Howard F Jaeckel

Several people have made the point with regard to my previous post by saying it is impractical because (1) the formation of a national unity government is hard to envision in the current atmosphere and (2)  adopting a constitution is apt to take a very long time.

I think they’re right. I stand by my thought that the adoption of a constitution for Israel should be a near-term objective and that only a center-right/center-left coalition could achieve this.  Without such a coalition, minor parties are sure to block anything they see as reducing their leverage and power in any way.

So let me try to suggest another possible compromise.

In Canada, the national parliament, as well as provincial and local legislatures, can specify that an enacted  law will temporarily apply notwithstanding certain core liberties set forth in Canada’s “Charter of Rights and Freedoms. ”  This gives the relevant legislature the effective power to override Canada’s courts, including its Supreme Court, but such override applies only for a five-year period unless it is renewed by the legislature for an additional five-year period, which is likewise renewable. Since the maximum time between Canadian national elections is also five years, voters are given periodic and repeated opportunities to decide, through their votes for parliament, whether to continue the override, thus leaving the issue to the country’s voters.

A similar provision might be a viable compromise in Israel.   There, the maximum term between elections for the Knesset is four years, and a compromise provision might say that an override vote would apply only for a specified period after the next national election, unless the override were renewed by the new Knesset.  To give additional protection to basic rights, it could also be provided that an immediate election could be called by a designated minority of Knesset members if an override were adopted.  That would have the additional benefit of requiring the governing coalition to risk new elections in order to override the Supreme Court, which might introduce some caution before the government decided to challenge the Court.

Leaving it to the electorate to decide after each national election whether to renew an override vote would hopefully still the overwrought fears that are now being bandied about – i.e., that modifying the presently unlimited power of the Supreme Court to overrule the democratically-elected Knesset would spell the “death of democracy” in Israel.

About the Author
Howard F Jaeckel is a retired American lawyer who worked for a major broadcasting company for many years. He has a longstanding interest in constitutional law and has followed the issue of judicial reform in Israel closely.