A Lecture Presented to the Hebrew University Board of Governors by JPPI Board Member Miriam Naor on the Occasion of Receiving an Honorary Doctorate.
The tension between the judiciary branch on the one hand and the legislative branch and the executive branch on the other hand exists in every democratic country around the globe. This tension is natural. It derives from the sense that the judiciary branch ‘disturbs’ the other branches from acting in accordance with policy which they have decided upon.
Criticism of the Courts by the other branches of government is legitimate. Judges must learn to live in peace with such criticism. They must consider it seriously and thoughtfully. No one is immune from making mistakes, and constructive criticism by politicians, academics and the public, encourages judges to reflect on and consider their decisions. A judge is not afraid of criticism. A judge reflects and decides in accordance with her or his conscience and the law, as he or she interprets it.
And yet, in the election campaign preceding the April 9th general elections, red lines between the judicial, legislative and executive branches, were crossed. Various contenders competed among themselves for the dubious title of the person whose proposals would most harm the judiciary branch. The Supreme Court was described as the ‘enemy of the State’. Different electoral candidates attempted to create an impression that if only we were to free ourselves from the ‘weight’ of the court, all Israel’s problems will be solved. Remove the intervention of the supreme court from parliaments’ laws and government decisions – and we will live in an ideal country. The criticism turned virulent, uninhibited, and disrespectful. This was not a case of the usual tension. It was a huge escalation.
As part of the competition for who would harm ‘the enemy of the State’ more, some different ideas were raised: it was suggested to enact an override clause. It was also suggested to limit the grounds for interference in governmental branches decisions by the court; to cancel the ‘extreme lack of likelihood’ ground for interference with governmental decisions, and to cancel ‘lack of proportionality’. It was also suggested to reinstate the ‘right to stand’ as a condition to appeal to the HCJ, and to change the composition of the committee responsible for electing judges. Two of the parties whose platforms included these agendas did not pass the threshold. Some members in the central ruling party also made such proposals, though it was not the official position of the party. Lacking a platform, it is difficult to ascertain what the official position of the party on the matter is.
In Israel, for reasons which I will not elaborate here, the executive branch has almost complete control of the legislative branch. In rare cases, the Supreme Court had to make decisions that protect the legislative branch from a takeover by the executive, which would ultimately prevent members of parliament from understanding the laws they were asked to pass, utilizing rapid legislative processes. Due to the almost complete control of the executive branch, the only branch that can limit the executive along with the legislative branch in the Israel, is the Supreme Court.
Checks and balances between the three branches of government are imperative in every democracy. And yet, the implications of part of the proposals, specifically the override clause about which we will elaborate, are that the government, which holds almost complete control of the parliament, de facto becomes the sole branch. The parliament is already under government control, and the proposal is to override the judiciary.
Critiques of the Courts make two main claims: the first is that the Supreme Court took authority that had not been granted by the legislator, to overturn parliamentary legislation; the second is that the parliament is elected by the people, while the judiciary is not publicly elected. How come, so they argue, that unelected judges disturb the executive in fulfilling its’ role to rule, and from time to time even nullify laws passed by the elected parliament?
The claim that the Court took authority not granted by law is baseless. It was the parliament that granted courts that very authority to overturn laws that do not uphold the rights legislated in the Basic Law: Human Liberty and Dignity of 1992 and the Basic Law: Freedom of Occupation of 1994.
In Israel Parliament possesses not only legislative but also constitutive authority. For a variety of reasons, the Constitutive Assembly elected in 1949, soon after the founding of the state of Israel, failed to adopt a constitution. Rather, a decision was taken, to gradually constitute Basic Laws which would eventually, upon completion, be comprised into a complete Constitution.
Indeed, as the critics claim, there is no outright mention of the Courts’ authority to overturn legislation that contradicts Basic Laws. Though it is not said explicitly, this is the only possible interpretation of the aforementioned Basic Laws. This was explained in detail in the famous ‘Mizrachi Bank’ judgement by the Supreme Court Justices, with President Shamgar head of the panel. As Deputy President Rubinstein said many years later, there was no need to write hundreds of pages in order to clarify that the Basic Laws established judicial review of legislation. We learned from ancient Romans that where there is law, there is remedy – Ubi ius ibi remedium.
The Basic Laws stipulate that each of the branches of government is obligated to respect the rights they include. The legislative branch is one of the governmental branches. Who will decide that the legislature has disregarded rights but the Court? Furthermore, the Basic Law clarifies that it does not harm laws that existed prior to its’ enactment. It does not have retroactive results. That means that a new law can be overturned if it does not reflect the Basic Law.
It has also been claimed at times that members of parliament did not comprehend that they were granting the judiciary the authority to overturn laws. This claim disrespects the parliament. Regardless, MK Lynn who chaired the Knesset Constitution and Law Committee during the enacting of these Basic Laws, along with other MK’s, approved that they understood very well what they had done.
To summarize, the Court did not take the authority to annul laws. It was the Knesset, wearing its constitutive hat, which granted that power to the courts. The constitution is superior even to parliament, and by annulling certain laws the Court did what the constitution determined it should have done. Let me add: the Supreme Court annulled only 18 laws or sections of laws during the twenty-five years that have passed since the enactment of the Basic Laws.
In addition to the historic components of the argument, I’d like to add the following: constitutional review exists in most democratic countries. Abandoning it means the removal of Israel from the family of democratic nations, taking it back many years.
I’ll say right now: my view is that recent focus on the override clause is testament to the general agreement that there is no room to revoke judicial review on laws, as without the judicial review there is no need for the override clause.
As I see it, that means that the so called ‘constitutional revolution’ is no longer revocable.
Now, let’s turn to the second claim of the critics, the claim that the people elected the parliament, while judges were selected by an appointment committee. It follows from this claim that judicial review, especially of laws enacted by parliament, is anti-democratic.
This argument does not show a deep understanding of democracy.
Regarding the claim of the power of the majority, the answers are complex and I will propose just one. The constitution is supreme and stands above the power of a simple parliamentary majority to change it. It is not the judge who is superior to the legislator, rather the constitution. Therefore, a regular law that contradicts a basic law should be annulled.
I mentioned that several suggestions were put forward with intent to harm the power of the supreme court. Meanwhile, the parliament decided to hold new elections just a month after beginning its term, and we do not know what the Knesset that will be elected on September 17th will decide. We do not know what plans will be presented as elections approach, and I am not sure if they are sufficiently crystallized by those suggesting them. There are those who claim that the PM wishes to advance personalized legislation, such as in matters of immunity that will assist in his legal proceedings. I do not know if this is indeed the plan, despite the expressed certainty of those making the claim. During the elections campaign to the 21st Knesset, the PM denied any intent to utilize the law to advance personal matters. I am not sure that this was the intention. I am not sure what the 22nd Knesset will decide. I only know that personal legislation is always and everywhere considered improper.
Now for the much talked about override clause: theoretically, there can be multiple ways to enact an override clause. Such a clause in essence enables the legislator to enact legislation which contradicts a constitutional document, such as the basic Laws in Israel or the Canadian Constitution, without changing the constitutional document and without being struck down by the court. Override of court decisions can also be achieved by amending laws so they cannot be reviewed by the judiciary or by re-enacting legislation that was struck down by the court due to disproportionate harm to constitutional rights. In Israel, as of now, the override clause which is recently in the news is intended to enable the legislator to override court decisions.
There are different components in an override clause. It is possible to speak of the majority required for the re-enactment of a law that contradicts human rights. It is possible to speak of the length of time that the legislation contradicting human rights will stand; about whether that time period can be extended; about whether the override clause will be valid with regards to all human rights, or only part of human rights, etc.
In all the legislative proposals in Israel so far, including those most recently put forward by former ministers Bennet and Shaked, the override clause suggested will be part of the Basic Law: Legislation, which explicitly authorises the Supreme Court to overturn laws enacted by parliament, if they contradict human rights. Recently, there is discussion of a narrow override clause which is not part of the Basic Law: Legislation but rather a clause that will be included in specific legislation, such as in the case of the infiltration prevention law.
For the sake of historical accuracy, it is worthwhile to note that there was a past proposal which did not advance, to which the former President Aharon Barak, agreed. It was based on recommendations of a public committee headed by Adv. Yaakov Ne’eman in 2004, several years before his appointment as Minister of Justice.
That proposal required a majority of 70 out of 120 MK’s in order to legislate a 5-year override clause. President Barak agreed to this proposal as a compromise, and as part of the Basic Law: Legislation, which would explicitly grant the courts authority to overrule laws. Nothing came of this proposal and meanwhile, Ne’eman was appointed Minister of Justice. In that capacity, he proposed to legislate an override clause as part of the Basic Law: Legislation, which would enable 65 MK’s to legislate an override law for 5 years, and which can be renewed over and over again.
In the recent proposal from 2017 the requirement was for 61 MK’s. There are additional differences between the proposals which we will not elaborate on here.
We do not know what the final proposal would look like, if at all, and it is unlikely that the power dynamics in the 22nd Knesset will enable the enactment of the Basic Law: Legislation like the Ne’eman Committee proposal, which President Barak agreed to as a compromise. I would object to any other proposals.
Supporters of the override clause claim that they wish to adopt ‘the Canadian model’. Indeed, the Canadian Constitution includes such a clause, necessary because of a political compromise which enabled the adoption of the Constitution. However, from its’ enactment in 1982 and to this day, it has never been activated federally. It has been the subject of much criticism in Canada itself. To the best of my knowledge, the only other country in which an override clause exists is Finland, and in other liberal democracies such a clause does not exist.
Legislation of the override clause means simply that the Knesset will be able to re-enact laws which were deemed unconstitutional and thus struck down by the court. It is like saying without saying that the Basic Laws are overturned. Such a law would afford the government unlimited power to violate the constitutional rights of each and every individual. It is not about the courts’ prestige or powers, but rather about the fate of the citizens. And it is deeply troubling. I implore each of you to imagine turning to the HCJ for a remedy, only to discover it is out of the courts’ power as the Knesset has overturned its decision.
The beginning point of this entire discussion is that Israel is a Jewish and democratic state. This expression is repeated over and over in Israeli legislation, throughout the years. Do we want to live in a state that is undemocratic? I believe all would respond negatively. Thus, we should not accept an override clause, wide or narrow, that would enable the government to violate rights. Not only the rights of the minority, but the rights of each and every one of us.
Will Israel remain a democracy? Though I have some concerns, I am optimistic. I believe in Israeli democracy. In the past, there were parts of the coalition that did not allow such override laws to pass. I hope that the responsibility for the fate and identity of the country will overcome narrow personal and coalition considerations. I want to believe that there will be a sufficient number of MK’s who will say: Stop! Not on our watch. We were and will remain a Jewish and democratic state. This will require a comprehensive campaign from academia, the Israel Democracy Institute, former justices, members of the Bar and all to whom the future of the state is dear. Members of Knesset must understand that each and every one of them is personally responsible for the future identity of the state. I hope and believe that democracy will prevail.
As for the judges, I did not share with you my thoughts about pending cases. This is something that I never do. But I do want to appeal to my colleagues on the bench: do not consider any resignation. Make decisions based on your beliefs as you always have done, regardless of outside voices and noises. As President of the Supreme Court I experienced many difficult days and stormy nights. It never occurred to me to leave. Anyone who cherishes democracy must not vacate his place. It is unclear who will step into the vacated position. I am aware of Prof. Barak’s words regarding possible resignation. I am certain that what he meant referred to extreme situations, which are unlikely to happen in Israel. Even on difficult days, remember that you have pledged your allegiance to the state of Israel and its’ laws.
In the last few years, we have witnessed a wave of violations of human rights and democratic infrastructure in some countries. I am concerned, but I choose to believe that the State of Israel will continue to be a beacon of justice and law, of human dignity and freedom.