What’s wrong with the “override clause” for High Court of Justice rulings?
The "override clause" implies that the Knesset may preclude any matter from subjection to judicial review (i.e. from the possibility that it will be ruled out for unconstitutional reasons, as it contradicts basic laws or violates human rights); or that the Knesset may, in the event that the High Court of Justice (HCJ) determines that a specific legislative act is unconstitutional, retroactively re-enact it despite lack of constitutionality and severity.
Those who support the “override clause” claim that if there is a majority in the Knesset for a piece of legislation, then, by proxy, it is the will of the people/voters that it should be enacted, and that the matter apparently reflects the values of the majority, thus making it irrational that a group of people (High Court judges) neither elected by nor representing the people will decide against the opinion of the chosen majority.
What is the problem with these claims? And why does the “override clause” harm democracy and human rights?
1. In Israel, the only defender of human rights and minorities is the HCJ. Basic Laws constitute Israel's unwritten constitution, alongside values anchored in the Declaration of Independence and other relevant sources. The HCJ's role is to examine the actions of the government and the activities of the Knesset in light of these laws and values.
2. The existence of a democratic government depends first and foremost on the separation of powers and the balance between them. The system of checks and balances among authorities ensures protection against the tyranny of the majority as well as the rights of minority groups of all kinds. In fact, the entire concept of a constitution is intended to prevent the majority from abusing the minority.
3. In Israel, the structure of the parliamentary system is such that there is no real separation between the Knesset and the government. Therefore, the system of checks and balances between the government/Knesset and the HCJ is particularly vital in preventing a complete lack of government restraint and in the protection of political minorities of all kinds. In contrast to checks and balances that exist in other systems, such as an upper house in parliament, a president who has veto power over legislation, or subordination to international courts such as the European Court of Human Rights, in Israel, the only means of restraint against harmful legislation in the Knesset is the HCJ.
4. Although judges of the courts and the HCJ in particular are appointed and not elected, the courts work as a professional system that abides by the rule of law and its implementation, and are obligated to represent the public interest professionally and objectively with regard to the issues brought before them. Despite all the well-known limitations in these contexts, the basic commitment of judges is a commitment to the rule of law and the public. It should also be noted that there are four politicians in the Judicial Selection Committee, and that it is impossible to appoint judges to the HCJ without forming an agreement between them and the rest of the professionals on the committee, such that the appointment involves significant political involvement and influences the character and values of the serving judges.
5. The Knesset, on the other hand, operates naturally and legitimately on behalf of a variety of political, public, media, and populist interests — in order to promote various agendas that are not always subject to the rule of law, the constitutional regime, or the protection of human rights.
6. The “override clause” implies the subordination of fundamental principles— the system of constitutional values, the rule of law, and human rights—solely in favor of the political interests of the political majority and without any balance whatsoever. It entails the complete transfer of decision making to a political body, which is legitimately driven by political agendas, and is naturally subject to varied political and public pressure. This is done through completely neutralizing the role of the HCJ in balancing interests and adequately curbing the government's unrestrained power.
7. It is true that the political majority—even a small majority— has the right to amend the constitution (or the Basic Laws, in Israel). But we must remember that amendment of the constitution comes at the cost of public relations. When politicians openly violate the protection of human rights in the constitution, they pay a price for doing so and are thus careful in this arena. However, the possibility of overriding a specific law in the constitution is easier in terms of public relations, and thus will be perceived as a "response" to a HCJ ruling, in the sense of "correcting a mistake." This is also the reason that the “override clause” doesn't exist anywhere in the world, aside from Canada, where it was introduced as a compromise with Quebec, a province with distinct cultural uniqueness, which was previously subject to the Canadian federal constitution without the option to override. There is no such mechanism in any other constitution in the world.
8. Even a majority (which at present seems entirely theoretical) of 80 or more members of Knesset, does not solve the problem of harming checks and balances between state authorities. First, there is no difficulty in achieving such a majority in the Knesset with regard to particularly controversial issues, due to significant public and political pressure in such cases, especially when it comes to protecting unpopular minority groups such as Arabs, refugees, LGBT, prisoners, etc. Moreover, once there is a concession to the principle that there are doctrines that cannot be harmed by any majority, the question of what a majority is becomes vulnerable and the concept will clearly be eroded toward the completion of the reform.
9. Second, it is inappropriate, in favor of any majority, to abandon human rights and the rule of law to a body that is naturally and legitimately driven by political interests. These are absolute values that must be protected from political bodies through the court. Separation of powers is intended precisely for this purpose. Those who believe in a democratic government and human rights as absolute values cannot give them up simply because "most people" are willing to give up their share at any given moment (generally when the matter harms "the other").
10. Legislation of the “override clause” to narrowly apply to specific matters is also an issue and does not solve the problem, primarily because the same principles (for the protection of human rights, minorities, and the rule of law) also apply to any random subject the majority may choose to tackle. Beyond this, such legislation constitutes a transition from a psychological barrier to opening the door to override clauses on a range of issues that will be determined from time to time according to political need at any given moment.
11. We can and should learn from other governments — whenever radical legislative changes that violate human rights and a democratic government have been declared, they were always accompanied by a change in the authority of the HCJ/constitutionality. Clearly, in order to legislate laws that violate human rights or our democratic government’s system of balances, it is necessary to neutralize the intervention of balancing systems — namely the court, the state, law enforcement, the media and the third sector. The “override clause” is a means of bypassing the HCJ, and thus should not be permitted in any sense.
By Adv. Debbie Gild-Hayo, Director of Policy Advocacy
Association for Civil Rights in Israel