Seven retired Supreme Court judges, including former chief justice Beverley McLachlin, have signed a public statement urging Israel to rethink proposed legal changes – including a Canadian-style override clause that could nullify rulings of its Supreme Court.
The public statement describes the override and other proposals as a threat to democracy, human rights and judicial independence in Israel.
Canada and Israel have had regular exchanges and visits between their Supreme Courts for more than 20 years. The 100-plus signatories include a former provincial attorney-general, two former chief justices of provinces and several former law deans.
In interviews, the retired Supreme Court judges expressed dismay that Israeli government officials have pointed to the “Canadian model” – the override known as the notwithstanding clause, in the Charter of Rights and Freedoms – in explaining the rationale for giving that country’s legislators the power to dismiss court rulings.
“We have become a convenient excuse to undermine the court through the override,” said Rosalie Abella, a Supreme Court member from 2004 to 2021.
The federal government has never invoked it, but its use, or threats of its use, have been increasing of late, especially in Ontario and Quebec.
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Louis LeBel, who served on the Supreme Court from 2000 to 2014, says Israel’s proposed override is much broader than Canada’s override clause in the Charter.
“It seems to say that the legislature and government may overturn any decision by the courts.”
In Canada, by contrast, the override applies to certain rights, but not others. And its use in a particular case must be renewed every five years.
Another signatory, Adam Dodek, a former law clerk at the Israeli Supreme Court, said institutional structures cannot simply be transplanted from one political environment to another.
“The French have a word for the environment of wine growing – terroir – and I think that equally applies to constitutional transplants,” said Prof. Dodek, a former law dean, and current professor, at the University of Ottawa.
“So the override is not some tasty Canadian ‘good’ like maple syrup that can or should be exported and applied to local fare in another country like Israel.”
The statement, written by University of Toronto academics Lorraine Weinrib and Ernest Weinrib, accuses Israel of forgetting the lessons of the Nazis’ mass murder of six million Jews. Israeli proposals would take the country backward, it says, away from “systems of rights that protect human dignity,” established “in the aftermath of the Holocaust.”
Signatory Frank Iacobucci, who served on the Supreme Court from 1991 to 2004, said in an interview that Canada’s 1982 Charter of Rights and Freedoms had been a response to the Holocaust from its founding prime minister, Pierre Trudeau.
Mr. Iacobucci described himself as an admirer of Israeli judges, especially former chief justice Aharon Barak, and the Israeli Supreme Court. He believes the aim of the proposed override is to make the Knesset, Israel’s national legislature, sovereign over the courts.
“The Knesset will always have the last word,” he said in an interview. “That doesn’t mean that it’s wrong, but it is going back on what I believe human rights and freedom mean in a progressive democracy.” He added: “Who runs parliament? Parliaments are run by majorities.”
Ms. Abella echoed that view.
Without the checks and balances of an independent court, she said, “what you have is not democracy, it’s populism. And when you have populism in Israel, in a generation that remembers the Holocaust, it’s an outrage to history.”
Ms. Abella is a child of Holocaust survivors and was born in a displaced-persons camp in Germany in 1946.
Under a proposal from Israel’s right-wing government led by Prime Minister Benjamin Netanyahu, legislators could override Supreme Court decisions, in a simple majority vote of the Knesset, Israel’s parliament. Israel’s Justice Minister Yariv Levin says it will allow the “government to govern” and “judges to judge.”
Another change would give the Knesset greater control over who is appointed to the Supreme Court. In the current system, seven votes are needed on a nine-member selection panel; that would be reduced to five of nine and the government would supply five members on the panel, up from four. (In Canada, the Prime Minister and cabinet appoint Supreme Court judges.)
The Israeli Supreme Court’s power to review the administrative actions of state bodies would also be reduced.
Israel has no formal constitutional bill of rights, but its Basic Laws, including two enacted in 1992 to protect human dignity and freedoms, were given constitutional status by the Supreme Court in 1995.
That meant the court can strike down laws the judges found to violate the Basic Laws. Courts are also authorized to review state actions to determine whether they are reasonable. (Canada’s courts have a similar role.)
Last month, a court ordered the dismissal from cabinet of Aryeh Deri, an ally of the Prime Minister, over his multiple criminal convictions. The court said his presence in cabinet was “unreasonable in the extreme.” Mr. Netanyahu complied and fired him.
Israeli law professor Amnon Reichman did his doctorate in law at the University of Toronto. In an interview, he said Israel’s “constitutional moment” is comparable in its importance to the referendums on independence held in Quebec.
But the debate is different, said Prof. Reichman, a faculty member at Haifa University and a visiting professor at Berkeley Law in California.
“In Israel, the debate is: Are we sliding away toward autocratic regimes? … the right reference is Hungary, and Turkey, and Poland, and Russia, to an extent.”
He added: “The façade is democratic, but it risks losing its democratic soul.”
He said he is not offended by Canadians asserting that Israel’s government is forgetting the lessons of the Holocaust.
“It’s an idea of a dialogue, and care, that we appreciate.” He added that the Canadian statement “carries some weight, definitely.”
The other retired Supreme Court justices who signed the public statement are Marie Deschamps, Marshall Rothstein and Morris Fish.
The Israeli embassy in Ottawa did not return a request for comment.
Ms. McLachlin, Canada’s longest-serving chief justice, is currently a part-time judge on Hong Kong’s Court of Final Appeal, and critics say her presence provides a veneer of international approval to an increasingly oppressive system, under China’s control.
Ms. McLachlin could not be reached for comment. She told The Globe and Mail last March that the Court of Final Appeal remained independent, as perhaps the last strong democratic institution to survive in Hong Kong.
Sean Fine