Constitution for Israel - Override Clauses

The Neeman Commission proposed that the Constitution allow the Knesset to override, with a special majority of 70 MKs, a Supreme Court decision voiding legislation.

Professor Tzvi Kahana preferred the term ‘exception clause’, stating that ‘override’ (or, in the original Hebrew, hitgabrut, more literally translated as “overcoming”) has a positive connotation, whereas ‘exception’ is neutral. Professor Kahana pointed out that, contrary to popular belief, the term ‘override’ appears nowhere in the Canadian Constitution.

Required majority and procedure for override clauses

Dr. Yitzchak Klein feared that the requirement of a special majority of 70 MKs for passing override clauses would result in instances of the court enacting judicial legislation which the Knesset, in practice, would not be able to override, despite strong public support.

Amir Avramovitz proposed that the required majority for passing an override clause be identical to that required for passing an amendment.

The Committee decided to propose that override clauses require an absolute majority of 61 MKs, with an alternative proposal requiring a special majority of 70 MKs.

The committee decided that despite the fact that override clauses would refer to existing (but voided) legislation, passage of an override clause would necessitate three readings. This was viewed as beneficial, in that it would facilitate public debate.

Limits on override clauses

According to the Neeman proposal, the override mechanism could be utilized for ten years after the passage of the Constitution. An override would remain in effect for up to five years, (meaning that the latest possible override clause, passed exactly ten years after the passage of the Constitution, would expire fifteen years after the passage of the Constitution).

The Neeman Commission’s recommendation was based on lessons learned from the Basic Law: Freedom of Occupation, which indicated to the Commission that a gradual move toward supremacy of the Constitution of ordinary legislation is preferable.

Additionally, Professor Neeman stated that a delicate balance is struck in this proposal between the role of the Supreme Court in exercising judicial review, and the role of the Knesset as the supreme legislator. Ron Gazit added that this is particularly so given the requirement that the Supreme Court exercise judicial review only with a full quorum.

Professor Zilbershatz felt that in order for the Constitution to be acceptable, politically, the Knesset might have to be empowered with the ability to legislate override clauses with no expiration date. She was hopeful that during an interim period of four years, solutions might be found that were acceptable to all sides of many conflicts.

The Committee decided to adopt a proposal giving an expiration period of four years for override clauses, and an alternate proposal giving no such expiration period. Alternate proposals also adopted by the committee would either allow or bar the Knesset from renewing the override clause for further periods.

In either version, initial legislation of override clauses would only be allowed within ten years of the passage of the Constitution.

Quantitative limits on use of override clauses

Dr. Somer put forward what he himself termed an “outrageous” proposal: Place no cumulative time limit on the effectiveness of override clauses, and allow the Knesset, by absolute majority vote of 61 MKS, (and not by special majority vote of 70 MKs), to utilize an override clause no more than five times, effective until three months beyond the end of the Knesset’s term. Each new Knesset could decide to renew an override clause; laws could be perpetually renewed by each successive Knesset, but the Knesset would thereby “waste” one of its five overrides.

MK Eitan questioned whether the Knesset, which currently can override any court decision by using a number of mechanisms, should it so choose, would agree to limit itself to five overrides. He also stressed the practical difference between recruiting 61 MKs, and recruiting 70, which he felt was more appropriate.

Dr. Reichman predicted that the Knesset would too readily decide to amend the constitution to allow a greater number of overrides.

Preemptive vs. responsive use of the override clause

The Committee discussed the question of whether an override clause could be used preemptively, or only in response to a Supreme Court decision voiding a law.

In addition to the possibilities of the Knesset preemptively or responsively overriding the court, Shimon Shetreet and Tzvi Kahana pointed out a third scenario, that of a new and constitutionally unforeseen legal question arising, which the Knesset might act upon, perhaps using an override clause, rather than waiting for a court decision to shape this new area of law.

MK Eitan disagreed with this possibility, stressing that the task of the Knesset is to legislate, while interpretation, including Constitutional interpretation, is in the sole purview of the court. Professor Yaffa zilbershatz added that a court ruling voiding a law as unconstitutional would set a certain tone in the public discourse, favorably influencing any Knesset action which might thereafter be taken.

The Committee decided that the mechanism would enable overriding only existing court decisions.

Invulnerability of certain sections of the Constitution to override clauses

Amir Avramovitz proposed that certain areas of the Constitution be designated as invulnerable to override clauses.

Professor Kahana felt that override clauses should be effective regarding any part of the Constitution, with the exception of the amendment process. Sigal Kogut suggested that override clauses also should be ineffective in supporting legislation making changes to the type or structure of government, or democratic process, specified in the Constitution.

The Committee decided that override clauses would not be effective in changing the Constitution’s section on government.

Adjustment period regarding override clauses

It was noted that during the Adjustment Period a special majority of 70 MKs would not be necessary for passage of an override clause, and further noted that the Adjustment Period would extend until the Knesset decides otherwise – meaning, in practice, that the Knesset could keep absolute-majority override power for itself in perpetuity.

Propriety of the override mechanism

Professor Kahana objected to the mechanism of a specific override clause, stating that any change or exception to the Constitution should be undertaken using the regular amendment process, even if the exception regards a very specific and mundane matter, such as sale of non-kosher meat. He cited examples of such mundane matters in the US (e.g. age of the President and Canadian (funding of French-speaking schools) constitutions, and stated that any matter that concerned the public’s elected representatives enough to spur them to action should not be viewed as too mundane to warrant inclusion in the constitutional process.

Professor Segal stated that an override clause, particularly one not requiring a special majority (but only an absolute majority, which a coalition government should be able to muster) undermines the very idea of the supremacy of the Constitution.

Eyal Sandberg and Sigal Kogut replied that certain subjects were more properly left out of the text of the Constitution, and dealt with as necessary, as exceptions to the Constitution using override or limitation clauses.

One difference between temporary override clauses and permanent parts of the Constitution, pointed out MK Eitan , regards the political decision behind them: politics involves making compromises on ideological matters in order to attain important practical goals, and political leaders – as opposed to the court - are often willing to make these compromises, so long as these compromises are not necessarily permanent.

Danger of human rights violations facilitated by override clauses

Tzvi Kahana suggested limiting the use of the override clause in such a way that it could not be used to legislate serious human rights violations.

MK Eitan replied that this goes without saying, and indeed must go without saying, as actually including such language in the Constitution would tip the balance of power to the courts. MK Eitan further opined that serious violations of human rights or other basic principles of democracy would be unconstitutional not by virtue of any court decision, but by their very nature. The court would therefore not be voiding the legislation, but simply identifying the legislation as void.

MK Eitan pointed out that, contrary to popular belief, the Knesset treats Supreme Court rulings with great respect and deference; currently, with no Constitution explicitly empowering the court to exercise judicial review, the court has voided a small number of Knesset legislative acts, while the Knesset has never used its legislative power to overturn HCJ rulings.

Tzvi Kahana stated that the court has made clear that it would, in cases of serious human rights violations, exercise judicial review even when an override clause had been utilized. This stood in contrast, he noted, to the Canadian Supreme Court, which has ruled against the possibility of judicial review of any legislation supported by a notwithstanding clause.

Override clauses as potential cause of overuse of judicial review

Prof. Amnon Rubinstein expressed concern that the availability to the Knesset of the mechanism of override clauses would tempt the Supreme Court to overuse judicial review, in the knowledge that the Knesset could then easily rewrite the law if necessary.

Override clauses concentrating excessive power in hands of the Knesset

Professor Aryeh Carmon was hesitant regarding overrides, feeling the possibility of using this mechanism would severely undermine the protection of the democratic rights which the constitution is meant to afford.

MK Reshef Chen warned of the danger that the Knesset, functioning in its dual roles as both Legislature and Constitutional Convention, would abuse its power over the citizens, and asked what mechanism is being created to avoid this danger. MK Chen stated that 70 MKs is too low a threshold for overrides, and preferred 80 or 85 MKs, after the adjustment period.

Professor Asher Maoz stated that override clauses are used in Canada in order to enable the Legislature to protect minorities with legislation favorable to them, without the court striking down said legislation. In Israel, said Professor Maoz, it is more likely that the court would be striking down legislation to protect a minority – meaning the mechanism of an override clause comes to enable the Knesset to harm the minority.

MK Avraham Ravitz, on the other hand, expressed doubt regarding the ability of the Knesset to maintain its power under the proposed Constitution using the power to amend and override, stating that in the US, even when there is nearly unanimous agreement on the necessity of repairing the constitution, in practice this is nearly impossible.

MK Ravitz stated that there are certainly instances where the Supreme Court would defend minority rights more effectively than would the Knesset, but that he nonetheless prefers this be left to the Knesset, for one simple reason: “In the Knesset, I too am represented”.

MK Ravitz agreed in principle to leaving to the discretion of the Supreme Court matters which do not include faith and opinion.

Professor Shimon Shetreet felt that the Knesset should be empowered to pass overriding legislation with any majority. Professor Shetreet stated that open debate and the marketplace of ideas in the Knesset are the citizen’s protection from Knesset abuse.

Professor Shetreet described coming to this conclusion only after witnessing the damage inflicted upon the court by the current system. Currently, when a majority of MKs finds itself in conflict with the Supreme Court, but an absolute majority of 61 MKs cannot be recruited to overcome the obstacle of the court, the court is subjected to withering attacks on its credibility. Raising the requirement, from that of an absolute majority of 61 MKs, to that of a special majority of 70 MKs, would only serve to exacerbate the problem.

Overriding the constitution vs. overriding the court’s interpretation

Professor Kahana differentiated between a clause meant to override the constitution, and one meant to override the court. In the former case, the Knesset would declare that it intends to create certain legislation, despite the fact that the legislation does not conform with constitutional requirements. In the latter case, the Knesset would specify that, in its own opinion, the legislation falls within the requirements of the Limitation Clause. Professor Kahana cited the Canadian constitution as an example of an intentionally vague document meant to be open to varied interpretations, where the court’s interpretation might be no more legitimate than the Legislature’s.

However, Professor Kahana felt that the latter type of override is undesirable, as it serves to transform the Knesset into an appeals court for Supreme Court decisions. Eyal Sandberg warned that the Knesset might too readily include such a preemptive override clause, thereby seizing the Judiciary’s authority of judicial review and interpretation.

Practical effectiveness of override clauses

Dr. Yitzchak Klein questioned whether an override clause would indeed achieve its intended effect, forcing the court to rule according to a law which the court had originally viewed as unconstitutional.

Professor Kahana replied that the court would rule differently in future cases only when the case involved the precise law which was supported by the override clause. However, MK Eitan pointed out that even if the future case, after the passage of an override clause, were identical to the original case, the court would simply find another way to circumvent the Knesset’s override, such as deciding that the case relates to a different statute.

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