NO to Override Clause, YES to Repeal of Validity of Laws Article in Basic Law: Human Dignity and Liberty

>> Read the full Policy Paper

In this policy paper, we will show how the emerging coalition’s intention to enable the Knesset to override Supreme Court rulings represents a serious violation of human and civil rights. We will then propose an alternative for expanding the protection of human rights based on a repeal of the Validity of Laws Article in Basic Law: Human Dignity and Liberty.

The override clause in the format currently being discussed in the coalition negotiations will allow the Knesset, by an as yet unknown majority, to overturn any Supreme Court ruling that invalidates a law and to enact laws that will be immune from any future judicial review. Such a clause is expected to affect the existing protection of all the rights and instruments of government enshrined in Basic Laws, impair the protection of human rights in Israel and in the Occupied Territories, and impinge on the Supreme Court’s ability to protect human rights. In other words, it will affect the human rights of all of us.

At present, when the Supreme Court overturns a law, the Knesset is required to amend the pertinent Basic Law in order to legitimize the violation of human rights. The proposed override clause will obviate the need for any such amendment, as it will allow the Knesset to reverse, either in advance or retroactively, any ruling stating that a law violates a constitutional right and does not meet constitutional requirements.

Indeed, an override clause already exists in Israel’s law books, in Basic Law: Freedom of Occupation, and its characteristics illustrate how dangerous is the one being proposed now. The existing clause applies to a single right, which despite its importance is not at the core of human rights. Its enactment came about due to the need to find a concrete solution to a specific problem (restricting imports of non-kosher meat), and it has never been used other than in this case. The proposed clause, on the other hand, would apply to all constitutional rights, including the rights to equality, dignity, elect and be elected, liberty, freedom of speech, freedom of conscience, freedom of religion and from religion, privacy, property, exit and enter Israel – in fact to all the rights currently enjoying constitutional protection, not to mention that it would enable personalized legislation that would seriously damage the rule of law and the battle against corruption.

Although a study has found that compared to other democratic countries Israel’s Supreme Court hardly ever invalidates laws, the existence of the very rare option to overturn a law has had a restraining effect on the legislative process in the Knesset and has provided legal advisors of Knesset committees and Attorney General’s officers with leverage to tone down extreme and predatory bills. In other words, the meaning of the proposed override clause is not only that the Supreme Court will not be able to annul laws that violate human and civil rights, but also that more such dangerous laws are expected to be enacted.

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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.