Prepared by the Knesset Research and InformationCenter at the request of MK Eliezer Cohen Translated by Constitution for Israel office (ADH). Introduction This document was prepared at the request of MK Eliezer Cohen in preparation for the delegation of members of the Constitution, Law, and Justice Committee to the United States and Canada in May of 2005. The document contains a brief overview of the constitutional meaning of the Israeli “limitations” and “override” clauses and a number of parallels around the world, with particular emphasis on the Canadian examples. The translation is unofficial, and is courtesy of the CFI team.
Limitations Clauses
The Israeli Limitations Clause is a permanent instruction in Article 4 of the Basic Law: Freedom of Occupation and Article 8 of the Basic Law: Human Dignity and Liberty which states: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” The limitations clause has two important implications:
It is the source from which the Supreme Court drew its authority of Judicial review of Knesset legislation. This principle was constructed in United Bank Mizrahi v. Migdal Cooperative (HC 6821/93) (“Bank Mizrahi”).
The Limitations Clause anchors the principle according to which all rights are relative, and as such may be limited in certain situations. In the absence of this clause one would conclude that rights are absolute and cannot be abrogated in any instance.[1]
There are three possible approaches regarding limitations clauses:
Non-inclusion of a limitations clause. The US Constitution does not include such a clause and so, it would appear, the rights established therein are absolute and cannot be abrogated in any situation. Still, US courts have adopted a de facto philosophy of relative rights.
Inclusion of a general limitations clause. This is the approach used in Canada, wherein a limitations clause covers all rights listed in the Charter of Rights and Freedoms.[2]
Inclusion of specific limitations clauses. This approach involves a multiplicity of limitations clauses attached to each right. Rights without this limitations clause are, apparently, absolute. This type of approach exists in Germany.
The inspiration for Israel’s limitations clauses are generally attributed to Section 1 of Canada’s Charter of Rights and Freedoms: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
[1] Justice Antonin Scalia of the US Supreme Court considered this point in a meeting with the delegation from the Knesset in May of 2005. In answer to a question, he agreed that “absolute rights” are, in practice, relative just as are “limited rights.” Rights naturally come into conflict with each other, and one is upheld at the expense of limiting another. Scalia warned strongle against a limitations clause which would place the responsibility for deciding on the precise boundaries of rights at the clear and sole discretion of the court. He suggested that leaving out a limitations clause would allow the Court to accord greater respect to both the constitution and the decisions of parliament.
[2] Attorney General and Justice Minister Irwin Cottler conceded that, despite the general limitations clause in Canada, the specific clause guaranteeing equal rights for women explicitly calls the right absolute, contradicting the general limitations clause in the Canadian Charter and excluding equality for women from the umbrella of relativism.
Override (“Notwithstanding”) Clauses
Override (“Notwithstanding”) Clauses The Israeli “override clause” is a directive established in Article 8 of the Basic Law: Freedom of Occupation which states: “8. (A). A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4, if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein.” The override clause allows the Knesset to pass legislation for a predetermined period of four years that does not conform to the conditions of the limitations clause, subject to three conditions: (A) the departure from the right is done by legislation; (B) the law includes an express declaration of non-conformity; (C) the law is approved by at least 61 members of Knesset. The inspiration for the override clause is, like the limitations clause, generally ascribed to Canada’s Charter of Rights and Freedoms (Section 33), which establishes that: “(1) Parliament of the legislature of a province may expressly declare an act…” (click here for full text) Canada’s override or “notwithstanding clause” allows rights in the charter to be overridden for a renewable period of five years. Precedents in Israel and Canada To this day Israel has made use of its override clause only once, in the context of the Meat Law of 1994, which puts restrictions on the import of non-kosher meat. The Notwithstanding Clause in Canada has been used three times:
Legislation in the province of Quebec establishing that commercial signage must be in French alone. When the Supreme Court overruled this law as unconstitutional, Quebec’s legislature revised it to include a clause expressly overriding the Charter by virtue of Section 33.
Another case involved Saskatchewan legislation on the subject of strikes
Between 1982 and 1985 all laws proposed in Quebec invoked Section 33 of the Charter, declaring the law legitimate notwithstanding sections 2 – 35 of the Charter. This was a symbolic expression of dissatisfaction with the constitutional reform that was undertaken against the will of the Quebec legislature.
Differences between the Israeli and Canadian arrangements
Chief Justice Aharon Barak identifies in his book “Constitutional Interpretation” two differences between the Israeli and Canadian arrangements:
In Israel legislation including an override clause must be approved by a special majority of 61 MKs; in Canada no special majority is required.
Overriding legislation in Israel is in effect for 4 years, and it can be renewed only by re-legislating the law. In Canada, however, the overriding legislation sunsets only after five years, at which time the override clause expires, but the law itself does not. Thus, renewing the override only requires a re-legislation of the override clause.
Questions for further study
Is the limitations clause itself subject to the override clause, such that it must befit the values of the State of Israel, be enacted for a proper purpose, and to no greater an extent than is necessary?
If a law which includes an override is declared to conform to the constitution (rendering that override clause, in hindsight, superfluous), does the law continue to stand after the 4 or 5 year sunset?
Limitations Clauses around the world
Estonia
“Article 11 [Restrictions] Rights and liberties may be restricted only in accordance with the Constitution. Restrictions may be implemented only insofar as they are necessary in a democratic society, and their imposition may not distort the nature of rights and liberties.”
Germany
“Article 19 (Restriction of Basic Rights) (1) Insofar as under this Basic Law a basic right may be restricted by or pursuant to a law, the law must apply generally and not solely to an individual case. Furthermore the law must name the basic right, including the article. (2) In no case may a basic right be infringed upon in its essential content. (3) The basic rights apply also to corporations established under German Public law to the extent tha the nature of such rights permits. (4) Should any person’s right be violated by public authority, recourse to the court shall be open to him. If no other court has jurisdiction, recourse shall be to the ordinary courts.”
South Africa
“Section 36 Limitation of Rights (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including – a. The nature of the right; b. The importance of the purpose of the limitation; c. The nature and extent of the limitation; d. The relation between the limitation and its purpose; and e. Less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”
Hungary
Hungary has a general limitations clause but also has some absolute rights. The general clause establishes that: “Article 8 [Fundamental Rights] (2)…In the Republic of Hungary regulations pertaining to fundamental rights and duties are determined by law; such law, however, may not restrict the basic meaning and contents of fundamental rights…” The directives on absolute rights exists on the subjects of scientific and medical experimentation on humans: “Article 54 [Life, Dignity, Corporal Integrity] (1) In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily denied of these rights. (2) No one shall be subject to torture or to cruel, inhuman, or humiliating treatment or punishment. Under no circumstances shall anyone be subjected to medical or scientific experiments without his prior consent.”
New Zealand
New Zealand’s limitation clause – both the aspect which enables judicial review and that which establishes the relativism of rights – are as follows: “Section 4 [Other Enactments] No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights): (a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) Decline to apply any provision of this enactment by reason only that the provision is inconsistent with any provision of this Bill or Rights. Section 5 [Justified Limitations] Subject to Section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only o such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Spain
Article 53 [Regulation, Judicial Protection]
The rights and liberties recognized in the second chapter of the present Title are binding on all public authorities. Only by law, which in ever case must respect their essential content, could the exercise of such rights and liberties be regulated, and they shall be protected in accordance with the provisions of Article 161(1)b.
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Poland
Article 31 (1)… (2)… (3) Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.
Portugal
Article 18 [Legal force] (1)… (2) Rights, freedoms, and safeguards may be restricted by law in only those cases expressly provided for in the Constitution. Restrictions are limited to what is necessary to safeguard other rights or interests protected by the Constitution. (3) Laws restricting rights, freedoms, and safeguards have to be general and abstract in character, may not have retroactive effects and may not limit in extent and scope the essential content of constitutional provisions.
Slovakia
Article 13 1…. 2. Limits to basic rights and liberties can be set only by law, under conditions laid down in this Constitution. 3. Legal restrictions of constitutional rights and liberties must apply equally to all cases that meet the set conditions. 4. When restricting constitutional rights and liberties, attention must be paid to their essence and meaning. These restrictions must not be used for any other than the set purpose.
Sweden
Sweden has a number of limitations clause and several absolute rights: Article 5 All citizens shall be protected against corporal punishment. All citizens shall likewise be protected against torture or any medical influence or intervention for the purpose of extorting or suppressing statements. Article 12 (1) The rights and freedoms referred to in Article 1 (0.1)-(0.5), in articles 6, 8, and 11(2) may be restricted by law to the extent provided for in articles 13-16. After authorization in law, they may be restricted by statutory order in the cases referred to in Chapter 8, Article 7 (1.7), and in Chapter 8, Article 10. Freedom of assembly and the freedom to demonstrate may similarly be restricted also in the cases referred to in Article 14 (1), second sentence. (2) The restrictions referred to in Paragraph (1) may be imposed only to achieve a purpose acceptable in a democratic society. The restriction may never exceed what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the foundations of democracy. No restriction may be imposed solely on grounds of political, religious, cultural or other such opinions. (3) Government bills of the nature referred to in Paragraph (1), or Government bills for the amendment or repeal of such legislation, shall, if not rejected by the Parliament, be held in suspense for a period of not less than twelve months from the date on which the first report of a Parliament Committee on the Bill was submitted to the Chamber of the Parliament, on a motion by no fewer than ten members. The above provision notwithstanding, the Parliament may approve the bill if no fewer less than five sixths of those voting concur. (4) Paragraph (3) shall not apply to any bill prolonging the life of legislation for a period of up to two years. Nor shall the said paragraph apply to any bill concerned exclusively with 1) prohibition of the disclosure of matters of which a person may have acquired knowledge in the public service, or in the performance of official duties, when secrecy is called for having regard to interests under Chapter 2, Article 2 of the Freedom of the Press Act; 2) house searches and similar intrusions; or 3) deprivation of liberty imposed as a penal sanction for a specific act or omission. (5) The Committee on the Constitution decides on behalf of the Parliament whether Paragraph (3) is applicable in respect of a specific bill. Article 13
(1) Freedom of expression and freedom of information may be restricted having regard to the security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime. Freedom of expression may also be restricted in economic activities. Freedom of expression and freedom of information may otherwise be restricted only where particularly important reasons so warrant. (2) In judging what restrictions may be made by virtue of Paragraph (1) particular regard shall be paid to the importance of the widest possible freedom of expression and freedom of information in political, religious, professional, scientific and cultural matters. (3) The issuing of rules and regulations which govern in detail a particular manner of disseminating or receiving information without regard to its content shall not be deemed to restrict freedom of expression or freedom of information. Article 14
(1) Freedom of assembly and the freedom to demonstrate may be restricted for the purpose of preserving public safety and order at the meeting or demonstration, or having regard to the circulation of traffic. These freedoms may otherwise be restricted only out of regard for the security of the Realm or for the purpose of combating an epidemic. (2) Freedom of association may be restricted only in respect of organizations whose activities are of a military nature or the like, or which involve the persecution of a population group of a particular race, skin color, or ethnic origin. Article 15 No Act of law or other statutory instrument may entail the discrimination of any citizen because he belongs to a minority on grounds of race, skin color, or ethnic origin. Article 16 No Act of law or other statutory instrument may entail the discrimination of any citizen on grounds of sex, unless the relevant provision forms part of efforts to bring about equality between men and women or relates to compulsory military service or any corresponding compulsory national service.
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