Joshua Z. Rokach

False constitutional equivalence

Over the past week, upheaval against the judiciary bills has only grown. In the US, two prominent friends of Israel have shown, in pragmatic terms, the extent of the coming disaster.  Thomas Friedman and Michael Bloomberg have taken to the oped pages of the  New York Times to sound political and economic alarms, respectively. The Prime Minister and his supporters have downplayed the problem. In one “Don’t Worry, Be Happy” statement, officials said that implementation will keep the economy strong (despite decline in the shekel’s value since the proposals became public).  The Prime Minister downplays the sweep of his program.  In an English language interview on CNN, he said that authorizing a majority of the Knesset to override Supreme Court decisions emulates Canadian law.  That means that, since everyone regards Canada as a healthy democracy, the change would not damage Israel’s.

Of course, Jake Tapper, the host at CNN, neither a lawyer nor a historian, had to let the matter lie.  However, serious-minded people with the time to look into the matter would find the analogy misplaced.  The argument disregards the applicable provision in the Canadian Constitution (the “Notwithstanding Clause”) and the context in which the clause came about. Indeed, those circumstances led to another provision which no sensible policymaker would endorse in the 21st Century. Similar pressures – the urgent need for a constitution and therefore, compromise –  led to odious US Constitution provisions that the Civil War had to eradicate.

The proposal before the Knesset would permit a majority to prevent judicial review of any law.   To take two examples from the news,  it would allow the Government to nullify the Supreme Court’s decision that disqualified the leader of Shas from the cabinet and enable the Prime Minister to avoid a criminal conviction and a jail sentence. In contrast, the Notwithstanding Clause, Section 33 of Canada’s Charter of Rights and Freedoms, allows Parliament or provincial legislatures to override specified sections of the Canadian Bill of Rights.  The Federal or provincial governments could not tamper with qualifications to hold office or interfere in specific court cases.  Nor could Section 33 allow public officials to engage in potential conflicts of interest.

In addition, the Department of Justice of Canada explains that the provision applies prospectively only.  Presumably, legislation could not overturn the results in past cases.The Canadian Supreme Court has never clarified retroactivity  because the Federal Government never invoked the clause and the question did not arise in the five times provinces did so over the past 40 years.

Finally, as others have pointed out, the Canadian override lasts for five years. Renewal for five additional years requires specific legislation.  The Knesset bill contain no limits.

Allowing legislative override of civil rights has no place in a democracy. The Canadian Justice Department website states that no democratic constitution has such a provision. However, given the context, Prime Minister Pierre Eliott Trudeau really had no choice.  Israel does.

The Canadian Constitution, with its Charter of Rights and Freedoms, stands as the crowning achievement in Prime Minister Trudeau’s vision for a Just Society.  Barry L Strayer, Trudeau’s close constitutional adviser, recounts in his book, Canada’s Constitutional Revolution (The University of Alberta Press, 2013) the decades-long struggle and the tradeoffs involved.

Unlike Israel, which gained its independence through a UN Resolution, or the US, which achieved its independence through a revolution, Canada’s came about via an act of Parliament, the British North America Act of 1867.  The law and later amendments granted only semi-autonomy to the Dominion.  Pierre Trudeau and the Liberal Party long sought to give Canada true self-government through its own Constitution and guarantees of individual rights, without the involvement of Britain.  Unrest over Quebec separatism and the defeat of an independence referendum in that province in 1980 lent urgency to the task.

How to go about it remained murky.  Under the British North America Act, the Federal Government had to ask Parliament.  Given that Canada, unlike Israel, has provincial governments, could Trudeau act alone, or did he need consent?  . The written law left out the provinces.  However, customarily, the provinces had equal input.  Trudeau sought unilateral action, but the Canadian Supreme Court and MP’s in Westminster disagreed. While not asking for unanimity, they required substantial agreement.  That gave the provinces leverage.  Rather than agree to giving provinces unlimited power to override the Constitution, or Quebec a blanket veto over amendments to the document,  Trudeau compromised/

He agreed to the limited Notwithstanding Clause.  In addition, he acquiesced in a risky amendment formula.  At least five provinces encompassing 50% of the population  must approve changes.  The US requires three-quarters of state legislatures.  However, in Canada, a province can choose not to abide by an amendment transferring jurisdiction to the national level.  This creates a truly bizarre situation.  Having determined that an issue, for example, tackling climate change, requires a national solution, a province can undermine the will of everyone else by creating a patchwork.

According to Strayer, Trudeau regretted his going along with the Notwithstanding Clause.  Israel will regret the override clause, if it ever sees the light of day.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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