In three months, the recruitment law designed to regulate the recruitment of ultra-Orthodox students studying in yeshiva will expire. The government will once again have to deal with the High Court of Justice, which invalidated the law several times and ruled that it is unequal and against the basic law of human dignity and freedom. The superseding clause, which the emerging government will include in the coalition agreements, is intended to allow the legislation with a majority of 61 members of the Knesset – despite the High Court’s position . Other laws that have been invalidated in the past are the infiltrators law and the law on the deportation of terrorist families.
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Senior jurists explain that in the current situation, where the status of fundamental laws is not regulated, judicial review is very important, and it is the only system of checks and balances that exists for majority rule. The situation today is that basic laws can be enacted in any majority, and basic laws can be changed in any majority. For example, the government may change the basic law of the government to allow Shas chairman Aryeh Deri to be appointed a senior minister despite his conviction, if the chairman of the election commission decides otherwise and if the High Court intervenes.
For years, the right-wing parties have sought to restrict the intervention of the High Court of Justice, and the issue is subject to public controversy. But the gap between the positions on the political spectrum made it impossible to pass the move. Last year, a team established by Justice Minister Gideon Sa’ar sat down to enact the Basic Law of Legislation, which will regulate legal status The basis, the High Court’s possibility to intervene and the superseding clause. But the gaps remained and no agreement was reached between the members of the committee.
The reform at hand: to bypass the High Court by 61 MKs
A superseding clause means giving the Knesset the possibility to act contrary to the ruling of the High Court, which annuls laws that contradict the basic laws. According to the wording that the emerging coalition wants to promote, the majority required to overcome the High Court ruling will be 61 members of the Knesset. The fear of the opponents of the proposal is that it will allow a narrow majority to act without judicial review. Senior jurists warn that the enactment of a superseding clause in this form will empty any protection of the rights of the minority and will abolish the separation of powers model which is one of the basic principles of democracy. On the other hand, the supporters of the move claim that the High Court’s judicial review transferred the right of the last word in determining the laws of the state from the Knesset to the Supreme Court.
The High Court’s intervention in the activities of the Knesset and the government is intended to prevent the use of the will of the majority for the purpose of trampling on human rights and minority rights. Prof. Susie Navot, deputy director of the Israel Democracy Institute, says that due to the lack of regularization of the status of the Basic Laws, the rules of the game can be changed and there are no checks and balances, “the Authority The judge is the main authority that has the power to balance the power of the majority.” According to her, “a ruling overruled by a majority of 61 MKs is the cancellation of the High Court’s authority. It will be possible to overcome everything that the High Court rules. The result will be the concentration of governmental power in the hands of one authority.”
Prof. Mordechai Kermanitzer, a senior fellow at the Israel Democracy Institute and emeritus professor of law at the Hebrew University, who opposes the superseding clause in any majority, warns that “what stands behind the proposals is the majority’s pursuit of unlimited power. This contradicts every democratic concept.” Kremenitzer believes that the concept of democracy that is expressed in the passage of overcoming, is a primitive concept – that most people are allowed to do whatever they want. “But you can’t trust a majority not to arbitrarily violate human and minority rights. There is no other mechanism in liberal democracy to protect the rights of the minority except for judicial review.”
On the other hand, Attorney Aharon Gerber, from the Kehalat Forum, supports the initiative and claims that “today any fundamental law can be changed with a simple majority.” The fundamental law of human dignity and freedom, on which the constitutional revolution took place, was enacted by a majority of 32 supporters against 21 opponents. It would not be democratic if such a law would bind the current Knesset and lead to the disqualification of primary legislation.” Also, attorney Ze’ev Lev from the Movement for Governance and Democracy says that “in Israel, the Supreme Court annuls laws by a majority of a single judge, who interprets a basic law passed by 32 MKs. Therefore, the override should require the annulment of a law only in the composition of all Supreme Court justices, and if the Knesset wants to override, it will do so with a simple majority.”
Prof. Yaniv Roznai, research fellow at the end and academic director of the Rubinstein Center for Constitutional Challenges at Reichman University says that “Israel is the only democracy in the world that does not have political power decentralization mechanisms such as two houses in the parliament, regional elections, a federal regime, a presidential regime, or subordination to international organizations, As is the case in other countries. Therefore, it is not correct to go for a model of overcoming.” At the same time, he is aware of the arguments of the other side and agrees that a compromise should be found.
The proposed outline: realistic, not utopian
Therefore, the Purpose Institute for Israeli Policy offers an outline for the legislation of a superseding clause under limited conditions, and only within the overall regulation of the status of the Basic Laws and the anchoring of judicial review – within the Basic Law of Legislation. The Purpose Institute is a non-political applied research institute that deals with public policy, society, and governance issues. The proposed outline stems from the understanding that the political conditions in Israel require a realistic and not a utopian model. According to them, a superseding clause in itself is an unsuccessful idea, but in view of the political conditions, a way must be found to regulate the intervention between the authorities. According to Dr. Elad Gil, head of research at the institute, “We live in a political reality and this is part of the compromises. The series of the rules of the game will mean that they will not use the override clause to remove any restraint from the government.”
Binyamin Netanyahu / Photo: Dani Shem Tov, spokeswoman for the Knesset
The proposed outline is based on conversations with retired supreme judges, jurists in Israel and around the world, and civil society bodies. The draft proposes to establish a superseding clause only as part of an overall move of the series that recognizes the authority of the Court of Justice to control the activities of the Knesset. So that it is determined that basic laws have supremacy and that the supreme judges can only annul a law in an expanded composition with a two-thirds majority. In this situation, as a compromise, they propose a superseding clause conditional on a majority of 65 MKs of which at least 5 are members of the opposition, or 70 MKs without the opposition. Another and significant restriction they propose is not to allow interference in invalidating laws concerning the right to life and liberty and the right to choose and be elected, for example – the death penalty. Within the outline, It is also proposed that the law be valid for four years and another extension would require 70 Knesset members.
“Each side has unconventional weapons today”
However, even an override clause with a majority of 65 members of the Knesset may harm the rights of minorities. To this, Dr. Gil replies that “we have to remember that we are living on the brink of a constitutional crisis. At any given moment, the Knesset can tell the High Court that it is changing the fundamental law of human dignity and freedom. Each side currently has an unconventional weapon. Our model is based on a controlled view of the explosiveness in relations.” He emphasizes that the regulation should only be within the framework of a general legislative basic law.
According to him, “There is now an amok to pass a passage of empowerment as quickly as possible. On the other hand, there is another camp that regards the issue of empowerment as the end of democracy. They forget that even today the Knesset has the last word. The Knesset can change the Basic Law on Human Dignity and Freedom with a majority of three Knesset members against one”.
According to Prof. Roznai, it is appropriate to talk about a superseding clause only within the overall series of the basic laws. Even then, according to him, there is: “to make sure that the majority for overcoming is large, that it is not possible to overcome the core of democratic rights and that the overcoming is limited in time.” He emphasizes the importance of limiting the rights in which it is forbidden to interfere at all, including equality in elections, the right to choose and be elected, and the right to life.
There are countries with a superseding clause. So what is the problem anyway? / Oria Bar-Meir, Globes’ whistleblower
Over the years, various politicians have tried to justify the legislation of a superseding clause through the fact that it is practiced around the world. Indeed, the overreach clause in the format proposed in the emerging coalition in Israel currently exists in three countries. The most prominent example is Canada, where Article 33 of the Bill of Rights states that laws that contradict the Bill of Rights can be passed. A law passed in this manner will be in effect for five years, and can be renewed again and again. In Canada there is not even a special majority requirement. However, in practice the clause has never been used at the federal level, and the provinces have only sporadically used it. The exception is Quebec, which upon approval of the Bill of Rights used the superseding clause to declare that all of Quebec’s existing laws remain in force even if they contradict the Bill. According to Prof. Rebecca Weil, Quebec’s move meant that in Canada “the superseding clause is seen as a contemptible mechanism”.
The second country is Finland, whose constitution allows ordinary legislation to deviate from the constitution and on the condition that it goes through the procedures for passing constitutional amendments (which require a special majority) and that it is written explicitly that this is how the law was adopted. Until the year 2000, the use of the superseding clause was frequent in Finland, but then an amendment to the constitution was passed that limited the ability to use it and its use was reduced. The third is the state of Victoria, Australia. That’s where the Charter for Human Rights and Duties passed in 2006. The Charter does not have a special constitutional status and the courts can at most point out that laws conflict with the Charter, but not invalidate them. Still, the charter also includes a clause that allows laws that contradict it to be passed in special circumstances.
Differences in the structure of the separation of powers
It is important to note that experts point out that in other countries there are other mechanisms that allow the legislative authority to prevail over the rulings of the judicial authority, which arise from differences between the types of regimes (parliamentary versus presidential, federal versus unitary, etc.).