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.
