June 5, 2007
Prof. Daniel Friedman
Minister of Justice
Dear Sir,
Subject: The Law for Government Immunity from Intifada Claims
We were astonished to learn of your staff directive to draft a legislative bill for re-enactment of the amendment to the Civil Wrongs (Liability of State) Law. The purpose of restoring this amendment is to once again lock the courthouse doors to Palestinians who wish to pursue claims for compensation for personal and property damage inflicted by Israeli security forces.
As you know, less than six months ago the High Court of Justice, with an expanded panel of nine justices, unanimously struck down the amendment by approving a petition submitted by the Association for Civil Rights in Israel, Hamoked (Center for the Defense of the Individual), and Adalah. The Court ruled that the amendment contradicts the Basic Law: Human Dignity and Liberty by violating fundamental human rights.
It is clear, then, that the re-enactment of the amendment would not suffice on its own; you therefore directed your staff to draft an amendment to the Basic Law itself. At the heart of the matter is the fact that there is no justification for preventing Palestinians from receiving compensation when, at no fault of their own, they sustain injuries caused inadvertently by Israeli security forces, outside the context of a military operation. However, beyond this, an amendment of the Basic Law in order to allow for re-enactment of a law that was struck down by the High Court of Justice on the grounds that it violates human rights, is a dangerous and unprecedented step. Such a step threatens the limited constitutional protection granted today to some of the human rights in the new Basic Laws.
The question of whether it is possible to strike down a Basic Law amendment that violates human rights is a complex legal matter. We sincerely hope that we will not be compelled to put this question to the test.
Sincerely,
Dan Yakir, Atty.
Chief Legal Counsel
