Revisiting the Constitutional Override: Turning a “Bete Noir” Into a Useful Constitutional Tool

The Canadian “Notwithstanding” or “override” has enjoyed significant scholarly discussion and some name caling: from the “bête noire of Canadian constitutional politics” to “poison pill” (CJ Barak in Israel).
While in Canada the override preserves the provinces / federation balance, in Israel the override is purely a matter of the last word in judicial review: parliament or the Supreme Court.
In 2006 Victoria, Australia enacted an override in its Charter of HR, adding original features such as requiring that override only be made in exceptional circumstances.
The paper provides a first global analysis of overrides including Victoria, and Finland – the longest and, probably the most ignored constitutional override (almost 100 years).
The paper demonstrates the various ways in which an override can be tweaked, making it a potential sophisticated tool of constitutional design. The article also examines proposals for reform, and adds one original proposal for a design feature.