Legal affairs: Left to his own devices

Justice Minister Daniel Friedmann caused a stir this week when his opposition to a certain compromise clause of the Knesset proposal for a constitution was leaked.

October 25, 2007 22:47
4 minute read.
Legal affairs: Left to his own devices

friedmann 224.88 AJ. (photo credit: Ariel Jerozolimski [file])


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If nothing else, the reports of Justice Minister Daniel Friedmann's opposition to a crucial provision that may be included in the Knesset Law Committee's proposal for a comprehensive constitution has focused attention on the committee's deliberations for the first time since they began nine months ago. In aiming to legislate a comprehensive written constitution, the committee, under Chairman Menachem Ben-Sasson (Kadima) is trying to do what no law committee has managed to do since the state was created. It is precisely because of this, and because the gap between secular and religious Israelis seems to have widened over the years, that few people until now have believed Ben-Sasson stood a chance and, therefore, that there was much to get excited about. Earlier this week, however, Friedmann caused a minor sensation when he was quoted as saying that he opposed a provision - which Ben-Sasson hopes to include in the constitution - granting immunity from judicial review to legislation dealing with religious matters. This would mean that even if a "religious" law flagrantly violated the human rights of various minority communities - or even those of the secular majority - the High Court of Justice would not be able to nullify it. The controversial provision was originally proposed by the Israel Democracy Institute (IDI), in a document entitled "Constitution by Consent," which contains its proposal for a comprehensive constitution, the fruit of more than five years of research and deliberation. It constitutes an attempt to create a comprehensive constitution based on a compromise between the secular and religious Jewish communities and the Israeli-Arab community. According to ,i>Ha'aretz, Friedmann said that if the constitution included compromises like this, better that it not be legislated at all. "If they want to achieve a comprehensive constitution by removing the High Court of Justice from matters of church and state, I oppose the constitution," he was quoted as saying. Friedmann did not intend to trigger a public debate over the Law Committee's deliberations, or initiate a confrontation with Ben-Sasson, at least at this point in time. He reportedly expressed his views in a private conversation which was later leaked. Once out in the open, however, his opinion has resonated. Israel Bar chairman Yori Geiron wrote to Friedmann to express his support. "It is inconceivable," he wrote, "that the constitution will preserve the ongoing harm to basic rights in matters of religion and freedom from religion without allowing the High Court to intervene. This is a dangerous initiative, and I oppose it." Despite the criticism by Friedmann and Geiron, the provision has not actually been discussed by the committee, let alone voted on and approved. Nevertheless, it already exists in the constitution proposed by the IDI, and Ben-Sasson has adopted it wholeheartedly. The provision states that the High Court may not review legislation dealing with: conversion; the prerogatives of the religious courts to conduct marriages and divorces according to religious law; the Jewish character of Shabbat and holidays; observance of Kashrut in state institutions; or the granting of Israeli citizenship to the relatives of those eligible for aliya. IDI president Arik Carmon blasted Friedmann's opposition to the provision. "Friedmann is trying to position himself at the extreme end of the liberal camp," he told The Jerusalem Post. "[Though] there are [even] many liberals who understand that without a compromise there will be no constitution at all." Carmon said Friedmann was "cut off" from Israeli reality. "It's not a question of its being 'nice' to have a constitution," he continued. "We have no choice. Without it, there will be an existential threat to democracy." Ben-Sasson preferred not to respond to Friedmann's criticism. "These issues must be clarified and discussed in the committee," he told the Post. "We haven't reached the end of the process. We are only about one-quarter or one-third along the way. In order to continue, we must find a way to compromise. We can't have a constitution without it." Ben-Sasson added that, despite the progress made so far, the committee will face far more serious controversies in the days ahead than the one that has already begun on the question of the status of religious legislation. Currently, the law committee is discussing the second section of the constitution on the basic principles that shape Israel's system of government. Soon, it will begin deliberating the third section, which sets down the basic rights that every individual must enjoy, including freedom of religion, freedom from religion and free speech. This is the section that Ben-Sasson expects to be the most difficult. "I have no reason to be optimistic about the success of these deliberations unless we work 12-15 hours a week on the constitution," he said. He also explained that the committee may bring two alternatives to the plenum for approval, which gives him a certain degree of flexibility, and makes it easier for the committee to go forward. "Until now," he said, "there hasn't been a single topic we could not resolve. But the more difficult issues are still ahead of us." Still, he is cautious about his chances of success. "I'm no dummy," he said. "I hope we can reach agreement. If we can't, I'll try to pass as many individual basic laws as I can."

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