Inherent Limits on the Override Power after the Israeli Election

—Rivka Weill, Harry Radzyner Law School, IDC

Within the first twenty-four hours after the Israeli election, the future political partners of PM Netanyahu raised the demand to enact a general override clause as part of the Basic Laws. They believe that this override clause will empower them to govern without the intervention of the High Court of Justice. The Ultra-Orthodox parties hope to use the override to enact a statute that will exempt Ultra-Orthodox men from the mandatory army service. PM Netanyahu believes that the override may immunize him from criminal prosecution while in power. The enactment of a general override power will authorize the Israeli legislature (Knesset) to enact a statute stating explicitly that it is valid despite its infringement of constitutional rights and values. With such a declaration, the legislature will take public responsibility for its actions and at the same time immunize the statute from invalidation by the courts. A somewhat similar override clause exists in the Canadian Charter. No less than the authority to have the “last word” on the protection of constitutional rights and values is at stake. Will it be accorded to the Israeli courts or to the legislature? The political discussion is conducted as though all the issues are open to bargaining, from the very authority to override to the design of the override clause.

Granting the Israeli legislature a general override power is consistent with the constitutional history of the State of Israel prior to the constitutional revolution. During the founding era (1948-1992), the Knesset consistently overrode section 4 of Basic Law: The Knesset, which guarantees equal elections, and requires 61 Members of Knesset (MKs) to amend it. When the Court invalidated a law for violating section 4 of the Basic Law, the Knesset often re-enacted the law by a majority of 61 MKs, declaring that “to remove any doubt” the law is retroactively effective from the date of its original enactment. The Knesset paid “lip service” to judicial review power during this period, and the Court, including Justice Barak, approved the legitimacy of this practice.[1]

The override power is also consistent with the various manifestations of this power in Israeli constitutional law following the enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation in 1992. Their enactment led the Supreme Court in the United Mizrahi Bank decision in 1995 to declare that a constitutional revolution occurred, that the Basic Laws are Israel’s Constitution and that the courts are empowered to exercise judicial review. In the very decision, the minority Justice Cheshin held that the Knesset has an implicit authority to override all Basic Laws.[2]

There is already an explicit override clause in Basic Law: Freedom of Occupation. The Knesset enacted it as part of a political formula which traded support for the Oslo peace process in exchange for retaining the status quo in religious matters. At first, the Knesset adopted an explicit override clause in Basic Law: Freedom of Occupation to immunize the prohibition on imports of non-Kosher meat from judicial review. Later, the late PM Yitzhak Rabin and the political party, Shas, formulated an “improved” mechanism to preserve the religious status quo. They signed a coalition agreement, providing that if a committee of experts finds that the Court deviated from the religious status quo, the parties undertake to overturn the judicial rulings by appropriate legislation. In the famous Velner decision, the Court found the coalition agreement inappropriate but refrained from invalidating it for fear that the public would lose confidence in the Court, since the Court had a personal stake in the decision.

The Court held that the pre-commitment in the coalition agreement to overturn any ruling deviating from the religious status quo amounted to an inadequate dialogue between the branches of government. The legislature did not manifest the willingness to listen with an “open heart” and a “receptive soul” to judicial reasoning. The coalition agreement also posed an implicit threat to the independence of the judiciary. The legislative branch ostensibly warned the judiciary not to rule in a way that deviates from the religious status quo, because such a ruling would be reversed. Instead of fearing the law, judges would fear the legislature. When the public sees how the legislature treats the judiciary, it will lose confidence in the judiciary.[3]

While the override mechanism is compatible with the history of the Israeli Constitution, there is a justified concern that its adoption as an explicit general mechanism will lead to frequent use of it and weaken the protection of constitutional rights in Israel. In a forthcoming article, I contend that there are inherent limits on the legislative override power that may be enforced by the Court.[4] These inherent limitations stem from the nature of the override power as an instrument of “infringement,” rather than a tool for “amending” the Constitution. This discussion may also be relevant to Canada these days with regard to the proposed use of the override to ban the wearing of religious symbols.

The override must be limited in duration to constitute a mechanism of “infringement” rather than a mechanism of constitutional “amendment.” The temporariness of the override enables the preservation of the distinction between the supreme status of the constituent power and the status of the ordinary legislature. Thus, for instance, there is an inherent limitation on the number of times the legislature may renew an override on the same law. When the override is repeatedly renewed until it becomes a permanent feature, the Court is empowered to require the legislature to use the procedure for amending the Constitution. Similarly, the override must be specific to a particular law, and not sweeping, in order to be a mechanism of infringement. Retroactive override is problematic not only because it contradicts rule of law principles, but also because it is incompatible with the supremacy of the Constitution.

Furthermore, the override as a tool of “infringement” cannot contradict the most basic fundamental values of the Constitution. The supreme principles of the Israeli Constitution are the characterization of the State as Jewish and Democratic, according to the Israeli Supreme Court. Justice Cheshin, who recognized the inherent authority of the Knesset to override the Basic Laws even without an explicit clause to that effect, also held that granting a sweeping exemption from enlistment to Ultra-Orthodox students contradicts the supreme principles of the Israeli Constitution. In his view, the character of the state as Jewish and Democratic requires that everyone equally shares the burden (which he insisted was a right) to be enlisted. The enactment of the override clause will not empower the Knesset to overcome the most fundamental values of Israeli society governed under the rule of law.

Suggested citation: Rivka Weill, Inherent Limits on the Override Power after the Israeli Election, Int’l J. Const. L. Blog, Apr. 18, 2019, at: http://www.iconnectblog.com/2019/04/inherent-limits-on-the-override-power-after-the-israeli-election/

---

[1] Rivka Weill, Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 Hastings Constitutional Law Quarterly 457 (2012).

[2] Rivka Weill, Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why WE Should Care, 30 Berkeley Journal of International Law 349 (2012).

[3] Rivka Weill, Juxtaposing Constitution-Making and Constitutional-Infringement Mechanisms in Israel and Canada: On the Interplay between Common Law Override and Sunset Override, 49 Isr. L. Rev. 103 (2016).

[4] Rivka Weill, The Inherent Limits on the Override Power in the Israeli Constitution, intended for Grunis Book (Aharon Barak et al. eds. forthcoming) (Hebrew), available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3370357.