Will the High Court of Justice overturn the “Notwithstanding Clause” as being unconstitutional?

In recent weeks the political argument about the adoption of the Notwithstanding Clause by which the Knesset may overcome a High Court decision has intensified. As far as 1994, the Notwithstanding Clause was applied in furtherance to the debate concerning the import of non-kosher meat. It was a case of protest by the Knesset, against the Court’s decision concerning Mitral (Non-Kosher meat import company), arguing that legislation limiting meat import limits the Freedom of Occupation and impedes Basic Law: Freedom of Occupation. Pursuant to the Notwithstanding Clause legislation, the High Court of Justice debated among others if the Notwithstanding Clause is empowered to grant protection to a deviant law that violates the basic principles mentioned in the Principles Clause and the Purpose Clause of Basic-Law: Freedom of Occupation.

In the above-mentioned case the Court avoided a frontal confrontation with the Knesset, determining that, in this case, the violation is limited and does not amount to harm the constitutional regime’s foundations; therefore, there is no room, in this special matter, to decide on this issue.

However, what the Prime Minister proposes today is to anchor in a Basic Law a sweeping Notwithstanding Clause, one for which it may be argued that it harms the foundations of the entire constitutional system, and accordingly the question will arise whether the Court will invalidate such a ruling on the grounds that it is unconstitutional. This possibility amounts to a tough frontal confrontation between the central government authorities, and I am not sure if its implications can be easily assumed.

In the last decade, a public debate has been taking place in Israel that deals with the tense relations between the central government authorities and the competition between the formal principle of separation of powers (absolute separation) principle, and the substantive principle of separation of powers (checks and balances). This tension exists in the light of two polar perceptions regarding the principle of the rule of law: The one requiring adherence to the rule of free legislation, whether unjust and unfair as it may be, and the other requiring that the positive law be subordinated to basic principles that guarantee a measure of justice for all. The very existence of this tension is a testimony to the Israeli society’s health, as a whole. This is only an expression of the difference inherent in the identity of the interests of each of the government authorities. However, the scope, extent and manner of managing this tension are disturbing and they are bad predictors of the future of the state.

Unfortunately, this debate is conducted in Israel in light of false claims regarding judicial activism. The truth is that were we dealing with activism, Israel suffers from legislative activism, as the poet Jubran Khalil Jubran writes: “You are very pleased with the making of laws, but greater is your pleasure in breaking them. As children play on the beach, they build sand towers with devotion and destroy them with the cheers of joy”. Apparently, the People’s representatives were oblivious to the words of Achad Ha’am, because “negation will not produce the positive, moral and social qualities we lack.” Similarly, the executive branch also suffers from specific activism; essential services are hurriedly privatized and become subject to narrow business considerations. Apparently, among the executive branch, early ideas of democratic thought were forgotten, according to which the state exists for the People, and not the People for the state.

In recent years, we are witness to the disturbing development of a ruling perception that advocates the non-limitation of the executive branch, arguing that in their being, by definition, elected by the people, they are free to legislate as they deem fit and rule the country’s interest at their best understanding. This perception is a fundamental misconception, and none but a narrow formal understanding of the old and basic democratic idea. Contrarily to the traditional concept, by which a democratic regime is the majority’s exclusive right to rule, constitutional democratic regimes prefer, nowadays, to set standards of reasonability, restraint, and fairness aimed at protecting the minority from the majority’s oppression.

Though, to my modest opinion, there is no judicial issue that has no normative solution, not everything is judiciable. There are issues that need to be sanctioned by either the executive or the legislative powers. However, without derogating from their delegated power, the Court has the full authority to examine if their pronouncements comply with the constitutional standards set by the judiciary system. An impartial examination of the cases in which the judiciary power intervened in the legislative or the executive powers, unequivocally indicates that, contrarily to what is referred to it as “judiciary activism”, the judiciary power excels in restraining itself. Furthermore, it is only to its credit that we have been blessed with a spinal column of basic principles. Should you disagree, how should we construe the fact that the most basic human rights are not anchored in any Basic law?

To our deepest regret, Israel has not yet endorsed any written constitution. Until then, the legislative power will do better by endorsing a Basic law: The Legislation, which is so vital in diminishing the tension between the central ruling powers.

It should be noticed that despite the most conservative proposals of the Basic law: The Legislation, the Court’s mandate to assess the legislative or executive powers has never been negated.

The core of these draft laws is to set explicit standards for the implementation of the judiciary critics, standards which are well-known to the Court, which is willing to adopt them positively. The problem is that such standards are missing among the other powers.

Judging is not just a technical matter, it is matter of making justice. Such a task is not only in its enforcing of existing laws, but also in their interpretation and in developing substantial basic principles that crystalize the principle of the rule of law.

A democratic election process is not, by itself, a sufficient security to ensure the protection of the minority and any other weakened classes, wherever they are. Our Supreme Court, that has won a worldwide most honorable and respectful status, deserves to be respected by us.

It is only strange that the politicians who criticize the Supreme court in Hebrew, choose to support it in English.

The three governing powers are only full and equal partners in the crystallization of Israel’s image. However, as regards to implementation of the laws, their interpretation, development and enhancement, the judiciary power holds the senior role.

It should be remembered that the substantial part of the Bible’s book, Judges, refer to an era when Judges were considered as the leaders of their people and not only as judges who dealt with monetary conflicts. To be remembered and kept in mind!

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* Associate Professor, School of Law, Zefat Academic College. Expert in Constitutional Law, Criminal Law, and International Criminal Law