Netanyahu gov't planned Override Clause will suppress individual rights - opinion

Whereas one might wish to criticize the process by which judges are selected in Israel, I would respectfully suggest that the system is fundamentally fair.

 THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer (photo credit: YONATAN SINDEL/FLASH90)
THE HIGH Court of Justice has been a paper tiger in everything concerning the Netanyahu bloc’s interests, says the writer
(photo credit: YONATAN SINDEL/FLASH90)

As a retired Canadian attorney from Quebec, I took a particular interest in the article titled “Israel has no constitution” (December 25). In that article, Russell Avraham Shalev makes a number of statements that either require clarification or are simply incorrect.

Shalev correctly points out that Israel has no formal constitution, however, neither does the British Parliament. And yet, the British Parliament has a constitutional tradition which has sustained its judicial practices for centuries. While many of those practices originated in cession of power by the Crown, such as the Magna Carta, no reasonable person today would think that King Charles III is likely to take back that power any time soon.

Hence, for about 900 years, the British Parliament has muddled through quite successfully, most would say, without a formal constitution. And this, principally because of the application of constitutional conventions which were referenced by the British courts on an ongoing basis. There is really no reason to believe that the Israeli judiciary does not draw upon a history and values which are just as genuine.

In the case of Israel, although it has no formal constitution, its judges do have a tradition and system of values which dates back for over 3500 years. This system of traditions and values has served the Jewish people very well and there is no reason to imagine that it will not continue to do so in the Israeli judicial system. Indeed many of the traditions and values of the Jewish judicial system have found their way into the legal systems of many states.

 THE GOVERNMENT is planning on changing Basic Law: The Government, to permit Arye Deri to be a minister. (credit: YOSSI ZAMIR/FLASH90) THE GOVERNMENT is planning on changing Basic Law: The Government, to permit Arye Deri to be a minister. (credit: YOSSI ZAMIR/FLASH90)

The Canadian constitutional system

Shalev also referred to the Canadian constitutional system. While it is true that in 1982, Canada was able to enact the Constitution Act which set forth a significant number of important innovations in Canadian constitutional law, most notably the introduction of the Canadian Charter of Rights and Freedoms, it is incorrect to say that prior to 1982 there was no Canadian constitution. Prior to 1982, what was considered to be the Constitution of Canada was an ordinary Act of the British Parliament, the British North America Act (BNA Act) which set forth the division of powers between the federal and provincial Parliaments in Canada.

And there were a number cases in which individual rights were sustained by the Canadian Supreme Court against the state, even in the absence of a formal constitution. For example, in the famous decision in 1955 of Roncarelli v. Duplessis, the Procureur General of Quebec was condemned by the Supreme Court of Canada to pay damages for abuse of power by the initiation of proceedings against an unfavored minority.

As to the Override Clause in the Canadian Constitution (Section 33 of the Canadian Charter of Rights and Freedoms, known as the Notwithstanding Clause), I respectfully but profoundly disagree with Shalev’s statement that the clause in Canada “was passed to give the provinces, a minority entity, protection from federal power.” 

This statement fundamentally misconstrues the nature of the relationship between the provinces and the federal government. Under the Canadian Constitution, each of the provinces and the federal parliaments is supreme within its own fields of jurisdiction.

INDEED, ALTHOUGH the notwithstanding clause has never, in the 40 years of its existence, ever been used by the Federal Parliament, and only seldom by the majority of the provinces, there is one notable exception. This odious clause has been used in Canadian constitutional legislation mostly, and overwhelmingly by the province of Quebec, in order to restrict individual rights in opposing Quebec’s language laws and other legislation promoting legislation, whose goal and/or result is to remake the social face of the Province.

Far from restricting the rights of the Federal Parliament against the province, most recently, Quebec introduced legislation allowing it to unilaterally amend the Canadian Constitution insofar as Quebec is concerned, without even so much as a whimper from the Canadian Parliament. The use of the Notwithstanding Clause in Canadian constitutional practice has been used in Quebec overwhelmingly to squelch individual rights and freedoms, and most notably restricting the use of the English language in schools, in businesses and most recently before the courts. This has resulted in an exodus of many English-speaking Quebeckers to other provinces and countries.

As a point of comparison to the Israeli situation, Quebec is a province in which the majority francophone population significantly outnumbers (80%) the Anglophone and non-Francophone population (20%). In the case of Quebec, this blatant discrimination against a minority group stands out clearly against the protestations of the majority that they are acting democratically by bending to the will of the majority. In case the reader of this article has missed my point, these percentages almost exactly mirror the majority-minority situation in Israel, and should serve as an early warning as to the consequences of precisely this kind of power.

Israel and the Override Clause

I would respectfully suggest that the introduction of override legislation in Israel will inevitably be used by the Israeli government in power, at any given moment in time, to suppress individual rights. While those who might be happy about such legislation when it is used against others, their happiness will quickly disappear when it is used against themselves. To suggest that the next government could easily change such legislation after the next election, would be to betray the need for an ongoing and predictable constitutional tradition.

Whereas one might wish to criticize the process by which judges are selected in Israel, I would respectfully suggest that the system is fundamentally fair, even though minor changes could be considered. As presently constituted, this system assures an ongoing constitutional tradition which is far removed from the immediate needs of politicians to gratify their basest emotions in order to satisfy their immediate needs and political ambitions.

The writer practiced law in Montreal, as a member of the Barreau de Quebec for 51 years, after which he made aliyah. Over the course of his career, he litigated before the courts of the Province of Quebec and the Federal Courts of Canada, including the Supreme Court of Canada.