Canada did it. That is the answer supporters of the incoming government give when asked why they are justified to pass the override bill that presumptive prime minister Benjamin Netanyahu and his future coalition partners have declared they intend to pass when they take office.
Why Canada? Because Ottawa passed an override bill in the 1980s to give its different provinces the ability to protect their individual rights against the federal system. If Canada can do it, these people claim, then so can Israel.
The use of Canada as an example has become extremely popular. One prominent Israeli hi-tech investor wrote a thread about it on Twitter last week to explain why his colleagues were wrong in penning a letter to Netanyahu warning of the damage his incoming government poses to the most important economic sector in Israel.
Changes to Israel’s democratic character, they warned, could inflict irreparable damage on Israel’s economy and deter investors from coming to the Jewish state.
“Harming the courts, as well as peoples’ rights according to sexual orientation, race or gender will present a genuine threat to the glorious hi-tech industry established through hard work in Israel over the last three decades,” the signatories wrote in their letter.
And what was the answer of some people to this concern? Canada.
But what these people fail to recognize is that there is a huge difference between Israel and Canada.
Canada has a constitution; Israel does not. The override bill passed there was instituted to get the different provinces to agree to a single constitution. In other words, it was passed to protect the rights of a province, a minority entity when dealing with the federal system.
In Israel, there is no constitution and there is no real separation between the government and the parliament – the majority coalition controls the Knesset. Therefore, the court’s independence is all the more important since the High Court of Justice is the only separate branch that can ensure the protection of minority and human rights. This is what the incoming coalition wants to change.
This explanation is the exact reason why the override clause does not exist in other democratic systems except for Canada, where it was instituted as a unique compromise for a unique situation – to protect a province’s unique character.
And while the passing of an override bill would not turn Israel into a dictatorship, it would move the country away from being a liberal democracy into one that is more of an authoritarian democracy – where the majority rules over every aspect of life and every decision-making process without checks or balances.
It is not hard to imagine what can happen here, and neither should it be hard to understand that this is a potentially dangerous and tenuous situation for the state and its people.
The argument that some people put forward – that until there is a bill there is no reason to discuss it – is also irresponsible.
The incoming coalition has made no secret of its desire to pass the bill and it is a common objective of all of its member parties, including Likud and the haredim (ultra-Orthodox). They want to ensure that they can do what they want and pass bills that they want even if they trample on peoples’ rights.
This is why the time to speak out against this plan is now – not once it is already being implemented – while there is still an opportunity to change what these politicians want to do.
US defense lawyer Alan Dershowitz, who has been vocally supportive of Netanyahu, understands this, telling The Jerusalem Post in an interview last week that the new government should back off from its override plan.
“The Supreme Court, generally, institutionally is not going to be Left or Right: It is going to apply the law,” Dershowitz said. “Sometimes this helps the Left and sometimes this helps the Right… Be careful what you wish for; you may end up hurting rights and values the Right supports.”
Here is an idea: First, institute a constitution like Canada that protects human rights – and then pass an override bill. Until then, stop comparing Israel to Canada.