Israel Canada flags.
(photo credit: JPOST STAFF)
MK Ayelet Shaked wants Israel to adopt Canada’s override clause. Israelis should know that Canadians hate their override clause. And “hate” is a very strong word for Canadians.
The bill being proposed by MK Shaked would amend the Basic Law: Human Dignity and Freedom to insert an “override clause” to allow the Knesset to override decisions of the Supreme Court relating to that law.
Her proposal is modeled on the override contained in the Basic Law: Freedom of Occupation. That override was added to the Basic Law: Freedom of Occupation to allow the Knesset to override a Supreme Court Israel decision regarding importing non-kosher meat. The Basic Law: Freedom of Occupation was enacted originally without the override in 1992 together with the Basic Law: Human Dignity and Freedom. In 1994, the Knesset re-enacted the Basic Law: Freedom of Occupation to include an override clause, inspired by the Canadian override clause in Canada’s Charter of Rights and Freedoms, enacted in 1982.
As a matter of constitutional structure, the override is a crucial part of the Canadian constitutional model.
However, as part of constitutional practice, the Canadian override has become virtually a dead letter. Here’s why.
The Canadian override has a checkered history. To begin, it was added to Canada’s Charter of Rights and Freedoms at the last minute in November 1981. The proposed Charter had become wildly popular with Canadians by this time. Between October 1980 and February 1981, a special parliamentary committee held public hearings to consider the draft Charter (with no override). Several hundred Canadians sent in written comments and nearly a hundred Canadians traveled to Ottawa from across Canada to testify in person. Canadians watched their elected representatives and their fellow citizens debate the proposed rights in the Charter because for the first time such proceedings were televised. The Charter became known as “The People’s Package.” All the political parties in the Canadian Parliament supported it.
But there was a hitch. Most of the Canadian provinces opposed the Charter and the prime minister’s package of constitutional reforms because they feared it would take away some of their powers. The Supreme Court of Canada ruled that the constitutional reforms could not proceed without substantial provincial support. The provinces forced the override clause on a reluctant prime minister as part of their price for supporting his entire package of constitutional reforms. The deal was done and Canadians got their Charter of Rights and Freedoms in 1982.
The override clause, however, quickly flamed out. In 1988, the government of Quebec used it to override a decision of the Supreme Court of Canada that had found unconstitutional a Quebec law prohibiting the use of any language other than French in certain commercial signs.
The “Quebec Sign Law” had become strongly unpopular in English Canada, representing three quarters of the country’s population.
When the Quebec government then used the clause to override the minority English group’s right to freedom of expression, the override clause became extremely unpopular in nine of the 10 Canadian provinces.
The override clause became a political taboo in Canada. Since 1988, the mere mention by politicians that they would consider using it has caused public uproar and political backlash.
So unpopular is the Canadian override that in January 2006 when then-Canadian prime minister Paul Martin was tanking in the polls during an election campaign against Stephen Harper, Martin made a pledge during a nationally-televised debate to enact legislation to prohibit the federal government from ever using the override.
Harper would go on to win the election despite Martin’s desperate act to invoke the constitutional bogeyman of the override clause.
Israelis will have to judge for themselves whether they want to enact an override clause in the Basic Law: Human Dignity and Freedom. But proponents of that law should not base their arguments on the Canadian override. It has not proven particularly successful or popular in Canada.
The author is one of the founders of the University of Ottawa’s Public Law Group and the author of the book The Canadian Constitution. He is currently a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem where he is teaching a course at the Faculty of Law on the Supreme Court of Canada and Canadian Constitutionalism.