The unique little necessary evil of our Constitution may have found a new home in Israel
. They don’t tend to argue that Canada is wretched and dictatorial, but they note that Canada has plenty of checks and balances that Israel doesn’t: a full-on Constitution guarded by strong amending formulas, federalism with co-equal regional governments and a bicameral national legislature. Within Israel, they say, a strongly independent Supreme Court is the only safeguard minorities and individuals really have.
You have to dig a little to find the case for an Israeli notwithstanding clause: Eugene Kontorovich, a law professor at George Mason University,last month for the influential Kohelet think-tank. Kontorovich paints a picture — not a totally unfamiliar one! — of a judiciary that has acted with increasing impunity since 1992:
The court “gradually eliminated all restrictions on justiciability and standing, allowing it to rule on any issues in public life whenever it chooses, without the constraint of lower-court proceedings or fact-finding. It employed the doctrine of ‘reasonableness’ as a free-standing basis to block government action, including the government’s makeup.
One of the reasons a notwithstanding clause became attractive to Israeli right-wingers is that the selection of judges there was allowed, through questionable constitutional design, to become detached from either the executive or the legislature. Under the Basic Law, judges are appointed to the Supreme Court by a committee that has nine members, and these include three existing Supreme Court judges and two members of the Israeli bar.
A candidate for the Supreme Court must get seven of these nine votes, which means the Supreme Court judges, by themselves, have an unbreakable veto over appointments. It’s not for me to say whether Kontorovich’s picture of an aggressive, militant judiciary is accurate, but this is certainly the kind of judicial-appointment system you’d create if that was your goal.
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