The idea that “the last word” on the constitutionality of laws should be that of the legislature went out of fashion after World War II. The perception that every law that the majority prefers, even one that seriously undermines human rights, could be valid just because the majority says so, lost its luster in view of the lessons of history. Therefore, more and more countries have adopted the constitutional democracy model, in which the ability of the legislative and executive branches to harm human rights is limited by a constitution.
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Israel doesn’t have a full constitution, but the ability to overcome it is already on the way. The bill to amend the Basic Law on Human Dignity and Freedom, which has been approved by the legislative cabinet, the Ministerial Committee on Legislation, essentially empties the basic law of all meaning. This is the main basic law that deals with human rights, and that is meant to be part of the full bill of rights that we are still waiting for.
The new bill would allow the Knesset to pass a law that undermines the rights guaranteed by the basic law and doesn’t meet its conditions (not to undermine rights for an unworthy purpose, or in a way that is disproportionate), as long as it states that it is valid despite what is stated in the basic law, and is passed with a majority of 61 MKs.
The clause, known as the “overriding the limitations” clause, also states that such a law would expire after four years from the date it goes into effect, unless an earlier date is specified. This make it possible to relegislate laws that the High Court of Justice has struck down as unconstitutional, like the amendment to the Prevention of Infiltration Law that allowed asylum seekers to be detained without trial and was the trigger for the support for Sunday’s bill. Under the bill, judicial review can be blocked in advance for any law legislated under this clause, as long as it states that it is valid “despite what is stated” in the basic law.
The so-called precedent
The bill’s initiators, led by MK Ayelet Shaked (Habayit Hayehudi), are relying on the presence of a similar clause in the Basic Law on Freedom of Occupation. That clause was included in 1994 when a concern arose, based on an passing remark by the High Court, that a law requiring that meat imported to Israel be kosher would be struck down by the court as violating the freedom of occupation law. The clause was inserted to resolve this concern, and the law on meat imports was legislated accordingly.
That precedent doesn’t bode well, because when the meat import law was set to expire after four years, the Knesset contrived a way to insert an addition to the “overriding the limitations” clause to the effect that expiration of a law after four years would not apply to a law that was legislated within a year of when the clause went into effect. This wording allowed the meat import law to be extended indefinitely, a scenario likely to repeat itself in the current context.
In any case, a comparison to the issue at hand is out of place. The possibility of “overriding" the Basic Law on Human Dignity and Freedom gives the majority the possibility of trampling on basic rights like life, freedom, dignity and even equality. The current case proves this: The bill’s initiators want to relegislate a law that allows people to be held without trial, for indefinite periods of time, and thus, according to the High Court, fatally undermines their right to freedom.
On the short list of laws that the High Court has invalidated in the past – which could also be relegislated if the “overriding the limitations” clause passes – we find, for example, a law that permitted soldiers to be detained for a lengthy period without a court order. We also find provisions of the law on compensation to the settlers evacuated from Gaza during the disengagement, which the High Court struck down because they unlawfully denied the evacuees the money that was coming to them.
These examples show that the possibility of “overriding” human rights is liable to harm everyone, though of course the real risk is to those groups that are weak politically. Tomorrow a Knesset majority could decide that it wants to “override” – i.e., trample on – the rights of Arabs, women, gays, people with disabilities, or any other group.
The idea that a majority can deny the rights of others whenever it feels like it demonstrates a very shallow understanding of what democracy means.