Democracy in its deepest sense is not majority rule: The majority does not need democracy in order to impose its opinion. Contrary to the claims by many members of today’s ruling Knesset coalition, the deepest essence of democracy is the protection of minority rights. It is this protection that the “Override Clause” seeks to demolish?
The vague-sounding term “Override Clause” actually refers to the elimination of one of the key foundations of democracy: Constitutional protection of human rights regardless of the political constellation of a given government. The Supreme Court, which currently defends democracy through its authority and function as a High Court of Justice, will lose its strength if the Override Clause is adopted. It will no longer be able to fill this impartial function. If the High Court of Justice disqualifies decisions and rules that are contrary to the Basic Laws and violates human rights, the Knesset will simply be able to reenact them.
In Israel, the Basic Laws serve as a poor substitute for a constitution, which we lack, and whose function in many countries is to provide protection against the tyranny of the majority and against substantive damage to the democratic regime. If the Override Clause is more than political spin and reflects a true intention, and if we find ourselves tomorrow in a reality in which it is possible to disqualify decisions of the High Court of Justice grounded in the Basic Laws, we should be very worried. The practical meaning of denying the High Court of Justice the right to determine on issues of human rights is that the Knesset will simply be able to ignore these rights.
If the State cuts supplementary income benefits, the Supreme Court will no longer be able to defend these benefits and disqualify the law, on the grounds that it is contrary to the Basic Law of Human Dignity and Liberty. Our right to vote at accessible polling stations, adapted for our physical disabilities, will be in danger because the Knesset may decide that this is too expensive – and the Court will be powerless to object. The Knesset will be able to enact laws that discriminate against and exclude women, and women will be unable to petition the High Court of Justice and demanding the disqualification of laws that violate equality under the terms of the Basic Law for Human Dignity and Liberty. Members of the LGBTQ community may face the same situation: the Knesset will relatively easily be able to thwart the community’s struggle for equal rights due to narrow considerations regarding the maintenance of the government coalition. Arab citizens of Israel will certainly face this danger, given that they are already vulnerable in almost all areas of life.
And what about ACRI? We will not even be able to protest against these attacks in the name of freedom of expression. Because if the government, which naturally controls the Knesset, does not want to hear criticism, it will be empowered act against us in ways that the High Court of Justice will be powerless to curtail.
It is important to recall that a parliamentary majority is a transient concept. One day the party I voted for is in power, and tomorrow power will rest with a party I oppose. Membership of the majority or the minority can also be a function of our physical or financial condition, for example. None of us is immune to illness or accidents. At any time, any one of us could find ourselves moving from the healthy majority to the minority that needs help. It is the Basic Laws and the Supreme Court that ensure that our rights are maintained even when we are on the weak side of the power differential. The Overrule Clause will deprive the Supreme Court of its authority and deny civil society this important protection.
There is no democracy without human rights. There is no democracy without checks and balances. There is no democracy without protection against the tyranny of the majority. There is no democracy without minority rights. The Overrule Clause destroys all these assets. If we wish to maintain our democracy, we must do everything in our power to prevent the passage of the Overrule Clause.
The author is an attorney at the Association for Civil Rights in Israel.
Edited version of this article was published in Yediot Acharonot on April 22, 2018
