a narrow majority, the opposition will fight with the parliamentary tools at its disposal, and cancel the law as soon as it takes power again – and the people of Israel will be the ones to pay the price, Sa'ar said.
"The correct and wise approach is to reach wide agreement – not total, but wide agreement," he said.
There is also a strong element that will be able to curb any rash action by the government – public opinion. Over-aggressiveness tends to be hit by a boomerang effect down the road, Sa'ar said
"Over-aggressiveness is never the right thing to do. There need to be reforms – but evolutional reforms based on the judicial tradition and method," Sa'ar said.
"Our mistake as a society was that we missed our chance to form a constitution in the country's early days. As time went on, Israeli society became more polarized and we moved away from the ability to set a consensus on the rules of the game," he added.
The importance of checks and balances in Israeli politics
Regarding the Override Clause, the importance is the checks and balances, and there are three issues involved in the matter, Sa'ar said.
The first is to regulate how to legislate or amend a Basic Law – there needs to be a change here, and the amendments to the Basic Law: The Government which passed this week – known as the "Deri and Smotrich" Laws – were not conducted properly, he argued.
The second is to determine the mechanism that enables the High Court to cancel a law, and here there are two options, Sa'ar said – a centralized model, or a decentralized model. According to the latter, any High Court Justice in any makeup can strike down a Knesset law.
The other, which Sa'ar said was his preferred option, was to determine a minimum of justices necessary to hear an appeal against a law and to strike down a law – but not an overwhelming majority of 12 justices like in other proposals, which would make it nearly impossible, Sa'ar argued.
The third issue is a majority in the Knesset is required to overrule a high court ruling that is not just 61 members of Knesset. Sa'ar's preferred choice is 65 MKs – and had nothing to do with the fact that the incoming coalition is 64 MKs. He has supported 65 for at least a decade, Sa'ar said.
In terms of the Justice Ministry, Sa'ar admitted that his views on an array of issues were different from that of his successor, Likud MK Yariv Levin. But he prepared a proper handover process and would hand over the ministry in a better place than he received it, with a number of reforms that were stalled during the election ready for the new minister to take over, he said.
The ministry itself is in better shape, Sa'ar said. When he received it, many key positions were manned by fill-ins. He managed to appoint worthy officials to many of them, including an attorney general, state attorney, four High Court justices, five out of seven deputy attorney generals, and others.
The ministry under his stewardship also managed to create or at least begin reform on a number of matters.
Regarding the fight against crime in the Arab sector, Sa'ar noted the law for minimum punishments for crimes of holding or selling illegal weapons; an amendment to involve more courts to deal with economic crime, thus improving the fight against the funding of crime gangs; the law to conduct a search without a warrant in particular circumstances in order to precede the destruction of evidence; and more.
On civil rights in investigations and trials, Sa'ar noted the community courts law, which grows the options for rehabilitation of criminals instead of repeat incarceration; a law that passed, to enable a judge to reject evidence that was obtained illegally; a basic law regarding rights in criminal proceedings, which passed its first reading in the Knesset; and others.
On decriminalization, Sa'ar noted a law proposal to reduce the number of offenses that are considered criminal and make them civil offenses instead, in order to ease the pressure on the courts. These include the decriminalization of cannabis use, as well the passing the first reading of a law to replace many criminal offenses related to traffic violations with enlarged fines.
Finally, on transparency, Sa'ar noted his move to hold public hearings for candidates for high court judges – which was approved in April by the Judicial Appointments Committee by an 8-1 majority, as well as decrees that for the first-time force associations from the Ottoman period that were previously exempt to report their operations transparently.