Juxtaposing Constitution-Making and Constitutional Infringement Mechanisms in Israel and Canada: On the Interplay between Commonlaw Override and Sunset Override

Abstract

This article explores the oft-neglected relationships between constitution-making (including amendment) mechanisms and constitutional infringement mechanisms, by focusing on the override as one of the possible tools to infringe upon the Constitution. Scholars commonly assume that the override or ‘notwithstanding clause’ is a Canadian invention. They further argue that the tool fell into disuse in Canada because Quebec’s exercise of it led to public disdain. Scholars suggest that Israel is the only country to have followed the Canadian example by adopting the override as a transplant to “notwithstand” one constitutional right — freedom of occupation. Although Israeli political branches adopted this tool originally to enable the prohibition on importation of non-Kosher meat to Israel, scholars suggest that the legislature is further considering adopting the tool as a general mechanism applicable to all its Basic Laws, thus enabling the legislature to override all constitutional rights. Israeli right-wing politicians attempt to justify this possible decision by arguing that “what is good for Canada is good enough for Israel.”

This article suggests that there are two types of override: a ‘commonlaw override,’ which is not uniquely Canadian, and a ‘sunset override.’ The commonlaw override evolves in judicial decisions of a given country when the courts require the legislature to explicitly take responsibility for an action. Under the commonlaw override, we may couple together phenomena that are not typically connected, including a means of protecting commonlaw rights, a judicial presumption against delegation of power to administrative agencies, or mechanisms of dealing with procedural or substantive legislative entrenchment. In contrast, the sunset override is a Canadian invention. For the tool to be part of the infringement mechanisms of a country's Constitution, it must be provided for explicitly in that Constitution, and its exercise must be temporary.

This article follows the different possible uses of the commonlaw override. It shows that Israel has vast experience with the commonlaw override that may shed light on Israel's future possible exploitation of the sunset override. The article then shows that Israel has adopted the sunset override following the Canadian example. When the Rabin government adopted the tool as part of an exchange deal with the ultra-Orthodox religious political party Shas, the terms of the deal included Shas' acquiescence to the peace process in exchange for Rabin government's use of the override to protect religious status-quo from judicial intervention. In addition, the Israeli justices played an active and unique role in the birth and formulation of the Israeli override. As has happened with the Canadian Charter, supposedly these circumstances should have made the override illegitimate in Israel. But, this article argues that it is not the political uses of the override that lead to its lack of use. Rather, the determining factor is the override’s compatibility with the constitution-making process in a given country. From a normative perspective, it is easier for the Israeli legislature to override its own prior enactments, even those titled Basic Laws, than it is for the Canadian legislature to override the People's enactment of the Charter. Thus, it is expected that Israel might more freely deploy the sunset override were it to become a general mechanism embodied in the Basic Laws, while, in contrast, the sunset override has fallen into disuse in Canada.

Keywords: override power, notwithstanding clause, transplants, constitution-making, constitutional amendment, sunset override, commonlaw override, desuetude, popular sovereignty, parliamentary sovereignty, non-delegation doctrine, constitutional statutes, infringement of rights, restriction of rights