On Override Law, Israel Should Not Take Advice from Canadian Justice Rosalie Abella

There has not been a lot of talk lately about the Jewish Home’s proposed High Court Override Bill, legislation that would allow the government to override High Court rulings.  After suggesting that failure to pass the bill would provoke a coalition crisis, Naftali Bennett has toned down the volume over the bill recently.  The Globe and Mail, a national newspaper in Canada, has a theory as to why.  In an article published today by Sean Fine, Mr. Fine suggests that Canadian Supreme Court Justice Rosalie Abella’s speech at Hebrew U in April warning of dangers to Israeli democracy provided some of the impetus for the Israeli government to shelve the legislation.  (Canada’s left-leaning newspapers love reporting on any topic which suggests that Israel is, or is becoming, less democratic).

It is important to understand Justice Abella’s ideology before considering her statements.  Whether she will admit it or not, Justice Abella is an ideological judge who consistently sides with the “left” in her decisions.  Unlike some other judges of the Supreme Court in Canada, who do not decide cases along purely ideological lines, Justice Abella’s votes are almost completely predictable.  In her time on the court, I can count on one hand the number of times I have agreed with her decisions on cases which have a political element to them.

Just recently, Justice Abella supported a decision to allow Law Societies in BC and Ontario, arms of the “state”, to deny accreditation to a proposed Christian law school which would have met all of the substantive criteria to be recognized.  However, the school, which is private and not state-run, also required, like many religious organizations, that its students agree to a Covenant which included abstaining from all sex that was not between a husband and wife. This one clause provided the justification for the state to deny accreditation on the basis that it excluded LGBT individuals from a religious Christian school.  For possibly the first time ever, Canada’s Charter of Rights became a sword against a minority religious group instead of the shield against State interference it was meant to be.

Understanding Justice Abella’s ideology is necessary to understand why she did not speak out against the High Court during the years when it not only became a threat to Israeli democracy, but undermined democracy completely under the stewardship of Aharon Barak.  Under Barak, the court read-in its own “constitution” to Israel, when none existed, based on “Basic Laws”, some of which that were passed with fewer than 60 votes (less than ½ of the Knesset).  Barak famously believed that “everything is justiciable”, essentially handing himself and other unelected judges the keys to the law-making throne in Israel.  The High Court acted with no check on its power, created its own principles of “constitutional interpretation”, and undermined Israel’s legitimate security needs, setting limitations from an Ivory Tower against the democratically elected leaders and military commanders on the ground.

In short, Barak’s reign over the court was radical – more far-reaching than the court in any other Western democracy, including Canada.  Where was Justice Abella when this was all happening?  Where were the speeches?  Where were the warnings about how the court was undermining democracy?  To the contrary, I am sure Justice Abella supported that development with open arms.

In her speech at Hebrew U, Justice Abella reportedly stated that, “To me, when an independent judiciary is under siege, democracy is under siege, and when democracy is under siege, a country’s soul is being held hostage.”  Does this mean Canada’s soul is under siege as well?  As I have also pointed out in previous blog posts, the Charter of Rights and Freedoms in Canada has its own override clause, “the notwithstanding clause”.  It is fair to say the Charter never would have been adopted without the inclusion of this clause, which allows the federal or provincial governments to pass laws notwithstanding their contravention of the Charter’s terms.  While Mr. Fine devotes one brief sentence in the article noting this, it is a significant point which Justice Abella understandably would want to minimize, since it completely undermines her argument.

It is important that we not let the Left prevent this legislation from passing based on hyperbolic Doomsday language.  For example, there is nothing undemocratic about allowing the executive almost unfettered discretion to carry out foreign and security policy – in both Canada and the US, this is the case.  There is nothing undemocratic about rules for “standing” before the court – in the Canada and the US, this is the case.  Indeed, when “everything is justiciable”, the flip side is that the Knesset has zero final authority in the end of the day.  This obviously cannot be proper in a democracy.

In short, Israel should not take Justice Abella’s advice, which comes from a narrow, ideological political viewpoint with blinders as to the complete story of the High Court in the last few decades.  While Justice Abella may be respected in Canada, her interests in this respect are not aligned with the interests of the Israeli people, but with the people of the Israeli left.

If Israel’s coalition finally implements an override clause, the High Court has only itself to blame.  Mr. Barak led an era of arrogance and usurped power, which was not bestowed on him and the High Court by anyone.  To an overreach of such an unprecedented nature, the natural reaction is push-back by the Knesset.  The Knesset is simply trying to restore the balance that should have existed from the beginning.

Thinking about the long term, there are many reasons why a 61-member override, the number of MKs currently proposed that would be needed, could create unintended negative consequences.  Although more art than science, it seems to me that 70 is the right number:  essentially a “coalition plus” amount of Knesset members (or in the future a broader coalition) should be able to nullify the court’s decisions.  This would represent a broad consensus that would necessary include some centrist votes and would not be overly onerous so as be practically impossible to ever implement.

Whatever reason the Override Bill has been put on the back-burner, this needs to change.  It is absolutely critical for restoring the proper interplay between the High Court and the Knesset.  Far from undermining democracy, it is a pro-democratic rebalancing.  It is time for the Kulanu faction, and the entire government, to recognize this and support the Override Bill immediately.