Toward Tyranny of the Majority

Granting the government additional power, which will enable overriding Basic Laws in simple legislation must not be allowed, lest the defense of basic civil rights in Israel are compromised.

Flash 90

On Monday of this week the Canadian Province of Quebec, at its government’s initiative, passed a secularism law, “an act respecting the laicity of the State.” Beyond declarations of separation of religion and state, the law also has a very important operative aspect: It prohibits many state employees (among them judges, police, elected officials, schoolteachers and principals) from wearing clothing that constitutes a religious symbol. Henceforth, a Muslim woman’s head covering – the hijab, an Orthodox Jewish woman’s wig and even a kippa will be forbidden to these workers. Critics of the law argue that it stems mainly from Islamophobia. In any case, it will apply to everyone. Of course the Jewish organizations in Montreal are fighting against it, but to no avail.

Fortunately for the citizens of Quebec, Canada has a constitution that includes the Universal Declaration of Human Rights in which freedom of religion and freedom of occupation are protected. They also have a Supreme Court that does not hesitate to invalidate laws passed by the Canadian Parliament or the provincial parliaments and thereby preserve human rights and the rights of minorities in Canada. Unfortunately for them, the Canadian Constitution also contains the famous “override clause” some are trying to import to Israel, the clause whereby it is possible to pass an ordinary law and explicitly state that it will not be subject to constitutional review. Since the “hijab/kippa” law would certainly be disqualified because of its severe infringement of the freedoms of religion and occupation, In Quebec they saw to it from the outset to overcome that with the override clause – and hence it will be immune to being struck down by the Supreme Court.

This is just one example of the total power (strictly speaking, almost total, because in Canada there is a limited number of rights that are not subject to override) that a parliament can receive, and with that power harass minorities and individuals.

It is customary to offer the override clause in Canada (which is the exception, relative to all other countries’ constitutions, which have no mechanism similar to the one being proposed in Israel) as a “reassuring example” of how this clause is not used extensively. And it is true that in general, the federal Parliament of Canada has not made use of it and most of the provinces have made little use of it.

However, it is also worth noting here the bizarre use that was made of it in Quebec, immediately after the approval of the Declaration of Human Rights. A few weeks after the declaration was passed, Quebec passed a law that says two things: 1) that all Quebec laws have been nullified, and 2) that all the Quebec laws have been re-legislated with an override clause.

In other words: Canada’s constitution does not apply to us Quebecois and we thumb our noses at it. The Canadian Supreme Court approved the validity of this sweeping law and thereby admitted it had no fundamental criticism of the override clause. The sweeping law was not renewed after a period of five years, but Quebec has made use of the override clause several times, as in the case of the current law.

It must be remembered that Israel is not a federation, so the main justification for the inclusion of the Canadian clause does not exist here. The provinces wanted to preserve the freedom to “override” the federal constitution because of the inherent cultural differences among them. In Israel, not only is there no federation, there is also only a single parliament. In contrast to Canada, where an amendment to the Constitution has to be passed by both houses of Parliament and ratified by two-thirds of the provinces, the Knesset also has unlimited power to legislate new Basic Laws and amend them, some by a simple majority and some by a minimum majority of 61 Knesset members.

Granting an additional power, which will also enable a majority coalition to override the Basic Laws in simple legislation, will remove the sole constraint on the power of the majority in the Knesset and, in the division of powers, make the legislature omnipotent. The override clause will transform the basic rights of all of us into a kind of recommendation, which the political majority can, and no doubt will, override easily and that is how more coalition agreements will be made from the outset, for example in matters of religion and state.

The defense of basic rights in Israel is in any case not very strong. It must not be weakened even further.

The article was published in Haaretz.