Israel needs to learn the right lessons from Canada’s legal reforms
Irwin Cotler is an emeritus professor of law at McGill University and a former minister of justice and attorney-general of Canada. He has appeared before both the Supreme Court of Canada and Israeli High Court of Justice on constitutional issues.
This is not to say, as some critics have argued, that this risks the “end of democracy” or the slide into “dictatorship.” At the end of the day – and the mass protests have demonstrated this most compellingly – Israel still has a strong civil society, an elected parliament , a free press, and quasi-constitutional Basic Laws, including the Basic Law on Human Dignity and Liberty.
If the Israeli Override Clause is adopted, at the very least, it should require more than a simple majority of 61 MKs as is currently proposed. A supermajority of at least 70 MKs, or ideally 80, two-thirds of the Knesset, should be required in order for the override to be invoked. The fourth major proposed reform is the rejection of the reasonableness standard of review, which requires government action to be reasonable in nature, and which protects against arbitrary and discriminatory executive action. In Canada, the standard of reasonableness is the primary standard for judicial review – in fact,of Canadian administrative law decisions are made using the standard of reasonableness.
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