30 December 2022

The Theoretical Limits on the Override Power

In 2019, anticipating that Israel might one day adopt an express override mechanism that would enable the Israeli legislature (the Knesset) to override the Basic Laws (Israel’s Constitution), I developed a novel theoretical framework to limit the override power. With the new hard-right government, my theory might be tested in practice. I therefore want to make this theory available in English for international audiences.

The Source of Limits

In Canada, scholars tried to develop a theory that recognizes the inherent limits on the override power based on the proportionality requirements. The idea was that section 33 of the Canadian Charter of Rights and Freedoms allows the political branches to override only certain constitutional provisions. Section 33 cannot be used to do away with the requirement of section 1 that limitations on rights be proportional. To the extent that this theory is predicated on the constitutional phrasing of section 33, it is uniquely Canadian. Moreover, both theoretically and comparatively, proportionality and override are intended to be alternative mechanisms to limit constitutional rights. The idea behind the override is that instead of enacting a statute which limits certain rights in a proportional manner, the legislature may use the override. Therefore, requiring a statute which includes an override to be proportional seems contradictory in terms.  My approach is different and applicable to different legal systems.  I argue that there are inherent limits to the override power that exist independently of the phrasing of the override clause. These limits are derived from the fact that the override power is a legislative mechanism to limit constitutional rights, rather than a mechanism for amending the constitution. Thus, the courts must conduct a substantive inquiry regarding whether the override provisions merely infringe upon the constitutional rights in question or are such a departure from the content of the constitution that they amount to a constitutional amendment. An ordinary statute may, with the inclusion of an override clause, violate certain constitutional rights, but may only do so in a circumscribed manner. This violation cannot redefine the constitutional norm, but rather, has to be limited in terms of both time and scope. However, if the infringement is so extreme that the law and the constitution may not coexist without the law essentially rewriting the constitution, then even though the infringement was legislated in an ordinary statute, it amounts to an amendment. When faced with such a statute, the courts must declare the override provision invalid and instruct the political branches to use the constitutional amendment process if they wish to achieve that goal. Typically, the constitutional amendment process will differ sharply from that which is used to enact ordinary laws, and will reflect the hierarchical nature of the constitution in relation to ordinary laws.

Override or Amendment

Some scholars propose that when designing a constitution, the drafters should set more difficult processes for overriding the constitution than amending it. They believe that the political branches might be less inclined to pay the political price of amending rather than simply overriding the constitution. However, I argue that the whole idea of ​​having an override mechanism is to encourage the legislature to deviate from constitutional norms in a circumscribed manner, by way of limitation and on a temporary basis. It is not intended to incentivize the amendment of the constitution, which would diminish the protection of rights on a permanent basis. Moreover, making the constitutional amendment route more difficult reflects the principle that the constitution must enjoy broad public consent, not merely legislative support. To have a stricter procedure to override the constitution than to amend it would be to reverse constitutional thinking.

Temporariness

When constitutions, which are the supreme law of the land, provide for the possibility of overriding their protections, the override is typically meant to last for the normal term of a particular legislature. This gives the public the opportunity to elect a new legislature which may campaign on the promise to not re-enact the override. The idea is to require each legislature to consider anew whether it wants to override the constitution. The temporality expresses a principled position that the legislature’s use of override is morally dubious. Thus, the default is that the override must expire. But, more fundamentally, I argue that the override must embody a sunset provision to be considered an infringement mechanism. The temporality of the override makes it possible to preserve the distinction between the overriding law and the constitution, as well as the distinction between the ordinary legislature and the political bodies in charge of adopting (and amending) the constitution. Thus, I argue that there is an inherent limitation on the number of times the override can be used in the context of a particular issue. When the override is frequently renewed, to the point that it becomes a de facto permanent fixture, one can argue that this is no longer an override but rather amounts to a constitutional amendment. As such, the court has the power to declare it invalid and direct the political bodies to resort to the amendment process, if they want to make the limitation permanent. Support for this approach can be found in the history of the Israeli constitution. In 1994, the Knesset explicitly overrode the right to freedom of occupation and banned the import of non-kosher meat. Four years later, the Knesset amended Basic Law: Freedom of Occupation, which forms part of Israel’s supreme Constitution, to permanently anchor the ban on the import of non-kosher meat. I argue that the Knesset realized that if it wanted to permanently override the Constitution, it had to do so through a constitutional amendment. The wording of the amendment is general and vague: “the provision regarding expiration […] will not apply to a law passed before the end of a year from the date on which this Basic Law comes into force.” The ambiguity suggests that Knesset felt ashamed when enacting this ban.

Explicit Legislative Language

Under common law, courts required legislatures to explicitly state that they either intend to violate rights or authorize the executive to do so. Otherwise, courts would sometimes interpret statutes narrowly in a manner that would be consistent with common law rights. Moreover, in the absence of explicit language, courts would sometimes assume that the legislature did not intend to authorize the executive to violate common law rights and would thus invalidate executive action as ultra vires. In the absence of explicit language, the power of inertia protected common law rights. Yet, enabling the legislature to use explicit legislative language arguably preserved legislative supremacy over the courts. This common law idea of explicit language within the context of legislative sovereignty was later adopted in constitutions. Requiring the legislature to explicitly state that it is overriding the constitution necessarily leads to public debate, which in turn may convince the legislature to avoid such harm; the legislature might fear the negative political repercussions at the polls. Indeed, the specter of opprobrium at the polls is what has led many to refer to the Canadian override clause as the “paper tiger.” The public nature of this legislative act distinguishes such a constitutional regime from the Weimar Republic, which allowed the legislature to deviate from constitutional norms impliedly in ordinary laws. A temporary law which lacks an explicit override clause is meant to signal to members of the legislature, the public, and even the court that the law should not be struck down as unconstitutional, because it purports to meet the proportionality requirement by virtue of its temporary nature. In my view, such a law is intended to absolve the legislature of responsibility and is diametrically opposed to the very objective of the override.

The Meaning of Temporariness

The Israeli override mechanism is different from its Canadian counterpart. In Canada, when the sun sets on an overriding law (five years after its enactment), the law itself is valid, but its constitutionality can be challenged. There is a Canadian precedent for the validity of such a law. The Supreme Court of Canada even found that the overriding mechanism was not necessary in the first place. I argue that the Canadian approach suggests that the Court and the legislature may hold differing positions regarding the constitutionality of a law. It is even possible for a law that is unconstitutional at the time of its enactment to become constitutional.

In Israel, on the other hand, when the sun sets, the law itself is no longer valid. The assumption is that if the legislature believes that the law is unconstitutional, it is correct in its interpretation and a law that was unconstitutional at the time of its enactment cannot be “cured.” Otherwise, it might be appropriate to adopt the Canadian approach whereby the law continues to be valid and only the override declaration should be void at the end of the limitation period.

Sweeping Overrides

I argue that the override must be limited in scope; a sweeping override is a constitutional amendment in disguise and therefore could not be upheld. This is not the current state of either Israeli or Canadian jurisprudence. In Ford, the Supreme Court of Canada found no difficulty with the sweeping nature of Quebec’s override, even though Quebec repealed all its legislation and re-enacted it by way of reference using override language to protest the adoption of the Charter without its consent.

Similarly, in Israel, prior to the constitutional revolution of the mid-1990s, the Israeli High Court of Justice repeatedly upheld laws with sweeping override clauses. When the Court struck down laws as violating the principle of equality in elections, the Knesset occasionally enacted laws with override clauses. These laws stated that “to remove any doubt,” the enumerated statutes were valid.

Overriding the Court or the Constitution

I argue that the legislature does not have to wait for the court to rule that a law is unconstitutional to enact an overriding law. In fact, it can even be argued that the legislature has no choice – if according to its interpretation, the law is not proportionate, it is not authorized to enact it unless it includes an override clause. In doing so, the legislature publicly assumes responsibility for its actions.

Alternatively, the legislature is empowered to enact an overriding law in response to a court ruling which finds that the law is unconstitutional.  In such a case, the override would reflect the position of the legislature that it disagrees with the judicial interpretation of the constitutional provisions. In such a case, I argue that the override cannot apply retroactively, in a way that overturns the judgment in relation to the parties to the case (res judicata), as that would undermine judicial independence. This incentivizes the legislature to put its cards on the table in advance and override the constitution if it believes that the law does, indeed, violate the constitution in a disproportionate manner. In doing so, the legislature would be forced to publicly take responsibility for its actions, and this may, in turn, deter it from enacting such legislation in the first place.

The Rule of Law

Overriding the constitution can only be done by the legislature, not the executive. In the future, the court may read into the statutory requirement the need to meet a substantive rule of law test. For example, the statute might need to be publicly accessible, general in nature, clear and non-ambiguous, and non-arbitrary. Thus, for example, while the Supreme Court of Canada refused to intervene in the sweeping nature of Quebec’s override in the Ford case, it did rule that such override cannot have retroactive force.

The Override and Principles of Supra-Constitutional Law

The override as a tool for infringing the constitution cannot contradict the constitution so substantially and thoroughly that it amounts to a threat to society’s core principles. This issue was raised by President Barak in his obiter in the Meatrael case. President Barak noted that if a law substantially violates the most basic values ​​of Israel as a Jewish and democratic state, the Court may rule that it is unconstitutional even if the law includes an override provision. His theory was that the override clause obviates the need to meet the conditions of the limitation clause according to its language, but does not, obviate the purpose and principle clauses, as these stand on their own. In my opinion, this linguistic construction is problematic because the override clause, according to its language and purpose, is intended to override Basic Law: Freedom of Occupation as a whole, and not just certain clauses. I propose a different way of substantiating this conclusion: violating the most fundamental values of the constitutional system through overriding laws, is, in fact, a constitutional amendment, and therefore cannot be achieved by enacting an ordinary law with an override clause.

Conclusion

My approach offers courts a whole array of tools to limit the power of legislative overrides. Under this approach, the override power is inherently restricted because it may only limit constitutional rights and values, but not amend the constitution. Understanding its limited value may lessen politicians’ appetite to adopt the override to begin with.

The research is supported by the Israel Science Foundation (grant no. 3080/21). I thank Noam Kozlov and Esther Mendelsohn for their research assistance.