Too Early to Declare the End of the Override Clause
Following the results of the September 2019 elections, pundits swiftly declared that the significance was, among other things, that there would be no immunity and no “Override Clause.” But can the clause really be declared dead? The answer is no. Various versions or formats may still appear, all of them a threat to Israeli democracy, rule of law, and human rights. The significance of the “Override Clause” is that the Knesset would be able to decide that a certain matter will not be subject to review by the High Court of Justice. The Knesset would be able to make this judgement retroactively regarding new legislation of a law that the court determines illegal, or to preempt the court’s involvement in the first place by determining that a certain issue is excluded from judicial review from the outset.
In a democracy, specifically in Israel, the High Court plays a unique role. Because the Knesset is controlled by the coalition majority which forms the government, there is no actual separation of powers between the legislative and judicial branches in the traditional sense. As such, the High Court is the central body that serves as the check and balance between the branches.
Moreover, Israel does not have a constitution that protects human rights, and more specifically minority rights. As such, the High Court is the only protection against the tyranny of the majority. Its role is to review the actions of the government and the Knesset’s activities, and ensure that the government does not impinge on human rights and the rights of any minorities, regardless of nationality, class, economic status, religion, gender, LBGTQ, etc.
The election results may signal that a broad “Override Clause,” which would give the Knesset almost unlimited authority to re-legislate a law disqualified by the High Court as illegal by a majority of 61 parliament members, would no longer be on the agenda. But one must not ignore the potential that the need to form a broad – and diverse – government coalition may lead to the adoption of narrow, and no less problematic, version of the “Override Clause.”
One possible option is that a broad, seemingly more balanced, “Override Clause” be proposed, requiring the vote of a majority of 80-90 Knesset members, including representatives from the opposition. This scenario would critically impact Israel’s democracy. First, the threat of negatively impacting minorities and human rights still exists in this scenario. Beyond that, garnering the necessary majority is still possible in regards to many controversial social issues, particularly when it comes to protecting unpopular minorities or those with no political power, like Arabs, refugees, or underprivileged sectors, or when it comes to controversial issues such as LGBTQ rights, streams of Reform Judaism, the Arab minority’s cultural and national rights, etc.
Another potential option that may be proposed is an “Override Clause” for a specific law. This could may considered a solution by Knesset members from various parties when engaging in coalition talks. Inclusion of such a clause into specific laws, for example the “Draft Law” or the “Prevention of Infiltration Law” (which deals with refugees), may be considered a pill easier to swallow. Make no mistake, even such a specific “Override Clause” is problematic, as the same principles of protecting human rights and minorities, as well as rule of law, would be infringed upon. Furthermore, a narrow “Override Clause” would set precedent (both legally and psychologically), paving the way for override clauses on various issues, which would be decided upon occasionally based on political needs at any given moment.
In other words - if it’s legitimate to set restrictions on a constitutional review of one issue, why would this not apply to any other issue?
It is important to remember that beyond the infringement on human rights, the “Override Clause,” in its various forms, constitutes a significant step down the slippery slope of our democratic system: if seeking to legislate laws that erode human rights and the rule of law, the checks in place – the court, State Comptroller’s Office, law enforcement systems, media, and civil society organizations – must be neutralized.
The “Override Clause” in its various forms is the means to bypass the High Court. It is a significant and dangerous step towards subverting our democratic system, and therefore it should not be allowed in any form.