Democracies enshrine constitutional rights, and give the court the power to protect them, out of concern that the legislator may act rashly, or even tyrannically. Why should we "override" the court's authority - when we have no other constraints?
Imagine I’m at a party. I’m worried I might get drunk, so I hand my car keys over to a friend and say: Don’t give them back to me until we get home. My friend agrees. But then I add: Well, if I say that I really want the keys because I’m capable of “overriding” my drunkenness, then please let me drive anyway.
This well-known allegory demonstrates the absurdity of a mechanism that allows exceptions to be made from the constitution: We enshrine constitutional rights, and give the court the power to protect them, out of concern that the legislator may act rashly, or even tyrannically. This concern is in no way lessened if the legislator declares that it has “overridden” its rashness or its tendency to infringe on the rights of minorities. On the contrary—that is when we should be even more suspicious. The correct term for such a mechanism is “exception,” not “override.”
Supporters of a mechanism allowing the legislator to make exceptions to the constitution, argue that describing the legislator as a body that might “get drunk” is unfair, and borders on hysteria. In their view, it is actually the court that is sometimes intoxicated by its power, and in those cases, it needs to be “overridden.” Thus, they claim, the correct name for such a mechanism is the “override” mechanism, as there is no “exception” here from the constitution; on the contrary, by means of such a mechanism, the legislator can reinstate laws that were struck down by the court because the court interpreted the constitution incorrectly—usually, too broadly.
Those in favor of creating such a mechanism often cite the case of Canada, whose bill of rights provides for just such an arrangement—though in Canada, too, this mechanism has on several occasions been used to trample over human rights. More importantly, there are at least four significant differences between Canada and Israel which make it a bad idea to institute an “exception mechanism” in Israel:
1. The scope of application: The proposals in Israel are for an exception mechanism that would allow exceptions not only to the rights enshrined in the Basic Law: Human Dignity and Liberty, but to all the provisions of Israel’s Basic Laws, including those relating to the structure of the government and the respective powers of the branches of State. By contrast, the Canadian exception mechanism permits exceptions only from specific provisions of the constitution that relate to human rights. It does not allow exceptions to the right to vote and be elected, the right to freedom of movement, or minority education rights; nor does it allow exceptions to the sections of the constitution relating to the structure of the government, the powers of the respective branches of State, and the distribution of powers between the central government and the provinces. The most pressing issues in Canada, which relate to the relations between the central government and the provinces, are not covered by the exception mechanism, based on the understanding that when it comes to the most fundamental principles of government, the court should have the final say.
2. Constraints on the legislator: Apart from judicial overview of legislation, the Israeli legal system has no other checks on the power of the legislator. Canada is a federal state with eleven legislative institutions—the federal parliament, and the legislative assemblies of each of the provinces. Consequently, there is no single institution holding overall legislative power. Each legislative assembly in Canada has less power than does the Knesset, and thus the areas in which each Canadian legislative assembly is able to pass laws—and to make inappropriate use of the exception mechanism—are a priori more limited than those available to the Knesset. Moreover, the Canadian parliament is bicameral, and any federal law must be passed by both the House of Commons and the Senate. The members of the Canadian Senate are appointed, not elected, which reduces the risk of the Senate acting in a populist manner.
3. The constitutional tradition: Unlike Canada, which has a constitutional traditional stretching back some 150 years, the constitutional culture in Israel is not yet stabilized. It is still contested and unsettled; human rights do not yet have a firm basis; and even the principles of the rule of law and equality do not enjoy a consensus. Canada’s legal system has a strong public standing, whereas the legal system in Israel faces fierce attacks that seek to undermine its legitimacy. While the public debate in Israel is not only about a particular court ruling, but rather-about the fundamental principle of judicial oversight of legislation, in Canada there is near consensus about the need for judicial oversight of human rights.
4. The status of the principle of equality: In Canada, a long line of provisions in the constitution and in legislation anchor the country’s multiculturalism and its minorities'" rights to equality before the law. In Israel, on the other hand, the Jewish religion and nation enjoy preferential status in various constitutional, legislative, and cultural contexts. To offer one example: According to a survey conducted by the Israel Democracy Institute last year, only around 30% of Jews in Israel believe that Arabs should be allowed to buy land anywhere in Israel. By contrast, equality before the law is sacrosanct Canada; it is difficult even to imagine conducting g a survey in Canada in which citizens are asked to rate their willingness to allow members of a specific group in the population to buy land anywhere in the country.
The proposals for adopting an exception mechanism are usually justified by the assertion that the Supreme Court has too much power, and this power needs to be “balanced.” Human rights protect individuals and minorities, and so it is only natural that they will sometimes attract criticism from members of the majority. But the claim that human rights prevent the representatives of the majority from exercising their will, is not an argument in favor of an exception mechanism; rather, it is an argument against the very principle of human rights, one that stems from a fundamental misunderstanding of the principle of democracy.
Recent years have seen the spread, in Israel and around the world, of a populist conception of democracy, in which decisions by the majority are in fact the essence of democracy itself, and thus any attempt to overrule acts by the government—not only legislation, but also administrative acts—is invalid. According to this populist approach, insofar as the court is not elected and does not represent the majority, it has no power to strike down the actions of majority-ruled institutions. This is not the case. Democracy is designed to balance the will of the majority against the rights of the minority, and not every decision of the majority is a democratic decision.
In the Israeli context, the Supreme Court has a long and consistent record of defending human rights. By contrast, the Knesset’s record in this regard is controversial. Many of the proposals for the adoption of an exception mechanism in Israel are not based on acceptance of the principles of human rights and the rule of law, but rather on an approach of untrammeled majority rule that does not give sufficient weight to human rights and the rule of law. Thus, in my opinion, there are strong grounds for the fear that the exception mechanism would be used to pass legislation which includes tyrannical features.
* Tsvi Kahana is a Professor of law at Ono Academic College and an expert in Canadian constitutional law. He is currently completing a policy research study for the Israel Democracy Institute on the exception mechanism in Israel and in Canada