I am one of many people who are very concerned about the new Israeli government's plan to enact a so-called "override clause", which would allow the Knesset to overturn court rulings. To the best of my knowledge, the government has not specified what limits, if any, the override clause will have. Will there be some laws that will be subject to the override clause and others that are not? For example, will the override clause apply to the Basic Law: Human Dignity and Liberty, which specifies the rights and freedoms of Israeli citizens?
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Canada, my country of residence, has its own override clause that Canadians call the "Notwithstanding Clause". This is a clause in Canada's Charter of Rights and Freedoms that allows the country's federal and provincial governments to override the decisions of the judiciary whenever the courts deem laws to be unconstitutional because they violate the charter. However, this clause does not apply to all laws. The Notwithstanding Clause applies only to laws concerning fundamental rights, legal rights, and equality rights. It does not apply to democratic rights, mobility rights, or language rights. The Notwithstanding Clause also includes a sunset clause that limits the period in which a particular law can be overturned to five years, after which the decision to overturn the law must be renewed in order for it to continue being effective.
The use of the Notwithstanding Clause in Canada is rare and controversial. In fact, it is colloquially referred to in Canadian politics as the "nuclear option" for the simple reason that it involves restricting people's rights. Whenever the clause is used, there is almost always an outcry from certain sectors of the public. In Israel, many people fear that an override clause could be used to impose the will of the majority over vulnerable minority groups. Indeed, if Canada's experience with its own override clause is any indication, Israelis should be very concerned.
In an article in The Jerusalem Post on December 28th, retired attorney Paul Nadler, who lived and practiced law in Quebec for many years before immigrating to Israel, wrote about how the Notwithstanding Clause has been used in his former home province to restrict the use of English in the predominantly French-speaking province, resulting in an exodus of English speakers from the province. The example he presents should serve as a warning because if a similar clause is to be enacted in Israel, the government could use it to make laws that might strip the rights of the country's Arab minority. Indeed, the government could make laws that infringe on the rights of any sector of Israeli society. Neither I nor many other Israelis want to see this happen.
The government argues that the judiciary has overstepped its mandate, and has made decisions on laws and policies that should be made by Israel's elected representatives in the Knesset rather than unelected judges. If the government is truly concerned about putting power back in the hands of the people, then they shouldn't mind putting their proposal for an override clause to a referendum. Let the Israeli people decide whether or not they want to give the Knesset the power to override the courts. I suspect, however, that the government will be loath to put their plan for an override clause to a vote by the people because they know that the majority of Israeli voters do not support it. In fact, according to polling from the Israel Democracy Institute (IDI), the majority of Israelis think that the Supreme Court should continue to have the ability to strike down laws that contravene the state's Basic Laws, which are considered to have the collective status of a constitution.
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