Bill would let Knesset override court
Canada has a similar bill which I discuss below this article
Justice Minister Yaakov Neeman will soon submit a bill that would allow the Knesset to ignore High Court decisions nullifying legislation that it deems unconstitutional, he said earlier this week.
Justice Minister Yaakov Neeman.
A similar, but more draconian measure that had been submitted by former justice minister Daniel Friedmann was approved in the cabinet by a vote of 13 to 12, but was not brought to the Knesset because of the strong opposition to it.
Neeman’s announcement to introduce the controversial bill comes at a time when he is already under fire for pushing to split the functions currently held by the attorney-general into two separate positions.
During a symposium held at Tel Aviv University on Tuesday, Neeman said it had proven impossible to win Knesset approval for an all-encompassing constitution. Instead, the Knesset should advance a written constitution incrementally, gradually legislating one chapter after another.
“I think the first law we should pass should be part of the first chapter, dealing with legislation - how to legislate, what the power of the Supreme Court to overrule legislation should be and how parliament can override the Supreme Court,” said Neeman. “I think that is the most important part.”
The justice minister added that a draft of the legislation he intended to pass already existed.
In 2002, Neeman headed a committee appointed by prime minister Ariel Sharon to propose a law that would deal with the controversial question of judicial review of Knesset laws. The committee prepared a draft entitled Basic Law: The Judiciary (Amendment - Judicial Review of the Validity of Laws.)
But the bill was eventually shelved. Now, Neeman intends to revive it.
The proposal has two basic aims.
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- The first is to assert that only the Supreme Court may reject Knesset legislation on the grounds that it is unconstitutional.
- The second is to empower the Knesset to override a Supreme Court decision to nullify a Knesset law.
According to the bill, after the Knesset has studied the High Court’s decision, it may re-approve the law on condition that a minimum of 70 MKs support it.
In March 2007, newly appointed minister Friedmann’s initiative to present similar legislation met with a storm of controversy. His bill, however, was more draconian than Neeman’s.
In his original draft, he proposed that a majority of 61 MKs was sufficient to override a High Court decision. Later, he increased the required majority to 66.
Friedmann’s bill also stipulated that the High Court could only nullify Knesset laws that violated human rights as guaranteed by the Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation, but no other basic laws.
Furthermore, according to Friedmann’s proposal, a bill nullified by the Supreme Court would remain valid for six months after the court decision unless there were special reasons to cancel it immediately.
On another subject, Neeman said he was opposed to establishing a special court to deal with constitutional issues, another thorny subject which has triggered heated controversy in the past.
“I strongly believe we should not establish a constitutional court in our legal system because it will cause an earthquake in Israel to try to make such a major change,” he said.
“In order to maintain our stability, I suggest that the Supreme Court continue to have the right to decide on constitutional issues. We have enough problems as it is. I don’t want to create another major issue.”
Canada also had concerns that the power of the parliament was being forced to submit to the Court. So they introduced a “Notwithstanding clause”.
Notwithstanding Clause & Constitutional CompromiseIn the late-1970s and early-1980s, the federal and provincial governments undertook negotiations to modernize the Canadian Constitution, which eventually led to the passage of a new Constitution in 1982. Central to these negotiations was a federal proposal to introduce a constitutionally-entrenched set of rights and freedoms to replace the Canadian Bill of Rights (this new set of rights eventually became the Charter).
The federal proposal was, however, a controversial one. Several provinces disagreed with its inclusion on the grounds that it would significantly shift political power from elected legislatures to appointed courts. The Notwithstanding clause was subsequently added to the Charter as a means of alleviating these provincial concerns.
Constitutional Supremacy & Judicial Review
How exactly does the Notwithstanding clause impact the relationship between elected legislatures and the judiciary? In examining this issue it is useful to first discuss two key constitutional concepts: constitutional supremacy and judicial review.
Canada has a constitutional system of government, meaning that its political system is framed by a set of basic rules and norms, which are collectively referred to as the “Constitution.” The Canadian Constitution includes several formal pieces of legislation, such as the Constitution Act, 1867 and the Constitution Act, 1982, as well as a number of unwritten constitutional conventions and norms. The Constitution governs the basic nature of key political institutions, such as parliamentary government (the operation of the executive and legislative branches of government) and federalism (the division of power between different federal and provincial/territorial levels of government).
Moreover, the Constitution is recognized as the supreme law in Canada’s political and legal system. This is referred to as constitutional supremacy. This means that all other laws and government actions must be in accordance with the basic rules and norms set out in the Constitution. A federal, provincial, or territorial government, for example, can only exercise jurisdiction over policy fields given to it under the Constitution.
Finally, the judicial branch of government (the court system) plays an important role in the operation of this constitutional system of government. It is tasked with interpreting the Constitution and settling constitutional conflicts between different political actors. This is referred to as the power of judicial review. When, for example, the provinces believe that the federal government is overstepping its constitutional powers, they can apply to the courts to settle the conflict. The judiciary has the power to review the government’s actions and decide whether or not it is acting within the rules and norms laid out in the Constitution. If the judiciary finds that a constitutional rule has been broken, it can force the offending government to change its actions.
The Charter & the Notwithstanding Clause
What does all of this have to do with the Notwithstanding clause? The provinces were concerned that a constitutionally entrenched Charter would give the courts too much power to review the actions of elected legislatures. As part of the Constitution, the Charter would become the supreme law in Canada’s political and legal system. All other laws and government actions would have to be accordance with these new constitutional rights and freedoms. Moreover, the judiciary would have the power to interpret the meaning of those rights and freedoms, as well as to review the actions of elected legislatures to ensure the Charter is being respected. Instead of simply interpreting and enforcing the Constitution on regular issues, such as the operation of parliamentary government and federalism, the judiciary would now have the power to interpret and enforce a broad set of citizen rights, such as fundamental freedoms, democratic rights, and equality rights.
The Notwithstanding clause was eventually included within the Charter to alleviate these provincial fears of judicial power. Found under Section 33 of the Charter, the clause states:
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
The Notwithstanding clause thus permits elected legislatures (federal, provincial, or territorial) to declare that a particular action or law operates “notwithstanding” or “in spite of” a right or freedom found in the Charter. The judiciary is still responsible for interpreting the Charter and reviewing government actions in general. However, the Notwithstanding clause allows legislatures to make some of their laws or actions temporarily immune from judicial review under the Charter. If, for example, a legislature wishes to pass a law that will unconstitutionally violate the Charter right to freedom of expression, it can make a declaration under the clause stating that the law will continue to stand, regardless of the violation. The judiciary, therefore, no longer has the power to force the legislature to change the law in that case. The Notwithstanding clause thus alleviated provincial concerns of judicial power by permitting legislatures to protect themselves from judicial review under the Charter.
