Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government

The debate surrounding the Override Clause should really focus on the disproportionate power of the Knesset and not on the power of the Supreme Court. All other democracies have structural mechanisms that limit the concentration of power in the hands of one institutions - we must create such a mechanism in Israel as well.

Excerpts from Prof. Amichai Cohen's book "Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government". See link to the Hebrew publication

Introduction:

For some years, and recently, even more so, various political parties have been promoting proposals to limit the Supreme Court’s power. The most extreme proposal would deny the court’s power to strike down any Knesset legislation, giving the Courts at the most- the authority to inform the Knesset that specific pieces of legislation infringe human rights (“The British model”). A more moderate proposal is to legislate the “Override Clause,” that is-a clause to be included in the Basic Law: Human Dignity and Liberty that would allow the Knesset to determine, for a limited period of time that could then be extended, that legislation is valid even though the Supreme Court has ruled that it infringes a basic right.

Discussions on these various proposals usually focus on the Supreme Court’s authority. Supporters of the override clause and other restrictive legislation believe that the Supreme Court erred when it interpreted the Basic Laws as giving it [the court] the authority to strike down laws that infringe human rights protected by these laws, in such a way that deviates from the specific conditions stipulated in these Basic Laws. The supporters claim that this was not the legislator’s intention when the Basic Laws were enacted, and a simple majority in the Knesset cannot legislate a Constitution. Moreover, those in favor of this approach believe that the Supreme Court, an unelected body, should not be given the authority to strike down legislation enacted by the Knesset. They believe that, at most, the Court should be allowed to criticize the legislation (the British model) or to enable it to strike down legislation that can then be overridden by a majority vote of Knesset members (the Canadian model).

In my opinion, focusing on the Supreme Court’s authority and role misses the key point. In order to draw conclusions about the court’s ability to strike down legislation, let us point out some fundamental axioms: Almost all democracies place structural restraints on the power of the political branch. All democracies have competing authorities that keep checks and balances on the power of the others. Therefore, we should not be focusing on the role of the Supreme Court, but rather on the power of the legislative and executive branches in Israel’s democracy.

To a large extent, Israeli political culture merged the power of these two branches. The fact that the heads of Knesset factions who form the coalition also serve as senior members of the government, means government decisions drive a significant portion of the Knesset’s activities. As the almost exclusive barrier to the executive branch which sometimes works through the Knesset, in Israel's political culture, the courts function as are the almost sole guardian checking the power of the executive branch. This is not the only possible democratic solution, but it is Israel’s solution to the problem which troubles all democracies around the world: how to ensure that the elected authorities do not wield too much power. No democracy in the world gives unlimited power to the legislative branch or to the executive branch that oversees the legislative branch. Different democracies have adopted various systems based on their national culture and history, and obviously not all the limitations are relevant for every country. However, each country adopted structural mechanisms to prevent the concentration of too much power in one branch. In Israel, this mechanism is the authority of the judicial branch. This comparative study examines 66 democracies to identify and analyze the structural-formal restraints placed on the political branch. As will be shown in this analysis, without granting the judicial branch the authority to oversee the other branches, Israel will become the sole democracy of significant size in which one elected authority wields practically unlimited power.

The first section of this article presents the theoretical background for the principle of restraining the power of government authorities, even those who are elected In the second section, I explain the method we chose for selecting specific countries and the parameters we chose to analyze. As opposed to other studies, in the current study we compare all the various political mechanisms, and not just judicial oversight. In the third section, we analyze Israel’s political system and describe the importance of the Supreme Court as a historical outcome of this system. The fourth section sets out the study findings. We present a detailed comparative table with all the existing information on the structural and political restraints in each country we examined, and explain why we did not examine certain parameters. In the concluding section, we discuss the question whether it is necessary to change the existing system in Israel.

Summary of Findings

In addition to judicial review that is written in the Constitution, we also examined six structural political limitations: two tier (bicameral) legislative branch; a president with executive powers; a federal form of government; regional elections; membership in the European Union (EU); and acceptance of the authority of the International Court of Justice.

[We have examined only democracies with a population of above 250,000. The reason is that in very small countries the government is kept small in order to avoid the expenses that a large government requires].

We found that 29 of the countries had a bicameral (two-tier) legislative branch; in 28 of the countries the president wields executive power; 11 have a federal system; 27 are members of the EU; and 42 are signed on the Human Rights Convention that includes an influential international court.

In 59 of the countries, the judicial branch has the power to review legislation. In only three of these countries (including Israel) does there exist some form of a narrow override clause.

The comparative analysis shows that besides Israel, there is not a single country without any structural political limitations on the power invested in the legislative branch.

• 6 countries we examined have five limitations: Brazil, France, Germany, Poland, Romania, Spain.

• 8 countries have four limitations: Argentina, Austria, Belgium, Ireland, Italy, Portugal, Switzerland, United States.

• 16 countries have three limitations: Australia, British Barbados, Canada, Chile, Cyprus, Czech Republic, Finland, India, Lithuania, Netherlands, Panama, Slovenia, Surinam, United Kingdom Uruguay.

• 26 countries have two limitations: The Bahamas, Belize, Benin, Botswana, Bulgaria, Costa Rica, Croatia, Denmark, El Salvador, Estonia, Ghana, Greece, Hungary, Jamaica, Japan, Latvia, Luxemburg, Malta, Mongolia, Norway, Peru, Senegal, Slovakia, South Africa, South Korea, Sweden.

• 10 countries have just one limitation: Cape Verde, East Timor, Guyana, Mauritius, Namibia, New Zealand, Serbia, Taiwan, Trinidad and Tobago, Tunisia.

Institutional and Built-in Restraints on Political Authorities

Country	Bicameral legislative branch	President elected in separate vote, has executive power	Federal System	Member of European Union	Regional elections	European (E) / American (A) Court for Human Rights	Judicial review on legislation
Austria	X		X	X		E	CC
Australia	X		X		X		Z
Uruguay	X	X				A	SC
Italy	X			X	X	E	CC
Bahamas	X				X		SC
Ireland	X			X	X	E	SC
El Salvador		X				A	SC
Estonia				X		E	SC
Argentina	X	X			X	A	Z
United States	X	X	X		X		Z
Bulgaria				X		E	CC
Botswana		X			X		NONE
Belgium	X		X	X		E	CC
Belize	X				X		SC
Benin		X			X		SC
Barbados	X				X	A	SC
Brazil	X	X	X		X	A	SC
Great Britain (UK)	X		Partial (Scotland, N. Ireland)	Until 2019)	X	E	NONE (Only a note of caution to Parliament)
Ghana		X			X		SC
Guyana		X					Z
Jamaica	X				X		Z
Germany	X		X	X	X (for Upper Chamber)	E	CC
Denmark				X		E	NONE (besides one exception)
South Africa	X						CC
South Korea		X			X (for the majority of seats)		CC
India	X		X		X		SC
Netherlands	X			X		E	Only if contravenes international conventions
Hungary				X		E	CC
Tunisia		X					SC
Taiwan		X					CC
Trinidad & Tobago	X						Z
Greece				X		E	SC
Japan	X				X		SC
Israel							Z (partial override clause)
Luxemburg				X		E	SC
Latvia				X		E	CC
Lithuania		X		X	X (Partial, only for one chamber)	E	CC
Mauritius					X		SC
Mongolia		X			X		CC
East Timor		X		X			SC
Malta						E	SC
Norway					X (Mixed – proportional/regional)	E	Z
New Zealand					X (Mixed – proportional/regional)		NONE
Namibia		X					SC
Surinam		X			X	A	SC
Slovenia	X			X		E	CC
Slovakia				X		E	CC
Senegal		X			X		CC
Spain	X		X	X	X	E	CC
Serbia						E	CC
Poland	X	X		X	X	E	CC
Portugal		X		X	X	E	CC
Finland				X	X	E	SC (Narrow override clause)
Panama		X			X	A	SC
Peru		X				A	CC
Chile	X	X				A	CC
Czech Republic	X			X		E	CC
France	X	X		X	X	E	CC
Costa Rica		X				A	SC
Cape Verde		X					NONE
Canada	X		X				SC (Override clause)
Cyprus		X		X		E	SC
Croatia				X		E	CC
Romania	X	X		X	X	E	CC
Sweden				X		E	Z
Switzerland	X		X		X (For Upper Chamber)	E	NONE (but constitutional corrections that contradict peremptory norms of international law are not permitted
TOTAL	29	28	11	27	35	42	59

Key:

A/E bound by regional court
CC – Constitutional court
SC – Supreme court with authority to strike down laws explicit in Constitution
Z - Supreme Court with authority to strike down laws no explicit in Constitution