The Override Clause- Israel’s Quest For Its Kesavananda

The city of Tel Aviv is gathered by thousands of people protesting on the streets for what they call ‘standing up for democracy’. Protests have been going on in the national capital for nine weeks, against the action taken by Prime Minister Benjamin Netanyahu’s Government. The proposed reforms aim to overhaul the legal system. The most controversial part of these ambitious reforms is the ‘Override clause’ which the Government is pushing vociferously.

The reforms essentially bequeath the elected Government with considerable influence over the appointment of Judges and limit the ability of the Supreme Court to rule against the executive or strike down legislation trampling citizen rights (i.e. the power of Judicial Review), which coupled with other measures tantamount to accumulation of legislative and judicial powers in the hands of the Executive Government.^[1] Justice minister Yariv Levin, who is the architect of the overhaul, said that the Government is pushing the legislation at ‘breakneck speed’ and is committed to getting it passed before the end of the ongoing session of the Knesset.^[2]

This procedure would imply that the Knesset will have the authority to override any decision of the Supreme Court by a simple vote of 61 members out of the total strength of 120 members in the Knesset. The bill is being opposed by a plethora of people including the opposition and the legal academia in Israel, as being violative of the Basic Laws, and jeopardising independence of the Judiciary thereby trampling the rights of the citizens.^[3]

This bill essentially seeks to overtake the guarantees under the ‘Basic Law: Human Dignity and Liberty’, which is the essential grundnorm legislation passed by the Israeli Knesset in the year 1992. These "Basic Laws" serve as Israel's de facto Constitution. The Basic Law: Human Dignity and Liberty states that "there shall be no violation of the life, body or dignity of any person as such" and guarantees various fundamental human rights, including freedom of expression, freedom of religion, and the right to privacy.^[4]

Importantly, the Basic Law: Human Dignity and Liberty also establishes judicial review as a fundamental principle of the Israeli legal system.^[5] The law empowers the Supreme Court of Israel to strike down any legislation that violates the basic rights and freedoms protected by the law. The establishment of judicial review in the Basic Law: Human Dignity and Liberty represented a significant shift in the Israeli legal system, which previously did not have a strong tradition of Judicial Review.^[6]

The ruling dispensation justifies the reforms as a ‘balancing act’ that would strike a long-awaited balance in the system which would reinforce the principle of separation of power, which according to them has been usurped by the Judiciary.

It is interesting to observe that the argument of ‘judicial overreach’ is always justified on the edifice of parliamentary sovereignty. However, this argument tends to demean the indispensability of protection of values and norms of the constitution, to the doctrine of separation of power. These values are essential to the preservation of fundamental tenets of the institutions that preserve democracy thereby protecting ‘constitutional morality’. Therefore, protection of these fundamental norms of the constitution inevitably reinforces democracy. The principle of ‘separation of power’ is one such vulnerable norm that needs to be protected.

This was also highlighted by the Supreme Court of Israel in the landmark case of "Bank Hamizrahi," also known as the "Bank Mizrahi-Tefahot case," (1982) wherein it held that the principle of separation of powers is a fundamental tenet of the Israeli legal system and independence of Judiciary is paramount to uphold the rule of law, for protecting the individual rights of the people.^[7] Since this constitutional revolution, the Court has used its power of judicial review over primary legislation to strike down around a dozen statutes for disproportionately infringing constitutional rights provided for in the Basic Laws.^[8]

In another case, “Ultra-Orthodox schools case" (Merom Yerushalayim v. Ministry of Education, 2011), the Supreme Court of Israel struck down a problematic overriding clause inserted. The Court ruled that the Clause violated the right to equality conferred on the people by Israel’s Basic Laws.^[9] The Knesset however used the popular override clause and proceeded against the order of the Supreme Court. Interestingly enough, the Government is extending the same override clause to the Basic Laws this time. And hence, there is an uproar amongst the legal academia in Israel and around the world.

Ran Hirschl in his work, ‘Israel’s Constitutional revolution’^[10] argues that the fundamental aim of the rights revolution in Israel, which eventually led to the inception of the Basic Laws in the year 1992, was to further the broader aim of expanding and promoting civil liberties and individual rights. This also meant a shift from a more collective society to a more open and liberal society. Israeli society has been a less open society because of the conditions it had to face since its inception. Naturally, this change created rifts between ideologies advocating conservative legal system as opposed to the progressive ones, the result of such rifts is visible on the streets of Israel today.

The Kesavananda Bharti principle-

In many ways, the struggle of present-day Israeli Constitutionalism emulates the pre-Kesavananda^[11] tussle between the Indian government and the judiciary. The Indira Gandhi government brought the 42^nd Amendment Act of 1976 essentially curtailing the power of Judicial Review of the courts to the extent of protecting statutes violating Fundamental Rights of the citizens. The Parliament’s gluttonous want for power was manifested in the form of Article 368 which according to the Government bestowed it with illimitable power to amend the Constitution. The vicissitudes of the executive interference were such that the independence of Judiciary was at stake accompanying with the democratic structure of India. With the grace of great judges who donned the benches and activism shown by revolutionary lawyers the court conceived the ‘Basic structure doctrine’ which proved to be a monumental instrument for the Judiciary to maintain its independence and protect the civil liberties guaranteed to the people of India. At the end, the Court upheld the principle of Constitutional supremacy thereby upholding its commitment to the primacy of Constitutional principles over the notions of popular morality. The journey of constitutional reform was not easy in India. In the quest for sustaining our ‘tryst with destiny’ the Judiciary was brave enough to stand on the side of Constitutional will rather than bowing to majoritarian whims.

It is a very crucial juncture in Israel’s Constitutional history. In this clash between two opposing ideologies that seek to attain different agendas, Israeli Judiciary can take inspiration from Kesavananda Bharti, to establish a norm such as that of a ‘basic structure’ to protect the basic tenets of Israel’s democracy. This step would be pertinent in harmonizing both ends of the spectrum and at the same time ensuring the liberty of the individual guaranteed by an independent judiciary, and at the same time enabling Parliamentary autonomy to prevail.

The steps that Israel takes today will determine whether it continues to proclaim its status as a democracy or rifts apart to become something else. Judiciary is often the beacon of light in the dark myriad of authoritarianism. Time will tell whether this beacon of light is preserved or is lost in the darkness that wants to subsume it.

Views are personal.