Thursday, November 5, 2009

Israel's Constitutional Discussions: Towards an Israeli Version of the Canadian "Notwithstanding Clause"

Canada's constitution contains a section known as the "notwithstanding clause:" section 33 of the Charter of Rights and Freedoms. It reads as follows:

"33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4)."

In a nutshell, what this means is that the federal government or a provincial legislature can choose to ignore, or overrule the decision of a court if that court declares that a certain piece of legislation is contrary to the constitution and should be "struck down." Basically, it gives elected officials a way to go ahead with a policy decision even if unelected judges decide that this policy violates fundamental, constitutional rights. It is a type of legislation that may be unique anywhere in the world.

The notwithstanding clause has been used only rarely, and in one of the most (in)famous uses, was when the government of Quebec decided to invoke section 33 so as not to have to comply with a Supreme Court ruling that declared Quebec's Language laws (laws that give French predominance over any other language) were unconstitutional. This use is not the only controversy that surrounds section 33, it is only likely the most visible one.

It seems, however, that Canada may not be alone in having this type of legislation for much longer. Israel is apparently considering something similar.

Israel does not have a written Constitution like Canada does, but rather has a series of "basic laws." Nonetheless, there is an effort afoot to develop a constitution for Israel and this interesting website has a lot of very interesting information on the subject. Indeed, there is even a page dedicated to constitutional discussions between Israeli officials and Canadian ones. This effort, however, is a slow one and faces many political obstacles such that the current Israeli minister of justice, Neeman, commented that he thinks the only way to introduce such a constitution will be gradually.

This leads to Neeman's stated intention to introduce an Israeli notwithstanding clause. The purpose of this proposed bill would be to allow the Supreme court to nullify a law it deems unconstitutional (called "judicial review") and to then give the Israeli parliament the power to ignore the Supreme Court's decision so long as 70 members (out of 120 in the Israeli Parliament) agreed.

In other words, if the Israeli parliament were to ignore a supreme court decision, nearly 60% of its members would have to support such an action. Theoretically, this would make it very difficult for the Knesset to overturn a Supreme Court decision. Compare this to Canada where a simple majority is needed to apply section 33. This means any Legislature where there is a Parliamentary majority could overturn a ruling by the Supreme Court of Canada. The reason it does not happen more often is because invoking section 33 is an acknowledgement that basic rights are being violated and so only the most extreme policy or political imperatives justify such an action.

The Israeli situation is very different than the Canadian one. Israel is a country at war, that faces threats both internal and external and has a very fractious political landscape. The Israeli government is also almost always guaranteed to be a minority or a coalition government which gives smaller parties and special interests within the country a great deal of power. The Israeli Supreme Court now stands as one of the most respected in the world for the challenging and wide ranging legal questions it is charged with resolving--and does resolve well--often on very short notice. This bill proposes taking power from this court and placed in the hands of Parliamentarians. These Parliamentarians, however, could find themselves in a position where they must cave to the interests of small parties in order to preserve their political lives, or to pander to a constituency that reacts not based on a desire to adhere to the law but rather to meet a specific policy objective. There should be great concern that the Israeli "notwithstanding clause" could see significant abuse.

If Israel were to take such a gamble on a law that could shift power from well trained, expert jurists and place it into the hands of Parliamentarians whose interests are not always 'justice' then at the very least, raise the number of Parliamentarians needed to invoke the law from 70 to something closer to 85 (just over 70% of a 120 seat house). Such an option should be difficult for parliamentarians to use and should underscore the seriousness of such a decision.

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