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Juxtaposing Constitution-Making and Constitutional-Infringement Mechanisms in Israel and Canada: On the Interplay between Common Law Override and Sunset Override†

Published online by Cambridge University Press:  29 February 2016

Rivka Weill
Rivka Weill*
Affiliation:
Associate Professor (tenured), Radzyner School of Law, Interdisciplinary Center (IDC); JSD, Yale Law School. rweill@idc.ac.il.
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Abstract

This article explores the often neglected relationships between constitution-making (including amendment) mechanisms and constitutional-infringement mechanisms by focusing on the override as one of the possible tools to depart from a Constitution. The article suggests that there are two types of override: a ‘common law override’, which is not uniquely Canadian, and a ‘sunset override’. The common law override evolves in the judicial decisions of a given country when the courts require the legislature to explicitly take responsibility for an action. Under the common law override, we may couple together phenomena that are not typically connected, including a means of protecting common law rights, a judicial presumption against delegation of power to administrative agencies, and mechanisms of dealing with procedural or substantive legislative entrenchment. In contrast, the sunset override is a Canadian invention. For the tool to be part of the infringement mechanisms of a country's Constitution, it must be provided for explicitly in that Constitution, and its exercise must be temporary.

This article follows the various possible uses of the common law override. It shows that Israel has vast experience with the common law override which may shed light on Israel's future possible exploitation of the sunset override. The article then shows that Israel has adopted the sunset override following the Canadian example. When the Rabin government adopted the tool as part of an exchange deal with the ultra-orthodox religious political party Shas, the terms of the deal included Shas' acquiescence to the peace process in exchange for the Rabin government's use of the override to protect the religious status quo from judicial intervention. In addition, the Israeli justices played an active and unique role in the birth and formulation of the Israeli override. As has happened with the Canadian override, supposedly these circumstances should have made the override illegitimate in Israel. However, this article argues that it is not the political uses of the override that result in its lack of use. Rather, the determining factor is the override's compatibility with the constitution-making process in a given country. From a normative perspective, it is easier for the Israeli legislature to override its own earlier enactments, even those titled Basic Laws, than it is for the Canadian legislature to override the People's enactment of the Charter. Thus, it is expected that Israel might more freely deploy the sunset override were it to become a general mechanism embodied in the Basic Laws, while, in contrast, the sunset override has fallen into disuse in Canada.

Keywords

override powernotwithstanding clausetransplantsconstitution makingconstitutional amendmentsunset overridecommon law overridedesuetudepopular sovereigntyparliamentary sovereigntynon-delegation doctrineconstitutional statutesinfringement of rightsrestriction of rights
Type
Symposium Articles
Information
Israel Law Review , Volume 49 , Issue 1 , March 2016 , pp. 103 - 130
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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Footnotes

†

This article is part of a symposium collection of contributions relating to the constitutional override clauses in Israeli and Canadian constitutional law. The other articles in this issue making up this symposium are Adam Dodek, ‘The Canadian Override’, and Lorraine E Weinrib, ‘The Canadian Charter’s Override Clause’.

References

1 eg, Weinrib, Lorraine E, ‘The Canadian Charter's Override Clause: Lessons for Israel’ (2016) 49 Israel Law Review 67CrossRefGoogle Scholar.

2 Canadian Charter of Fundamental Rights and Freedoms, Constitution Act 1982 (UK), Pt I (Sch B to the Canada Act 1982 (UK), Ch 11). See, eg, Segal, Zeev, ‘Israel Ushers in a Constitutional Revolution: The Israeli Experience, The Canadian Impact’ (1994) 6 Constitutional Forum 44, 45Google Scholar.

3 Basic Law: Freedom of Occupation, 1994 (Israel), s 8(a) provides: ‘A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4 [the limitation clause], if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein’.

4 Revital Hovel, ‘Supreme Court: Right to Overturn Laws Needed to Protect Israel's Minorities’, Ha'aretz, 11 November 2014, http://www.haaretz.com/news/israel/.premium-1.625751 (discussing criticism of a general override clause by Supreme Court President Asher Grunis); Yonah Jeremy Bob, ‘Ex-Chief Justice Barak: Override Legislation “Poison Pill for Every Basic Law”’, The Jerusalem Post, 30 April 2015, http://www.jpost.com/Israel-News/Ex-chief-justice-Barak-Override-legislation-poison-pill-for-every-basic-law-400633 (discussing criticism of a general override clause by former President of the Supreme Court, Aharon Barak).

5 Thus, for example, the Association for Civil Rights in Israel criticised the proposed Basic Law: Legislation, 2012 (Israel): ‘The proposed law is important because it contains a dangerous paragraph that states that when the Supreme Court strikes down an illegal law, the Knesset can re-establish it with a majority vote of 65 Knesset members. The law would then be valid for five years, though it can be re-enacted every five years from that point without any restrictions. This provision will grant the Knesset majority the power to infringe upon human rights generally, and the rights of minorities in particular, in a manner that contradicts the essence of the Basic Law whose aim it is to protect the rights of minorities from the tyranny of the majority. It additionally threatens the balance necessary for an effective separation of powers needed in a proper democracy’: The Association for Civil Rights in Israel, ‘Update: Anti-Democratic Legislation Initiatives’, 2 August 2012, http://www.acri.org.il/en/2012/08/02/update-anti-democratic-legislation-initiatives. See also Amir Fuchs, ‘Viewpoint: Override – A Serious Blow to Democracy’, The Jerusalem Report, 19 May 2015, http://www.jpost.com/Jerusalem-Report/Viewpoint-Override-A-serious-blow-to-democracy-402811.

6 Draft of Basic Law: Legislation, 2012 (Israel), http://www.tazkirim.gov.il/Tazkirim_Attachments/41283_x_AttachFile.doc (in Hebrew; detailing the general override clause proposal of Minister of Justice Ya'akov Ne'eman); draft of Basic Law: Human Dignity and Liberty, 2013 (Israel), http://www.knesset.gov.il/privatelaw/data/19/1944.rtf (documenting Ayelet Shaked's draft amendment for Basic Law: Human Dignity and Liberty and including an override clause in it).

7 For discussion of the override as a tool granting the legislatures the final word in constitutional matters, see Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008) 18–42; Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) 97–129.

8 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221 (United Mizrahi Bank), http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf.

9 The 1992 Basic Laws include a limitation clause requiring any statute that infringes their provisions to pass muster under the following four-part cumulative substantive test: (1) the conflicting provision must be in a statute or authorised by a statute; (2) the infringement must be compatible with the values of a Jewish and democratic state; (3) it must be done for a proper purpose; and (4) it must be proportional: Basic Law: Human Dignity and Liberty, 1992 (Israel), s 8; Basic Law: Freedom of Occupation (n 3) s 4, as amended.

10 HCJ 148/73 Kniel v Minister of Justice 1973 PD 27(1) 794, 795; HCJ 60/77 Ressler v The Chair of the Central Elections to the Knesset Committee 1977 PD 31(2) 556, 560.

11 Jonathan Lis, ‘Bill Allowing Knesset to Override High Court Goes to Cabinet’, Ha'aretz, 21 October 2014, http://www.haaretz.com/news/.premium-1.621861.

12 HCJ 7146/12 Adam v The Knesset (unpublished, 16 September 2013); HCJ 8425/13 Eitan – Israeli Immigration Policy v The Government of Israel (unpublished, 22 September 2014); HCJ 8665/14 Dasta v The Knesset (unpublished, 11 August 2015). The statute governing illegal entrants was first struck down for infringing too greatly the illegal entrants’ right to freedom because the statute enabled the administration to hold them in detention for up to three years. After the legislature amended the statute to enable their detention for up to a year and then authorising the administration to hold them indefinitely in open guarded places, the Court struck down the one-year detention as too long, as well as the open guarded places for being, inter alia, unlimited in duration. In the third decision, the Court struck down the provision that still enabled the holding of illegal entrants in open guarded places for up to 20 months.

13 Moran Azulay, ‘Ministers Approve Bill to Override High Court’, Ynet, 26 October 2014, http://www.ynetnews.com/articles/0,7340,L-4584500,00.html.

14 Draft Basic Law: Legislation, prepared by the Ne'eman Committee in 2004: https://www.google.co.il/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CDUQFjACahUKEwjbtM7Yy93IAhUEzRQKHZYyCik&url=http://%3A%2F%2Fmain.knesset.gov.il%2FActivity%2FConstitution%2FDocuments%2FH25-03-2004_9-27-09_hakika.doc&usg=AFQjCNFDsBJcG5YNqBWWQg5qR1lo2IxFJQ.

15 Constitution Act 1982 (n 2) s 33.

16 See Sections 3 and 10 below.

17 For Justice Cheshin's unique opinion regarding the override in the United Mizrahi Bank decision (n 8), see Section 4 below.

18 A discussion of the existence of the override during Israel's founding period with regard to s 4 Basic Law: The Knesset may be found in Weill, Rivka, ‘Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power’ (2012) 39 Hastings Constitutional Law Quarterly 457Google Scholar.

19 eg, Dodek, Adam, ‘The Canadian Override: Constitutional Model or Bête Noire of Constitutional Politics?’ (2016) 49 Israel Law Review 45CrossRefGoogle Scholar.

20 For a discussion of the connection between constitution making and strength of judicial review, see Weill, Rivka, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making’ (2014) 62 American Journal of Comparative Law 127CrossRefGoogle Scholar; cf Gardbaum (n 7); Tushnet (n 7).

21 In support of this argument, see Weill, Rivka, ‘Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care’ (2012) 30 Berkeley Journal of International Law 349Google Scholar.

22 eg, CA 450/70 Rogozinski v The State of Israel 1971 PD 26(1) 129. In that case, a Jewish couple who wished to be wed in a civil ceremony, rather than according to Jewish law, claimed that the 1953 statute imposing Jewish religious law on every marriage and divorce of Jewish Israeli citizens and inhabitants infringed their right of freedom from religion. The Court denied their petition because individual rights, even if embodied in the Declaration of Independence, could not prevail over explicit conflicting statutes.

23 eg, HCJ 1/49 Bezerano v Minister of Police 1949 PD 2 80; HCJ 262/62 Peretz v Head of Local Municipality Kfar Shemaryahu 1962 PD 16 2101; HCJ 337/81 Miterani v Minister of Transportation 1983 PD 37(3) 337.

24 To this day there are ongoing hot debates among the judiciary in various common law countries regarding the legitimacy of purposive interpretation: Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997). This is not true of Israel, which has uniformly adopted purposive interpretation as the only legitimate interpretation method for its judiciary.

25 With regard to infringement of constitutional rights, the requirement that the legislature should explicitly authorise the administrative branches to infringe rights arises from the requirements of the limitation clause in the Basic Laws. Furthermore, the text of the limitation clause sets additional requirements for infringing constitutional rights and is not satisfied with explicit authorisation alone. See discussion in Section 4 below.

26 Bezerano (n 23); Miterani (n 23).

27 Bezerano (n 23).

28 Usually the Knesset may amend laws by simple majority: Basic Law: The Knesset, 1958 (Israel), s 25. Most Basic Laws may be amended via simple majorities: Weill (n 18) 473–76.

29 Basic Law: The Knesset, ibid, s 4 states: ‘The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset’, http://www.knesset.gov.il/laws/special/eng/basic2_eng.htm.

30 HCJ 98/69 Bergman v Minister of Finance 1969 PD 23(1) 693; an English translation is available in (1969) 4 Israel Law Review 559.

31 ibid; HCJ 246/81 Agudat Derech Eretz v Broadcasting Authority 1981 PD 35(4) 1; HCJ 141/82 Rubinstein v Chairman of the Knesset 1983 PD 37(3) 141; HCJ 142/89 Laor Movement v Chairman of the Knesset 1990 PD 44(3) 529.

32 Weill (n 18) 488.

33 In three out of four cases – Bergman (n 30), Agudat Derech Eretz (n 31) and Laor Movement (n 31) – the Knesset circumvented the Court's exercise of judicial review by using retroactive revalidation of infringing statutes: ibid 495.

34 Parliamentary Debates, Basic Law: The Knesset Draft Law, 1 August 1990, 4972–73.

35 HCJ 410/91 Blum v Chairman of the Knesset 1992 PD 46(2) 201 (affirming the validity of Basic Law: The Knesset, 1990 (Israel), amendment 11).

36 HCJ 3166/14 Gutman v The Attorney General (unpublished, 12 March 2015) (dealing with the rise of the election threshold to 3.25% in Israel's proportional representation election method). The justices expressed various opinions regarding this issue in the decision.

37 A judicial limitation clause requires the legislature to infringe rights proportionally, just like the requirements of the explicit limitation clauses of the 1992 Basic Laws. For the requirements of the explicit limitation clauses, see n 9. For discussion of how to infringe s 4 Basic Law: The Knesset, see Weill, Rivka, ‘Did the Lawmaker Shoot a Canon to Hit a Flea? On Proportionality in Law’ (2012) 15 Law and Business Journal 337, 384–90Google Scholar.

38 HCJ 1368/94 Porat v Government of Israel 1994 PD 57(5) 913.

39 United Mizrahi Bank (n 8) 530–67 (Justice Cheshin).

40 ibid 530–35 (Justice Cheshin).

41 ibid 535–44 (Justice Cheshin).

42 ibid 551–63 (Justice Cheshin).

43 Karp, Judith, ‘Basic Law: Human Dignity and Liberty: A Biography of Power Struggles’ (1993) 1 Mishpat Umimshal [Law and Government] 323Google Scholar, 344 fn 78 (in Hebrew).

44 eg, Barak, Aharon, ‘The Constitutional Revolution: Protected Basic Rights’ (1992) 1 Mishpat Umimshal [Law and Government] 9, 20–22Google Scholar (in Hebrew); Aharon Barak, Interpretation in Law: The General Theory (Nevo Press 1992) 561–63 (in Hebrew).

45 Barak, ‘The Constitutional Revolution’, ibid.

46 eg, Karp (n 43) 380 (Judith Karp was the Vice Attorney General associated with the enactment of the 1992 Basic Laws); Elon, Menachem, ‘Constitution by Legislation: The Values of a Jewish and Democratic State in Light of the Basic Law: Human Dignity and Personal Freedom’ (1993) 17 Iyuney Mishpat [Tel Aviv University Law Review] 659Google Scholar, 662 (in Hebrew) (Vice-President of the Supreme Court at the time of writing his article); Kretzmer, David, ‘The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?’ (1992) 26 Israel Law Review 238Google Scholar, 242 (Professor of Pubic Law at the Hebrew University).

47 United Mizrahi Bank (n 8) 409 (President Barak).

48 eg, HCJ 212/03 Herut – The National Movement v Chairman of the Central Elections Commission to the Sixteenth Knesset 2003 PD 57(1) 750; EA 92/03 Mofaz v Chairman of the Central Elections Commission to the Sixteenth Knesset 2003 PD 57(3) 793, 811.

49 Before the constitutional revolution, the Basic Laws dealt with constitutional issues, such as the division of power among branches of government, but they did not enjoy constitutional status. Thus, for example, s 4 Basic Law: The Knesset was a semi-constitutional provision during that period: Weill (n 18).

50 Woman's Equal Rights Law, 1951 (Israel), s 1a(a). For a non-official translation, see http://financeisrael.mof.gov.il/FinanceIsrael/Docs/En/legislation/LaborSocialPolicy/5711-1951_Equal_Rights_for_Women_Law.pdf.

51 Commodities and Services Control Law, 1957 (Israel), s 46(b).

52 eg, HCJ 104/87 Nevo v National Labour Court 1990 PD 44(4) 749, 764 (regarding the Woman's Equal Rights Law); HCJ 256/88 Medinvest Herzliya Medical Centre v CEO of Minister of Health 1989 PD 44(1) 19, 42–46 (regarding the Commodities and Services Control Law).

53 For the rationale of this maxim, see Petroski, Karen, ‘Retheorizing the Presumption against Implied Repeals’ (2004) 92 California Law Review 487CrossRefGoogle Scholar; Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press 1982).

54 Budget Principles Law, 1985 (Israel), s 3a(d).

55 In 2010, the Court found a provision in a budget statute to be invalid because it provided money to ultra-orthodox Yeshiva students who needed financial support, primarily because no similar stipend had been granted to students in the higher education system. The Court delayed the operation of its decision to the next budget year to allow the elected branches and the ultra-orthodox community to prepare for the change: HCJ 4124/00 Yekutieli v Minister of Religious Affairs 2010 PD 64(1) 142. The Court derived the annual budget's duty to treat similar positioned people alike from the Budget Principles Law, but, towards the end of its decision, the Court applied the substantive limitation test of the Basic Laws: ibid, President Beinish's opinion, paras 42–51. This limitation test is relevant only in the context of the Basic Laws and to protect their supremacy. Thus, it seems that, after all, the Court was undecided regarding the source of the duty to treat equally ultra-orthodox Yeshiva and higher education students: did it derive from the basic right to human dignity provided for in Basic Law: Human Dignity and Liberty, or from the Budget Principles Law? If the former, there was no need to rely on the substantive entrenchment nature of the Budget Principles Law. If the latter, there was no need to apply the Basic Law's substantive limitation test.

56 HCJ 1438/98 Conservative Movement v Minister of Religions 1999 PD 53(5) 337. It should be clarified that even if, in some instances, one could derive the duty to allocate money equally to similarly positioned people from the constitutional right to human dignity, there are contexts in which the duty to allocate resources equally will not derive from this constitutional right and will thus have to rely on the substantive entrenchment provision of the Budget Principles Law alone. In such cases, the legislature will probably be able to explicitly override the equality provision of the Budget Principles Law, as provided in Justice Cheshin's Conservative Movement decision, ibid.

57 It is more like an executive order than a statute. The budget law is also temporary in nature, applying to particular fiscal years: Conservative Movement, ibid 385–88.

58 Colin Turpin and Adam Tomkins, British Government and the Constitution: Text, Cases, and Materials (6th edn, Cambridge University Press 2007) 567; AW Bradley and KD Ewing, Constitutional and Administrative Law (12th edn, Pearson Education 1997) 218.

59 In fact, the House of Lords’ rejection of the Budget Act 1909 in Britain led to a severe constitutional crisis and the enactment of the Parliament Act 1911, which curtailed the Lords’ veto power with regard to the budget. The other branches of government could not accept that an unelected body, such as the Upper House, could intervene in the budget: Weill, Rivka, ‘We the British People’ (2004) Public Law 380Google Scholar.

60 HCJ 3267/97 Rubinstein v Minister of Defense 1998 PD 52(5) 481, 508 (President Barak, striking down the Minister of Defense directive to de facto exempt Yeshiva Students from serving in the army) (author's translation).

61 HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v Prime Minister of Israel (unpublished, 27 February 2006), paras 37–40 (Vice-President Justice Cheshin), http://elyon1.court.gov.il/files_eng/03/630/111/a18/03111630.a18.htm; ibid 520–23.

62 eg, Rubinstein (n 60) 490–531 (President Barak).

63 HCJ 4491/13 College of Law and Business v Government of Israel (unpublished, 2 July 2014), para 26 (majority opinion written by President Grunis). The decision upheld the government's contentious decision regarding the export of natural gas.

64 ibid, Justice Rubinstein minority opinion, para 11.

65 Weill (n 37) 409–10; Barak Medina, ‘The Non-Delegation Doctrine – A Reply to Dotan and Sapir’ (2012) 42 Mishpatim 449 (in Hebrew).

66 Sapir, Gideon, ‘Non-Delegation’ (2010) 32 Iyuney Mishpat [Tel Aviv University Law Review] 5 (in Hebrew)Google Scholar; Dotan, Yoav, ‘Non-Delegation and the Revised Principle of Legality’ (2012) 42 Mishpatim 379 (in Hebrew)Google Scholar.

67 Basic Law: Freedom of Occupation, 1994 (Israel), s 8.

68 Basic Law: The Knesset, 1958 (Israel), s 8.

69 Parliamentary Debates, Basic Law: Freedom of Occupation Draft Law, 9 March 1994, 5412 (MK David Zuker, opining that it should last for one term).

70 HCJ 4676/94 Meatrael Ltd v Knesset 1996 PD 50(5) 15 (discussing when a statute which overrides Basic Law: Freedom of Occupation may be invalid under Basic Law: Human Dignity and Liberty).

71 Parliamentary Debates, 9 March 1994 (n 69) 5412 (MK David Zuker).

72 ibid 5439 (67 to 9 in last reading of Basic Law: Freedom of Occupation).

73 Basic Law: Freedom of Occupation passed its first reading with a vote of 21 to 16, and the final reading was passed with the support of 23 MKs and none against; Basic Law: Human Dignity and Liberty passed its first reading with a vote of 40 to 12, and the final reading with the support of 32 MKs and 21 against: Amnon Rubinstein and Barak Medina, The Constitutional Law in the State of Israel, Vol 2 (5th edn, Shocken 1996) 918.

74 Tsvi Kahana, ‘Majestic Constitutionalism? The Notwithstanding Mechanism in Israel’, in Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart 2013) 73.

75 Dan Meridor, ‘Court Rulings in Light of the Basic Laws’, in Chaya Herskovic (ed), Constitutional Reform in Israel and its Implications – Conference Proceedings June 1994 (Stiftung 1995) 69, 70–71. See also Rubinstein and Medina (n 73) 915; Rubinstein, Amnon, ‘The Story of the Basic Laws’ (2012) 14 Law and Business 79 (in Hebrew)Google Scholar.

76 Parliamentary Debates, 9 March 1994 (n 69) 5413 (MK Dan Meridor).

77 Weill, Rivka, ‘Constitutional Transitions: The Role of Lame Ducks and Caretakers’ (2011) Utah Law Review 1087Google Scholar.

78 Karp (n 43) 338.

79 Benvenisti, Eyal, ‘The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement’ (1993) 4 European Journal of International Law 542CrossRefGoogle Scholar.

80 This majority was composed of Labour (44), Meretz (12) and Arab parties (5): Colin Shindler, A History of Modern Israel (2nd edn, Cambridge University Press 2013) 235–36.

81 The Thirteenth Knesset, http://www.knesset.gov.il/review/ReviewPage.aspx?lng=3&kns=13.

82 HCJ 3872/93 Meatrael Ltd v Prime Minister and Minister of Religious Affairs 1993 PD 47(5) 485.

83 Parliamentary Debates, Basic Law: Freedom of Occupation Draft Amendment (An Alternative Draft), 15 February 1994, 4546 (MK Tamar Gozansky).

84 eg, Kahana (n 74) 83.

85 Meatrael (n 82) 497, 505 (Justice Or requiring explicit authorisation and amendment of the Basic Law), 514 (Justice Cheshin requiring explicit authorisation).

86 Draft of Basic Law: Freedom of Occupation (Amendment), 1993 (Israel), s 2.

87 For Barak's letter, see Aharon Barak, ‘On the Amendments to Basic Law: Freedom of Occupation’ (1994) 2 Mishpat Umimshal [Law and Government] 545 (in Hebrew).

88 ibid 547.

89 Parliamentary Debates, 15 February 1994 (n 83) 4522 (Minister of Justice Libai quoting Barak during the second and third readings of Basic Law: Freedom of Occupation, 1994).

90 Parliamentary Debates, 9 March 1994 (n 69) 5368–71.

91 ibid 5358–62.

92 ibid.

93 It should be emphasised that this preservation clause has a sunset mechanism but it does not reflect an override mechanism. A provision within the Constitution can never override another provision in the Constitution; it may only amend it.

94 The government publicised the draft of the Basic Law on 14 February 1994, and the Basic Law became law soon after, on 9 March 1994: Basic Law: Freedom of Occupation, 1994 (Israel).

95 Bendor, Ariel, ‘Defects in the Enactment of Basic Laws’ (1994) 2 Mishpat Umimshal [Law and Government] 443, 445–46 (in Hebrew)Google Scholar.

96 ibid 447.

97 Basic Law: Freedom of Occupation, 1994 (Israel), s 1; Basic Law: Human Dignity and Liberty, 1992 (Israel), s 1 (as amended).

98 Rubinstein and Medina (n 73) 924.

99 Dodek (n 19).

100 Jonathan Lis, ‘Bill Allowing Knesset to Override High Court Goes to Cabinet’, Ha'aretz, 21 October 2014, http://www.haaretz.com/news/.premium-1.621861. Shaked is quoted as saying: ‘The override clause doesn't give the legislature a “pass” from its obligation to obey the Basic Law's values’. It is intended to grant the Knesset ‘the last word in the situation of a sincere and genuine disagreement over values between the public's elected representatives and the court. In this situation, there is no justification for preferring the judge's world of values to that of the public and its elected representatives’.

101 It should be noted that MK Yitzhak Levi from the Mafdal wanted to clarify in the phrasing of the Basic Law that the override is of judicial interpretation of the Basic Law rather than an override of the Basic Law, but his comment did not materialise to affect the phrasing of the Basic Law: ‘Parliamentary Debates’, 9 March 1994 (n 69) 5372.

102 Even if the Constitution contains an override clause, the political actors should not be able to overturn a judicial decision as it pertains to the parties to the case. Such an intervention would be against separation of powers and threaten the independence of the Court; however, they should be able to overrule the precedential nature of the decision with regard to future cases.

103 These are the framework statutes identified by Bruce Ackerman in his We the People trilogy (Harvard University Press 1991); for discussion see Rivka Weill, ‘Constitutional Statutes or Overriding the Court’ (forthcoming) Jerusalem Review of Legal Studies.

104 HCJ 5364/94 Velner v Chair of the Israeli Labour Party 1995 PD 49(1) 758, 771 (President Shamgar).

105 ibid 787 (Vice-President Barak).

106 ibid 789 (Vice-President Barak).

107 ibid 778 (President Shamgar), 790–92 (Vice-President Barak).

108 ibid 777 (President Shamgar). HCJ 1000/92 Bavli v The High Rabbinical Court 1994 PD 48(2) 221.

109 Velner (n 104) 811 (Justice Goldberg).

110 ibid 784 (Vice-President Barak), 812 (Justice Or). Barak even viewed the agreement as circumventing democracy. The term first appears in the letter from Minister of Justice David Libai to the Attorney General expressing dismay with the agreement: ibid 811.

111 Constitution Act 1982 (UK) (n 2).

112 ibid s 38. An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorised by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least 50% of the population of all the provinces.

113 Weill (n 18) 471.

114 Kahana (n 74) 83–90.

115 Bob (n 4) (discussing these opinions).

116 Weill, Rivka, ‘Shouldn't We Seek the People's Consent? On the Nexus Between the Procedures of Adoption and Amendment of Israel's Constitution’ (2007) 10 Mishpat Umimshal [Law and Government] 449 (in Hebrew)Google Scholar; Weill (n 20).

117 Weill (n 21).

118 Unless the system is committed to a foundationalist theory: Weill (n 20).

119 Importation of Frozen Meat Law, 1994 (Israel). Within a week, the Knesset had replaced this law with the Meat and Meat Products Law, 1994 (Israel), which removed the restricted definition of frozen meat.

120 Kahana (n 74) 80.

121 ibid 73–90.

122 Porat (n 38).

123 In Canada, the override clause largely fell into desuetude because of Quebec's abuse of it in the Ford case (Ford v Quebec (Attorney General) [1988] 2 SCR 712). This caused widespread resentment against the override power in the other provinces and at the federal level: Hogg, Peter W and Bushell, Allison A, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)’ (1997) 35 Osgoode Hall Law Journal 75Google Scholar, 83 (‘In practice, section 33 has become relatively unimportant, because of the development of a political climate of resistance to its use’).

124 Bob (n 4).

125 Barak Medina, ‘The Law Recognizes the Constitution’, Ha'aretz, 15 April 2012, http://www.haaretz.co.il/opinions/1.1685748.

126 Slattery, Brian, ‘Canadian Charter of Rights and Freedoms: Override Clauses under Section 33 – Whether Subject to Judicial Review under Section 1’ (1983) 61 Canadian Bar Review 391Google Scholar; Arbess, Daniel J, ‘Limitations on Legislative Override under the Canadian Charter of Rights and Freedom: A Matter of Balancing Values’ (1983) 21 Osgoode Hall Law Journal 113Google Scholar.

127 Gardbaum (n 7) 97–128, 222–44.

128 For the Canadian process of adopting the Charter, see Peter W Hogg, Constitutional Law of Canada, Vol 1 (5th edn, Carswell 2007) 65–68. The Charter amendment process also requires dualist consent: Constitution Act 1982 (UK) (n 2) s 38.

129 For the United States’ popular sovereignty model, see Bruce Ackerman, We the People: Foundations (The Belknap Press of Harvard University Press 1991). Some leading American scholars argue that the US should consider adopting the override mechanism to incorporate softer forms of judicial review: eg, Perry, Michael J, ‘Protecting Human Rights in a Democracy: What Role for the Courts?’ (2003) 38 Wake Forest Law Review 635Google Scholar; Tushnet (n 7). See also Weiler, Paul C, ‘Rights and Judges in a Democracy: A New Canadian Version’ (1984) 18 University of Michigan Journal of Law Reform 51, 84–85Google Scholar (writing that a congressional override may be suitable for the US and may in fact be used more prudently in a presidential, rather than a parliamentary, system).

130 This was in fact proposed by the government in the draft of Basic Law: Legislation, 2012 (Israel) (n 6).

131 Weill (n 21).