To:
Professor Daniel Friedman
Minister of Justice
29 Salah al-Din Street
Jerusalem
Re: Draft bill to repeal the power of the High Court of Justice to revoke unconstitutional laws
We were extremely concerned to hear, via media reports, that you intend to propose a draft bill which would authorize the Knesset to ratify a law that has been deemed unconstitutional by the High Court of Justice due to its contravention of the Basic Laws on human rights.
It is currently within the Court’‘s jurisdiction to rescind a law that contravenes the Basic Laws concerning human rights. The importance of this judicial authority cannot be overstated as it represents a critical means of providing substantive constitutional protection for human rights in Israel. Since the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation in 1992, the human rights that are enshrined in the provisions of these Basic Laws have been granted constitutional protection. For the first time important limits were placed on the power of the government and the Knesset to violate human rights.
Over the last 15 years the Court has shown noticeable restraint (sometimes excessive) in its willingness to consider claims that specific laws are unconstitutional. Only in five instances did it rule that the provisions of certain laws contravene the Basic Laws, and in the majority of these cases this applied to a sole provision of the law.
In addition to which, in some cases the High Court postponed any formal declaration of a law’‘s annulment for an extended period of time to provide the Knesset with an opportunity to amend the law in accordance with constitutional provisions. Over the past few years, the High Court has expanded its utilization of these postponements to include cases of secondary legislation, and even government policies. In addition to which, the Court has also repeatedly acceded to requests to lengthen the period of postponement.
The situation in Canada is not dissimilar to that presented in the media. The Canadian Charter of Rights and Freedoms does indeed include a clause which authorizes the parliament to endorse a law even if it contravenes the Charter. However, firstly, such a resolution must be carried out through legislation and not by virtue of an ad hoc decision; secondly, this resolution has only a 5-year validity, a period that can be extended; thirdly, it is relevant for only some basic rights, as many other rights are fully protected and cannot be infringed in any way. To the best of our knowledge, the Canadian Parliament (as opposed to provincial legislative bodies) has never utilized this authority. The aforementioned clause was the result of preparatory discussions to formulate the constitution, and it is generally acknowledged that this clause should not be put into effect. An additional factor for consideration is that the danger posed by the existence of a such a clause in Canada is less threatening as it exists within a firmly established democratic culture, in which the constitutional structure has become a foundation stone, and the protection of human rights has wide political and moral support. Unfortunately, Israel cannot boast the same moral and cultural natural defenses.
The amendment, that you wish to enshrine in legislation, will render High Court decisions devoid of content, and will empty of all meaning the partial constitutional protections currently afforded to human rights in Israel. This severe consequence will probably worsen in the future as a result of new and unexpected challenges that are liable to threaten human rights and the stability of Israel’‘s democratic regime.
The ongoing criticism that is voiced in the Knesset against the power of the Court to review the constitutionality of the law derives from a basic misunderstanding of the importance and role of a constitution in a democratic regime. A constitution, whose purpose is to protect human rights against the power of the majority, must be insulated against the fickle winds that blow through legislative bodies. The traditional role of the Court, primarily the High Court of Justice, is to protect the constitution and the values and rights enshrined in it from the tyranny of the majority.
In light of the current mood in the Knesset, a realistic fear exists that the Knesset will exploit, wholesale, this new power to annul all High Court rulings which determine that a specific law illegally infringes human rights that are enshrined in Basic Laws. This fear is strengthened tenfold when one considers the complex security and political situation in which Israel is currently embroiled. History teaches us that parliaments tend towards violating human rights in times of crisis. Therefore, it is in situations like these, in particular, that it is important to maintain the balancing power of the judiciary.
Beyond the inherent severity of the proposal itself, one must also consider the effect of the message it transmits, which combined with the multiple calls to curb the power of the judicial system, threaten to undermine human rights protections in Israel. We urgently request that you take no part in this critical blow to the defense of human rights.
Respectfully
Adv. Dan Yakir
last updated : 28/03/07
