The Canadian Override: Constitutional Model orBête Noireof Constitutional Politics?

Abstract

Israeli proponents of the enactment of a legislative override often invoke Canada as a model that Israel should follow. Their proposals would allow the Knesset to ‘override’ a decision of the Supreme Court of Israel that strikes down a law on the ground that it violates a Basic Law. Proponents of an Israeli override seek recourse to various types of argument to support their position. This article focuses on one such argument: the use of Canada as a model to support the Israeli argument for enacting an override. It argues that in order to evaluate both the value of adopting the Canadian override and the likelihood of its transplantation to Israel being successful, one needs to acquire a deep understanding of its operation in Canada. The article contains four sections in addition to the introduction. Section 2 briefly explains what ‘the Canadian override’ is and how it came to be. Section 3 analyses the positive attraction of the Canadian override as a constitutional model, and identifies three different models of the Canadian override. Section 4 focuses on the Canadian experience with its override. It explains why Canadians have come to view it in negative terms – the ‘bête noireof Canadian constitutional politics’– because of the manner in which it was adopted and the circumstances in which it was first used. Section 5 concludes with some thoughts on legal transplants, legitimacy and lessons for Israel from the Canadian experience.

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