The Canadian Charter's Override Clause: Lessons for Israel

Abstract

This article considers the role of legislative override clauses in the Canadian and Israeli rights-protecting systems, which share many institutional features. After providing a detailed account of the adoption of the override clause in the Canadian Charter of Rights and Freedoms, as a compromise between legislative supremacy and final judicial review, the article analyses the distinctive and unexpected political dynamics generated by this compromise, including its effect on the exercise of public power and elections. Although adopted to appease political leaders who opposed the Charter on substantive and institutional grounds, the legislative override has to date worked to legitimate judicial review and bring Canada further into the model of the modern constitutional state. The article then considers the lessons that Israel might learn from this analysis in the light of proposals to adopt an override clause to apply to a wider range of fundamental rights and to operate against Supreme Court judgments.