Judicial Review, Override Clause, and Limitations Clause

The Neeman Commission recommended a ‘centralized’ model of judicial review in which a lone body would have the power to strike down laws as unconstitutional. (This as opposed to a ‘distributed’ model, wherein any court could exercise judicial review). The Neeman Commission recommended that the Supreme Court serve as the body so empowered.

Professor Gideon Sapir (Bar-Ilan University) disagreed with the Ne’eman Commission’s recommendation, pointing out that most states using such a centralized model create a specialized Constitutional Court outside the regular judiciary system for this purpose.

Professor Sapir stated that of all the usual justifications for using a centralized model, only the recognition of constitutional questions as political-ideological matters, which should duly be decided by a body constructed for rendering value judgments, was relevant to the Israeli case. It is for this precise reason, argued Professor Sapir, that a special Constitutional Court is necessary.

Professor Sapir argued that that the interpretation of the Constitution will inevitably be influenced by the identity of the presiding judges. The selection of these judges is therefore an ideological question, which must be decided politically. Removing this decision from the hands of the Knesset reduces the capacity of every citizen to participate in the process of determining issues central to their fate, as individuals and as a nation.

Professor Asher Maoz predicted that greater political influence in the judicial nomination process would result in smaller minority representation.

Professor Maoz argued that decentralized judicial review leads to uncertainty regarding the law. Two lower courts in different cities, for example, may rule differently regarding the same law, with the untenable result that the law will simultaneously be binding in one city, while being unconstitutional in the other.

Professor Shimon Shetreet stated that uncertainty due to decentralization is not a problem, arguing that it simply allows the issue to ripen, and helps create a marketplace of ideas. Ron Gazit added that ultimately, a lower court decision that strikes down legislation - whether primary or secondary legislation - will likely be appealed to the Supreme Court, which will settle the matter.

Professor Asher Maoz favored centralization, stating that while lower court judges in some countries have exercised restraint in taking the momentous step of invalidating legislation, this has not been the case in Israel. A case which puts into question the constitutionality of legislation should more properly be addressed by the Supreme Court.

A centralized system allows only one court to practice judicial review, thereby preventing the potential for a lowly traffic court, for example, to overturn Knesset legislation. Professor Sapir did not believe that this would be a widespread problem, and others felt that so long as the lower court was empowered only to rule regarding the case before it, this was acceptable.

It was suggested that a centralized system would improve efficiency, with all constitutional questions handled by one specialized court. However, Professor Sapir cited the experience of countries using this system, which often suffer from the inefficiency of suspending cases in one court, waiting for another court to hear the case and issue instructions, and only then resuming the case. Ron Gazit anticipated abuse of this system by attorneys looking to cause unnecessary delays.

Professor Zilbershatz stated that the commission’s recommendation of centralized Judicial review came after deliberation not only of the theoretical arguments, but after careful consideration of the practical political and public acceptability of centralization versus decentralization. The commission came to its final recommendation based largely upon the feeling that the public is not ready to accept decisions of lower courts canceling legislation.

MK Saar asked if the proposed model, requiring challenges to the constitutionality of a law to be referred by lower courts to the Supreme Court, was not overly complicated.

MK Ravitz responded that currently most challenges to laws are taken directly to the High Court of Justice, regardless of their merit. The proposed system would enable the lower courts to act as filters for such challenges. Eyal Sandberg pointed out that direct challenges in the High Court of Justice would still be feasible.

A balance would be created, said MK Eitan , between the lower courts, who would refer the challenges, and the Supreme Court, which would carry out the review. The lower court would not be able to dominate the decision by simply refusing to refer a case with possible merit, added MK Eitan, as its decision would be subject to appeal.

In order to limit uncertainty regarding the validity of legislation, MK Saar proposed defining a set amount of time during which challenges to the constitutionality of a law could be raised in lower courts. After this time period, the law could not be challenged, except by directly petitioning the High Court of Justice.

Dr. Reichmann responded that it is actually the lower courts which serve, in practice, to limit the activism of the Supreme Court, and hence to limit the degree of uncertainty regarding validity of laws, and the degree to which laws are vulnerable to ideological decisions of the Supreme Court. Dr. Reichmann proposed that no direct challenges to the High Court of Justice be allowed, and that judicial review be exercised only in cases referred to the Supreme Court by the lower courts.

Deputy Attorney-General Yehoshua Shofman stated that when facing criminal charges, a person is entitled to a determination regarding the constitutionality of the law in question. He should not be forced to face the charges in a forum that disregards the possibility that the law is unconstitutional, while attempting to challenge the law in a different forum.

Deputy Attorney-General Shofman added that enabling the court to exercise judicial review using only theoretical tools and arguments, rather than having the court examine the law in the context of an actual case, is a recipe for increasing tension between the Legislature and the court.

The committee decided to adopt three versions on this matter: the Neeman proposal, that of MK Saar, and that of Dr. Reichmann.

Should the Constitution allow, as proposed, a quorum of nine judges of the Supreme Court to exercise judicial review, said Prof. Ron Shapira of Tel Aviv University, the Constitution must also delineate the judicial selection process and the permanent number of Supreme Court judges.

Dr. Reichmann felt that the Ne'eman proposal would give the court unduly wide latitude in deciding on "any relief." Specifically, he warned that the court could infuse its own ideas into the law.

Deputy Attorney-General Shofman responded that this practice of "reading in" enables the court to resolve potential contradictions between the Constitution and ordinary legislation, thereby allowing the court to uphold the legislation. "Any relief" could also include the court practice of "reading out," i.e. broadly upholding legislation while determining that a specific portion must be ignored or excised. Finally, the court would have at its disposal the option of delaying the end of the validity of a law, even if found unconstitutional, where warranted by circumstances. (Should the court so decide, it could also provide relief as necessary to individuals unjustly affected by the continuing validity of the law during this time period.)

MK Eitan strongly objected to the possibility of "reading in," as this would essentially constitute legislation, which should be the exclusive realm of the Legislature. Deputy Attorney-General Shofman stated that these practices minimized the voiding of acts of the Legislature, and therefore should be seen as minimizing the limits on the supremacy of the Legislature. However, MK Eitan preferred that the Judiciary void unconstitutional legislation, and refrain from insinuating itself into the legislative process. MK Eitan did not object to the possibility of the court delaying its voiding of an unconstitutional law.

MK Tamir proposed including an instruction to the effect that while judicial interpretation is allowed, it must remain faithful and subservient to the language of the law.

The court has indicated, reported Dr. Sommer, that it will rarely use the mechanism of delayed voiding. Dr. Sommer proposed that this mechanism be instituted as the default option, to be utilized so long as there is no urgent need for immediate voiding. This allows the Knesset to consider its options and enact a repaired version of the legislation, thereby decreasing tension between the Legislator and Judiciary.

Eyal Zandberg replied that legislation which is fatally flawed, for either procedural or substantive reasons, should naturally be invalid. An individual should not be bound, even temporarily, and certainly in matters of criminal law or civil rights, by legislation which has been determined to be unconstitutional. This should be the default, with the court given discretion to delay invalidation where special circumstances warrant it.

Dr. Sommer stated that his proposal would actually hasten the process and minimize the period during which an unconstitutional law would remain valid, as the court, or the Constitution itself, would define the time period during which the Knesset could act before the invalidation would become effective.

MK Eitan asked why the court should be allowed to exercise discretion in deciding to effectively - if temporarily - uphold a law which has been determined to be unconstitutional, pointing out that the Knesset itself could not do so except by use of an override clause. Deputy Attorney-General Shofman stated that the court’s delayed invalidation was analogous to the Knesset’s exercise of an override clause, both methods allowing for practical considerations to temporarily override principled ones.

The Committee decided to create versions of the proposal stating that, either as the default option or only under special circumstances, the court could order invalidation delayed, for a time period determined at its discretion.

MK Eitan proposed that the Constitution should define the court’s criteria in exercising discretion should as affording the Knesset time to remedy or resolve the situation as it sees fit, while not allowing the law in question to cause harm. While Eyal Sandberg felt this was obvious and need not be included, MK Eitan did not want to leave this open to future interpretation.

MK Ravitz stated he would not object to lower-court judicial review based on contradictions between ordinary legislation and Constitutional legislation, but would object to such judicial review based on ideological decisions. MK Oron questioned whether this distinction could always be made.

The Neeman Commission proposed that the Constitution allow the Knesset to override, with a special majority of 70 MKs, a Supreme Court decision voiding legislation.

Professor Tzvi Kahana preferred the term ‘exception clause’, stating that ‘override’ (or, in the original Hebrew, hitgabrut, more literally translated as "overcoming)" has a positive connotation, whereas ‘exception’ is neutral. Professor Kahana pointed out that, contrary to popular belief, the term ‘override’ appears nowhere in the Canadian Constitution.

Dr. Yitzchak Klein feared that the requirement of a special majority of 70 MKs for passing override clauses would result in instances of the court enacting judicial legislation which the Knesset, in practice, would not be able to override, despite strong public support.

Amir Avramovitz proposed that the required majority for passing an override clause be identical to that required for passing an amendment.

The Committee decided to propose that override clauses require an absolute majority of 61 MKs, with an alternative proposal requiring a special majority of 70 MKs.

The committee decided that despite the fact that override clauses would refer to existing (but voided) legislation, passage of an override clause would necessitate three readings. This was viewed as beneficial, in that it would facilitate public debate.

According to the Neeman proposal, the override mechanism could be utilized for ten years after the passage of the Constitution. An override would remain in effect for up to five years, (meaning that the latest possible override clause, passed exactly ten years after the passage of the Constitution, would expire fifteen years after the passage of the Constitution).

The Neeman Commission’s recommendation was based on lessons learned from the Basic Law: Freedom of Occupation, which indicated to the Commission that a gradual move toward supremacy of the Constitution of ordinary legislation is preferable.

Additionally, Professor Neeman stated that a delicate balance is struck in this proposal between the role of the Supreme Court in exercising judicial review, and the role of the Knesset as the supreme legislator. Ron Gazit added that this is particularly so given the requirement that the Supreme Court exercise judicial review only with a full quorum.

Professor Zilbershatz felt that in order for the Constitution to be acceptable, politically, the Knesset might have to be empowered with the ability to legislate override clauses with no expiration date. She was hopeful that during an interim period of four years, solutions might be found that were acceptable to all sides of many conflicts.

The Committee decided to adopt a proposal giving an expiration period of four years for override clauses, and an alternate proposal giving no such expiration period. Alternate proposals also adopted by the committee would either allow or bar the Knesset from renewing the override clause for further periods.

In either version, initial legislation of override clauses would only be allowed within ten years of the passage of the Constitution.

Dr. Somer put forward what he himself termed an 'outrageous' proposal: Place no cumulative time limit on the effectiveness of override clauses, and allow the Knesset, by absolute majority vote of 61 MKS, (and not by special majority vote of 70 MKs), to utilize an override clause no more than five times, effective until three months beyond the end of the Knesset’s term. Each new Knesset could decide to renew an override clause; laws could be perpetually renewed by each successive Knesset, but the Knesset would thereby "waste" one of its five overrides.

MK Eitan questioned whether the Knesset, which currently can override any court decision by using a number of mechanisms, should it so choose, would agree to limit itself to five overrides. He also stressed the practical difference between recruiting 61 MKs, and recruiting 70, which he felt was more appropriate.

Dr. Reichman predicted that the Knesset would too readily decide to amend the constitution to allow a greater number of overrides.

The Committee discussed the question of whether an override clause could be used preemptively, or only in response to a Supreme Court decision voiding a law.

In addition to the possibilities of the Knesset preemptively or responsively overriding the court, Shimon Shetreet and Tzvi Kahana pointed out a third scenario, that of a new and constitutionally unforeseen legal question arising, which the Knesset might act upon, perhaps using an override clause, rather than waiting for a court decision to shape this new area of law.

MK Eitan disagreed with this possibility, stressing that the task of the Knesset is to legislate, while interpretation, including Constitutional interpretation, is in the sole purview of the court. Professor Yaffa zilbershatz added that a court ruling voiding a law as unconstitutional would set a certain tone in the public discourse, favorably influencing any Knesset action which might thereafter be taken.

The Committee decided that the mechanism would enable overriding only existing court decisions.

Amir Avramovitz proposed that certain areas of the Constitution be designated as invulnerable to override clauses.

Professor Kahana felt that override clauses should be effective regarding any part of the Constitution, with the exception of the amendment process. Sigal Kogut suggested that override clauses also should be ineffective in supporting legislation making changes to the type or structure of government, or democratic process, specified in the Constitution.

The Committee decided that override clauses would not be effective in changing the Constitution’s section on government.

It was noted that during the Adjustment Period a special majority of 70 MKs would not be necessary for passage of an override clause, and further noted that the Adjustment Period would extend until the Knesset decides otherwise - meaning, in practice, that the Knesset could keep absolute-majority override power for itself in perpetuity.

Professor Kahana objected to the mechanism of a specific override clause, stating that any change or exception to the Constitution should be undertaken using the regular amendment process, even if the exception regards a very specific and mundane matter, such as sale of non-kosher meat. He cited examples of such mundane matters in the US (e.g. age of the President and Canadian (funding of French-speaking schools) constitutions, and stated that any matter that concerned the public’s elected representatives enough to spur them to action should not be viewed as too mundane to warrant inclusion in the constitutional process.

Professor Segal stated that an override clause, particularly one not requiring a special majority (but only an absolute majority, which a coalition government should be able to muster) undermines the very idea of the supremacy of the Constitution.

Eyal Zandberg and Sigal Kogut replied that certain subjects were more properly left out of the text of the Constitution, and dealt with as necessary, as exceptions to the Constitution using override or limitation clauses.

One difference between temporary override clauses and permanent parts of the Constitution, pointed out MK Eitan , regards the political decision behind them: politics involves making compromises on ideological matters in order to attain important practical goals, and political leaders – as opposed to the court - are often willing to make these compromises, so long as these compromises are not necessarily permanent.

Tzvi Kahana suggested limiting the use of the override clause in such a way that it could not be used to legislate serious human rights violations.

MK Eitan replied that this goes without saying, and indeed must go without saying, as actually including such language in the Constitution would tip the balance of power to the courts. MK Eitan further opined that serious violations of human rights or other basic principles of democracy would be unconstitutional not by virtue of any court decision, but by their very nature. The court would therefore not be voiding the legislation, but simply identifying the legislation as void.

MK Eitan pointed out that, contrary to popular belief, the Knesset treats Supreme Court rulings with great respect and deference; currently, with no Constitution explicitly empowering the court to exercise judicial review, the court has voided a small number of Knesset legislative acts, while the Knesset has never used its legislative power to overturn HCJ rulings.

Tzvi Kahana stated that the court has made clear that it would, in cases of serious human rights violations, exercise judicial review even when an override clause had been utilized. This stood in contrast, he noted, to the Canadian Supreme Court, which has ruled against the possibility of judicial review of any legislation supported by a notwithstanding clause.

Prof. Amnon Rubinstein expressed concern that the availability to the Knesset of the mechanism of override clauses would tempt the Supreme Court to overuse judicial review, in the knowledge that the Knesset could then easily rewrite the law if necessary.

Professor Aryeh Carmon was hesitant regarding overrides, feeling the possibility of using this mechanism would severely undermine the protection of the democratic rights which the constitution is meant to afford.

MK Reshef Chen warned of the danger that the Knesset, functioning in its dual roles as both Legislature and Constitutional Convention, would abuse its power over the citizens, and asked what mechanism is being created to avoid this danger. MK Chen stated that 70 MKs is too low a threshold for overrides, and preferred 80 or 85 MKs, after the adjustment period.

Professor Asher Maoz stated that override clauses are used in Canada in order to enable the Legislature to protect minorities with legislation favorable to them, without the court striking down said legislation. In Israel, said Professor Maoz, it is more likely that the court would be striking down legislation to protect a minority; meaning the mechanism of an override clause comes to enable the Knesset to harm the minority.

MK Avraham Ravitz, on the other hand, expressed doubt regarding the ability of the Knesset to maintain its power under the proposed Constitution using the power to amend and override, stating that in the US, even when there is nearly unanimous agreement on the necessity of repairing the constitution, in practice this is nearly impossible.

MK Ravitz stated that there are certainly instances where the Supreme Court would defend minority rights more effectively than would the Knesset, but that he nonetheless prefers this be left to the Knesset, for one simple reason: "In the Knesset, I too am represented."

MK Ravitz agreed in principle to leaving to the discretion of the Supreme Court matters which do not include faith and opinion.

Professor Shimon Shetreet felt that the Knesset should be empowered to pass overriding legislation with any majority. Professor Shetreet stated that open debate and the marketplace of ideas in the Knesset are the citizen’s protection from Knesset abuse.

Professor Shetreet described coming to this conclusion only after witnessing the damage inflicted upon the court by the current system. Currently, when a majority of MKs finds itself in conflict with the Supreme Court, but an absolute majority of 61 MKs cannot be recruited to overcome the obstacle of the court, the court is subjected to withering attacks on its credibility. Raising the requirement, from that of an absolute majority of 61 MKs, to that of a special majority of 70 MKs, would only serve to exacerbate the problem.

Professor Kahana differentiated between a clause meant to override the constitution, and one meant to override the court. In the former case, the Knesset would declare that it intends to create certain legislation, despite the fact that the legislation does not conform with constitutional requirements. In the latter case, the Knesset would specify that, in its own opinion, the legislation falls within the requirements of the Limitation Clause. Professor Kahana cited the Canadian constitution as an example of an intentionally vague document meant to be open to varied interpretations, where the court’s interpretation might be no more legitimate than the Legislature’s.

However, Professor Kahana felt that the latter type of override is undesirable, as it serves to transform the Knesset into an appeals court for Supreme Court decisions. Eyal Zandberg warned that the Knesset might too readily include such a preemptive override clause, thereby seizing the Judiciary’s authority of judicial review and interpretation.

Dr. Yitzchak Klein questioned whether an override clause would indeed achieve its intended effect, forcing the court to rule according to a law which the court had originally viewed as unconstitutional.

Professor Kahana replied that the court would rule differently in future cases only when the case involved the precise law which was supported by the override clause. However, MK Eitan pointed out that even if the future case, after the passage of an override clause, were identical to the original case, the court would simply find another way to circumvent the Knesset’s override, such as deciding that the case relates to a different statute.

A Limitation Clause, found in the Neeman proposal as well as in certain current Basic Laws, allows the Knesset to pass ordinary legislation contradicting the constitutional legislation, so long as certain procedural and/or substantive conditions are fulfilled.

When the Knesset utilizes a limitation clause to pass legislation, which would otherwise be unconstitutional, the question arises of whether the legislation conforms with the requirements of the limitation clause – for instance, whether it is “befitting to the values of the State of Israel”, and “to an extent no greater than is required” - to which, stated Dr. Gideon Sapir of Bar Ilan University, there is often more than one possible reasonable answer. There is therefore great significance to the identity of those charged with answering the question.

Currently, this responsibility rests entirely in the hands of the court, which Dr. Sapir found problematic. On the other hand, creating an override mechanism would shift supremacy to the hands of the Knesset.

Dr. Sapir suggested limiting the override mechanism such that it empowered the Knesset to override only the court’s interpretation of the Constitution, and not to override the Constitution itself. He further suggested that the override initially take hold for a period of four years, and that at the end of the four years – during which the Knesset would have stood for election – the Knesset could enact the override clause on a permanent basis. This system would more properly effect checks and balances between the Legislature and the Judiciary, and enable the people, via Knesset elections, to ultimately decide matters of ideology.

MK Eitan objected that this proposal would blur the separation of powers, by entrusting the Knesset with powers of interpretation. Eyal Zandberg asked how the distinction between overriding the court’s interpretation, on the one hand, and overriding the actual Constitution, on the other, could be determined. Dr. Sapir answered that this decision would, ultimately, be in the hands of the Knesset.

Dr. Sapir compared this system to President Lincoln’s approach to the US Supreme Court’s Dredd Scott decision, accepting the concrete decision regarding the particular case, but establishing a different interpretation and policy regarding future similar cases.