(God)-fearing for the State's Security: An Accommodated Approach for Draft of Ultra-Orthodox Jews in Israel and A Fresh Look at the Right to Equality

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Few issues arouse as much emotion in Israeli politics and academia as the question of adopting an override clause, by which the Knesset would be authorized to declare laws valid even if they contradict Basic Laws. The adoption of a general, explicit override clause, in addition to the one currently found in Basic Law: Freedom of Occupation, is perceived by all sides of the debate as a “war over the home.”

On the one hand, there are those who support the adoption of an override clause in order to “return” to the Knesset its power to have the “last word” and to overcome judicial review by the Supreme Court that invalidates laws on the basis of the Basic Laws. In their view, the override clause would promote democratic values because it would create a better balance between the powers of the Court, as an unelected body, and the powers of the elected Knesset, within the framework of constitutional dialogue on the constitutionality of laws and their conformity with the Basic Laws. On the other hand, there are those who believe that the adoption of an override clause would represent the ultimate expression of “democratic erosion.” To them, the override clause expresses the “counter-revolution” to the constitutional revolution that took place in Israel in the mid-1990s and was embodied in the Bank Mizrahi case.

The force of this dispute has not waned. In this essay, I wish to focus on two questions: first, is the override clause truly “foreign” to the Israeli constitution, such that its adoption would constitute a counter-revolution intended to overturn the results of the constitutional revolution? Second, are there limits to the power of the override clause that could serve to reduce the destructive potential it may carry?

The journey to uncover the roots of the override

Over the years, I found myself repeatedly drawn to the issue of the override clause in many of my writings. I found the journey to understand its place in Israeli and comparative constitutional history fascinating. This journey was enlightening because it taught me much about the price we, as a society, pay when we construct a selective narrative about the historical development of our legal system.

My starting point was the prevailing assumption in the literature after the Bank Mizrahi case that the Israeli override clause is a Canadian import, and that it is relevant only to the Basic Law: Freedom of Occupation. Justice Cheshin’s approach in Bank Mizrahi was studied primarily as a minority opinion for the proposition that the Basic Laws are not a constitution, and that Israel does not have a constitution. Various scholars explained that Justice Cheshin abandoned this approach after Bank Mizrahi and joined President Barak’s opinion that the Knesset is a constituent authority.

First realization: the Knesset responded to the Bergman case and its progeny by means of override

Two realizations struck me at that time. The first was that the override is not a foreign transplant into our legal system. In many respects, Israel preceded the Canadians in its use of override. Its source lies in the common law requirement of an “explicit statement” by the legislature as a condition for infringing human rights. In the absence of such an explicit statement, by which the legislature demonstrates awareness that it is authorizing the executive branch to infringe rights, the law would be interpreted to conform with human rights as far as possible.

This was the constitutional world of Israel prior to the constitutional revolution. In that world, Israel was a constitutional anomaly in comparative law: we remained faithful to the principle of parliamentary sovereignty, but the Supreme Court invalidated laws on the basis of section 4 of Basic Law: The Knesset. This anomaly was possible because, when the Court declared a law void or instructed that it not be applied, the legislature generally did not amend the offending law, but rather “overrode” the Court’s ruling.

The legislature would enact overriding laws – known as “ratification laws,” though not recognized as override – declaring that “for the removal of doubt,” a list of laws potentially contradicting section 4 of Basic Law: The Knesset would be valid “for all purposes and from the day of their enactment.” This was a technique of sweeping override (lists of overriding laws), retroactive (they applied from the date of the original enactment), by reference (the overriding law itself passed by a majority of 61 MKs, not the infringing laws), and sometimes even nullifying the effect of judgments for the litigants themselves.

Repeated petitions to the Supreme Court challenging these laws were dismissed, as during that period the Court cooperated with the legislature and contributed to the “trivialization” of judicial review. The legislature paid lip service to the Court’s demands regarding judicial review of primary legislation, and the Court recognized the validity of laws that largely circumvented its precedents. The last such petition was in the Blum case, after the enactment of the 1992 Basic Laws, in which Deputy President Barak endorsed this technique of override. It is no coincidence that President Landau – author of the Bergman ruling, by which the Court first instructed the government not to implement a law – later argued in the 1990s that Bergman had decided nothing, and could not serve as the foundation for a constitutional revolution.

Second realization: Justice Cheshin’s approach in Bank Mizrahi is not bizarre

The second realization was that Justice Cheshin’s minority view in Bank Mizrahi, which at first glance seemed “bizarre,” is in fact fascinating from theoretical, historical, descriptive, and comparative perspectives. I came to understand that Justice Cheshin did not abandon his approach after Bank Mizrahi, because he had a coherent theory explaining not only why the Basic Laws are not a constitution (a negative aspect) but also why the Court nonetheless possesses the power of judicial review absent a constitution (a positive aspect). He was able to join his colleagues in invalidating laws after Bank Mizrahi because the case that would have crystallized his disagreement with them never arose. For example, Justice Cheshin laid in Bank Mizrahi the theoretical foundation for the existence of an implied judicial override clause in all Basic Laws. In his view, had a case arisen in which the Knesset explicitly declared that “notwithstanding Basic Law: Human Dignity and Liberty, this law is valid,” such a law would have survived judicial review. According to this approach, the Knesset need not adopt an explicit override clause in Basic Law: Human Dignity and Liberty to have the authority to override it. But no such case ever came before the Court.

Theoretical framework – Justice Cheshin drew on the British “manner and form” theory, under which the legislature must remain sovereign when legislating for the public at large, but may impose upon itself procedural restrictions determining how a “law” is to be enacted. If the legislature does not comply with these self-imposed procedural restrictions, the Court may declare that the product is not a “law.” His difficulty was descriptive: his theory did not seem to describe the reality. The constitutional revolution’s main impact was on laws that failed to meet the substantive requirement of proportionality under Basic Law: Human Dignity and Liberty. A theory based on procedure alone cannot account for a revolution whose essence was the requirement that laws be substantively proportionate in their infringement of human rights.

But Cheshin had a simple answer. He translated every substantive limitation into a procedural one. A substantive requirement of proportionality merely presented the legislature with a procedural option: either comply with proportionality (substantive compliance) or override (procedural compliance). This was the only way he could give teeth to the proportionality requirement while remaining faithful to his view that the legislature is sovereign when legislating for others. To give effect to the limitation clause of Basic Law: Human Dignity and Liberty, Cheshin read into it the existence of an implied override clause.

Historical framework – Despite seeming strained at first, Cheshin’s approach had significant historical support in the Israeli context. It was the prevailing view in the literature from the enactment of the 1992 Basic Laws until the Bank Mizrahi ruling, as a way to explain why judicial review might be possible under Basic Law: Human Dignity and Liberty. During that period, political actors recognized judicial review only in the context of violation of the entrenchment clause in section 4 of Basic Law: The Knesset. They believed entrenchment was required for judicial review of primary legislation. There was great confusion regarding the status of Basic Law: Human Dignity and Liberty, which at the last minute lost its entrenchment in a second vote, when MK Charlie Biton changed his vote and the entrenchment failed by a single vote.

The prevailing view at the time was that a law infringing Basic Law: Human Dignity and Liberty must either comply with proportionality or explicitly declare otherwise (that is, override). Even President Barak in his writings considered interpreting Basic Law: Human Dignity and Liberty in this way. In fact, the Bergman ruling and its progeny gave the legislature an option: comply with the requirement of equal elections in section 4 of Basic Law: The Knesset, or enact a conflicting (overriding) law by a majority of MKs.

Descriptive power for current constitutional practice – I also found that constructing a constitutional narrative that ignores this history of override has led the Supreme Court, unwittingly, to strengthen Justice Cheshin’s theory over the years as a framework that best explains the development of Israel’s current constitution. In my view, Bank Mizrahi unanimously decided that the Supreme Court has the power of judicial review over primary legislation. But it left open the question of which theory best explains the existence of this power. There was no majority for either President Shamgar’s self-entrenchment theory or President Barak’s “two-hats” theory in that case. The disagreement in Bank Mizrahi has never since been reopened, and remains unresolved.

Surprisingly, Cheshin’s theory has explanatory power for much of the Court’s contemporary jurisprudence. One example among many: the Court struggles with whether the way to “infringe” section 4 of Basic Law: The Knesset is through a judicial limitation clause (proportionality) or by requiring a majority of MKs (override law). To the extent the Court sees proportionality and override as alternatives, that is precisely Cheshin’s view in Bank Mizrahi.

Comparative framework – Finally, I found that Cheshin’s approach to the Israeli constitution aligns with the Commonwealth Model of Constitutionalism. I argued that Israel is the “missing case” in comparative debates on this model, even though we were not part of the British Commonwealth. In this model, Canada, Britain, and New Zealand are the main examples.

Canada is known for its approach positioning override as an alternative to compliance with the proportionality requirements of the Charter. Its approach is thus similar to Justice Cheshin’s in Bank Mizrahi. I interpreted the mechanism of the UK’s 1998 Human Rights Act, empowering courts to declare “incompatibility” between a law and the Human Rights Act without authority to strike it down, as a mechanism in which the Court declares on behalf of the legislature that the legislature has “overridden” rights. Britain too thus provided the legislature with an option: comply with substantive rights protections or have the Court declare that it has overridden them. New Zealand developed in a direction similar to Britain, with the Taylor case recognizing the power of courts to declare incompatibility with the New Zealand Bill of Rights Act, though without the power to invalidate the law.

Justice Cheshin’s approach suggests that Israel, like the Commonwealth countries, adopted an intermediate model of judicial review between constitutional supremacy and parliamentary supremacy. In this model, the legislature must either comply with proportionality or override it, taking public responsibility for its actions. Public accountability is important because one of the main critiques of the Weimar Constitution was that it could be set aside through ordinary legislation, implicitly and away from public scrutiny.

This theoretical, historical, and comparative journey demonstrates that “override” is well-suited to the Israeli legal system. It is not foreign to it. If it is adopted explicitly, it cannot be declared an “unconstitutional constitutional amendment.”

Are we left powerless? Limiting the damage of an override clause

I do not support the adoption of an explicit override clause. It is one thing to acknowledge that there may be an implied power to override constitutional provisions, as Justice Cheshin argued. It is quite another to enshrine such a power explicitly in the Basic Laws. I fear that if an explicit override clause is adopted, the Knesset will resort to it frequently. Its use will not be regarded by the public as blameworthy, because the Basic Laws themselves do not originate in popular consent but in the support of a simple legislative majority.

Are we powerless in the face of the override clause’s destructive potential? In an article now forthcoming in the Grunis Book, I develop an approach identifying a set of inherent limitations on the power of override, independent of how the Knesset might design it. The starting point is to characterize override as a mechanism for “infringing” constitutional provisions through ordinary legislation, not as a mechanism for “amending” the constitution through the constituent power. If the content of an overriding law amounts to an amendment of the Basic Laws – because it is not a narrow, specific contradiction limited in time, place, scope of those affected, or circumstances of the infringement, but rather a redefinition of the constitutional norm – then it cannot be done by override and must follow the path of constitutional amendment. In such a case, the Court is authorized to declare the overriding law invalid.

From the nature of override as a mechanism for infringement through ordinary legislation, I derive the following inherent limitations on the legislature’s override power:

• Override must be specific – it cannot be sweeping, as was done in the past in Israel and Canada. A sweeping override of a list of laws against the constitution is tantamount to amending the Basic Law because of the breadth of the conflict.

• Override must be enacted as “law” in the substantive sense – in the words of President Beinisch in the National Census case: legislation infringing human rights must meet all the essential requirements of law as a binding legal norm, including publicity, accessibility, generality, clarity, and non-arbitrariness.

• Override must amount to an “explicit statement” – thus, a law enacted as temporary legislation with a sunset clause, which does not explicitly declare its contradiction to the Basic Law, is the antithesis of override. It removes responsibility from the legislature by claiming proportionality due to its temporariness. It cannot fulfill the requirements of override.

• Override cannot operate retroactively – in this, my view differs from that of the Court in the past. Granting retroactive effect to legislative infringements of the constitution contradicts the duty of the Knesset and the Court to respect the supremacy of the Basic Laws.

• Override cannot nullify the res judicata effect of a judgment for the parties – the legislature, aware of a law’s non-compliance with proportionality, must override the constitution in advance and thus take responsibility for its actions. If it waits for a Court ruling, it cannot override the judgment’s binding effect between the parties, contrary to the Court’s past approach. Emptying a judgment of its effect for the parties undermines judicial independence.

• There are limits on the number of times override may be renewed in the same matter – when override is not temporary or is renewed so often that it becomes permanent, it ceases to be override and becomes constitutional amendment.

• Override cannot be used against the fundamental principles of the Israeli constitution – overriding the fundamental principles certainly amounts to constitutional amendment, because of the severe conflict between the overriding law and the state’s core values. A law that seeks to contradict the fundamental principles of the constitution through override will not withstand constitutional scrutiny. My approach differs from that proposed by President Barak in the Mitral case for handling overriding laws that contradict the society’s fundamental principles.

Conclusion

Taking into account these inherent limitations on the power of override allows us to lower the temperature of the debate. The override clause is not a “magic formula” that permits gross and severe violations of human rights and the fundamental principles of Israeli democracy. Once its enthusiastic supporters understand this, their appetite for change may diminish.

The story of override in the Israeli context remains a fascinating one, because it demonstrates how we construct constitutional narratives that are not faithful to our own constitutional history. Without awareness of this history, political actors – including all three branches of government – may, unwittingly, strengthen or weaken one theory or another as the “best fit” explanation for the development of Israel’s constitution. This story is not yet finished.

Suggested citation:

(God)-Fearing for the State's Security: An Accommodated Approach for the Draft of Ultra-Orthodox Jews in Israel and A Fresh Look at the Right to Equality, Hebrew U.L. Rev. (forthcoming) [Hebrew].