The Canadian Constitution has a clause commonly referred to as the Notwithstanding Clause.


Basically, it allows any federal or provincial government to explicitly state that a legislation will operate despite possibly being in violation of the charter rights listed in the constitution. There is a time-limit of 5 years, but the government involved can renew the legislation every 5 years, thus keeping it in operation.

This clause has been used in the past to allow Quebec to do things that some people object to with regard to language laws and special protection for French. And it is currently in the news in Ontario because the provincial government is using it to advance legislation that failed a court challenge based on charter rights. The wiki article lists these and some other cases.

I have thought since it was enacted that it was very strange to have a built in escape clause, even with the 5 years expires-with-renewal aspect. To me this seems to indicate that I really don't have any rights since a government can at any time simply declare that they are going ahead and explicitly violating them.

Does any other country or government body have a similar rule in their constitution?

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    I'm not aware of a similar example to actually answer your question. Despite the fact that I'm not sure of the inspiration for section 33, for me, it has a Napoleonian ring to it, because it seems somewhat similar to the French justice system where judges cannot declare anything unconstitutional, essentially leaving that power to a specialized body (the Constitutional Council) that is mostly a political body. I'm guessing the Canadian escape clause might have had a similar perspective of allowing the politicians to ultimately decide what's constitutional or not, at least in contested cases. Commented Sep 19, 2018 at 3:35
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    Article that might be of interest to you: academic.oup.com/icon/article/3/4/617/792021 Based on that it looks like section 33 is uniquely Canadian, acting as a brake (but not as complete Napoleonic ban) to judicial [constitutional] activisim. Commented Sep 19, 2018 at 3:46
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    For a review of the recently revised (2008, entered in force in 2010) French system that now allows a posteriori constitutionality review see is.muni.cz/el/1422/jaro2013/MVV2868K/um/… Alas comparisons mostly with other European countries are made there. Commented Sep 19, 2018 at 3:57
  • I rolled back the suggested edit. The protections were not for "French speaking people" but specifically for French. The laws in Quebec require, for example, that all business be conducted in French regardless of how many people in the office are Franco-phones.
    – user21424
    Commented Sep 19, 2018 at 14:06
  • FWIW, I think a lot of the intellectual history of of the notwithstanding clause derives from the historical English law practice and interpreting British statutes in a manner that assumes that they are not in degradation of the common law unless a clear intent to do so has been manifested in the law, often leading to rather implausible readings of statutory language the functioned as a sort of sub silentio form of judicial review (French civil law judicial interpretation did something similar).
    – ohwilleke
    Commented Sep 20, 2018 at 0:07

1 Answer 1


Not a proper analogy answer (which doesn't seem to exist), but framing the Canadian system as an intermediate between the US and European continental ones, and with some partial analogies from Israel and Australia, based on Bader (2016) "Parliamentary Supremacy versus Judicial Supremacy":

‘Judicial review’, what’s in the name? [...] (i) Strong or weak judicial review. In strong constitutional review, courts have the authority to decline to apply a statute or to modify the effect of a statute (to make it conform with individual rights) or, more strongly, to establish that, as a matter of law, a given statute will not be applied (law in effect becomes a dead letter) or even to strike a piece of legislation out of the statute books altogether. In weak judicial review courts may scrutinize legislation but may not, on a constitutional basis, decline to apply it or moderate its application. In the UK, a court declaration of incompatibility with a right of the European Convention on Human Rights does not affect the validity, continuing operation or enforcement and is not binding on the parties. In the Netherlands, in Sweden or even less strongly in New Zealand, courts may not decline, on the basis of the constitution, to apply legislation when it violates constitutional rights, but they may strain to find interpretations that avoid the violation and/or use binding international and European human rights law to do so. Canada, with the introduction of the notwithstanding clause, is clearly an intermediate case. [...]

The establishment of the clause has been a ‘uniquely Canadian development with no equivalent in either international human rights documents or Western democratic human rights declarations'. [...] there are a few later similar clauses such as in Israel 1992 (limited to the right to work) and in Australia in 2006 in the revised Victorian Charter of Human Rights and Responsibilities Act, Section 31.

Alas the paper does not get into more details how the Israeli or Australian law are similar, so you'll have to read them yourself and compare. The 1992 Israeli law mentioned was of brief time span, but it looks like its 1994 Basic Law successor has a similar provision; in Wikipedia's summary

unlike the Basic Law: Human Dignity and Liberty, the Supreme Court can only disqualify laws that contradict this Basic Law if they do not fullfill the requirements of Section 8.

I'm a bit at a loss with the Victoria Charter, because its Wikipedia page doesn't seem to cover the revised version; sections discussed there stop before 31. But the section definitely existed (with that provision) according to a 2015 review, p. 32, which proposed that section to be repealed. Interestingly that review mentions that an overriding law targeting a specfic individual, namely Julian Knight (apparently regarding his parole), was passed in 2014.

Another paper (Harel and Shinar, 2012) however simply pegs the Canadian approach to the weak judicial review bin [their taxonomy only has two bins], and in doing so finds more analogs:

Weak judicial review is a label for diverse systems that have developed alongside, and in contradistinction to, American-style judicial review. It stands for the idea that constitutional limitations can be enforced without according a final, and sometimes exclusive, role to the judiciary. In New Zealand and several states and territories in Australia, it is a legislative mandate that the court interpret any enactment so that it complies with enumerated individual rights—an interpretation the legislature can reject by a subsequent enactment. In the United Kingdom, alongside the interpretive mandate mechanism, the Human Rights Act 1998 (HRA) has instituted “incompatibility declarations”—a process by which a court declares an enactment to be incompatible with constitutional commitments, leaving it to the legislature to amend, repeal, or leave the statute unchanged. A similar position, which combines the interpretive mandate with incompatibility declarations, has been adopted in the Australian Capital Territory’s Human Rights Act of 2004 (ACT HRA) and the Victorian Charter of Human Rights and Responsibilities of 2006 (VCHRR). In Canada, section 33 of the Canadian Charter of Rights and Freedoms allows the legislature, with regard to certain (but not all) Charter rights, to actively override a judicial decision, in what is known as the “notwithstanding clause.” Finally, weak judicial review can take the form of weak remedies. These are remedies that relegate courts to a monitoring role, while leaving the particulars to other branches. Such remedies have been noted with respect to socio-economic rights in the South African Constitution.

Another way to think of weak judicial review is through the lens of temporality. Strong judicial review allows for quite a limited legislative response to court decisions invalidating statutes. Dissatisfied with a judicial ruling, there is very little the legislature can do. In contrast, weak judicial review allows for real-time legislative response to the judicial decision. The legislature, depending on the system, must act either to incorporate the judicial decision (in cases of “incompatibility”) or overrule it (Canada's “notwithstanding clause” or New Zealand's option to enact a new statute overruling a court's interpretation). Thus, weak judicial review has institutionalized the process of legislative responses to judicial decisions, something which is generally lacking in systems characterized by judicial supremacy

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