Russell Avraham Shalev
Jerusalem Post, Dec. 25, 2022
“Canada has many checks on its Supreme Court, which do not exist in Israel.”
There are many important differences between Israel and Canada. Canucks are currently freezing in their parkas and toques, while Israelis are still in shorts and sandals. Canadians play hockey, while Israelis prefer matkot. Canada has a separation of powers enshrined in a constitution that was adopted through public consultation, while Israel has an all-powerful Supreme Court that serves as an alternative legislature and executive. This lack of checks on the Supreme Court’s powers lies at the root of the cause for judicial reform.
The Jerusalem Post editorial board recently argued that Canada’s override clause is an inappropriate example for Israel, as the latter, unlike Canada, has no constitution. Canada’s override clause was passed to give the provinces, a minority entity, protection from federal power. Meanwhile, in Israel, the Supreme Court stands as the only check against government tyranny. In truth, it is precisely Israel’s lack of constitution that necessitates the override clause. The Supreme Court’s overreach is felt in all fields of Israeli politics, from security, to immigration, foreign affairs, and religion.
Democracies have a host of mechanisms that check all branches of government – legislature, executive and judiciary. Limitations on the court include clear definition of authorities, political control over the appointment of judges and legal advisers, and a doctrine of judicial restraint. The Knesset is in fact already restrained, while the Supreme Court is without institutional checks.
As a generalization, there are two types of democratic systems. In parliamentary systems such as the UK or New Zealand, parliamentary legislation is exempt from judicial review. In constitutional democracies, such as the US, Canada or Germany, the constitution is the supreme law of the land and offending laws can be struck down. Israel belongs to the family of parliamentary democracies. The override clause therefore, is a compromise between repealing judicial review and adopting a constitutional model.
Consider the difference in the constitutional processes between Canada and Israel. Before the adoption of the Canadian Charter of Rights and Freedoms in 1982, legislation could not be struck down. The move from a parliamentary to a constitutional system was a long process that required public consent. … [To read the full article, click here]
