Hands off Israel's constitution

There's no need to tamper with a system that is not broken.

By URIEL LYNN
November 13, 2007 19:31
3 minute read.
Hands off Israel's constitution

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

 
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Justice Minister Daniel Friedmann seems to have a tendency to solve problems which don't need solving. One example is his proposal to enable the Knesset to reinstate laws nullified by the Supreme Court on constitutional grounds. When, during 1990-1992, the Knesset Constitution, Law and Justice Committee prepared the drafts of the Basic Laws: Human Dignity and Freedom and Occupational Freedom there were in-depth deliberations regarding the authority of the courts to nullify regular laws that conflict with the rights incorporated in these Basic Laws. All the members of the Knesset Constitution Committee clearly understood at the time that the Supreme Court must have the critical power of judicial review in order to prevent the Knesset from continuing to enact laws which did not abide by the essential rights as set out in the Basic Laws. Otherwise, it was clear to us that such laws would become meaningless and bereft of their authority. In many cases, Basic Laws and legal regulations exist not only to prevent tyranny of government but also to protect the citizens from their legislative body itself, which might oscillate with the changing moods of the electorate. WE CHOSE to act in accordance with the American system. That is to say, granting the authority for judicial review and critical evaluation to the existing courts system, without establishing a special Constitutional Court. The main reason for this lies in the fact that the appointment of judges in Israel, though not entirely without political influence, is not primarily done according to political preference or party affiliation. Israeli judges are not bound by pressure from interest groups or others, so their judgments are free of external influence as far as is humanly possible. They make their informed decisions based on the facts of the case and in accordance with the highest of traditional, judicial standards in Israel. In this manner, legislation successfully deals with reality in our system. Moreover, the court system, especially the Supreme Court, has earned the public's trust, and it is doubtful that a specially established Constitutional Court would ever attain a similar high level of trust. Since the passing of the two Basic Laws regarding human rights, the court has been required now and then to question the legality of certain regular laws. In 15 years, the courts found it necessary to nullify a regular law only six times. THE KNESSET could always modify or nullify these Basic Laws. Indeed, the Basic Law: Occupational Freedom has been slightly revised without harming its authority, while the Basic Law: Human Dignity and Freedom has never been altered, because the values clearly articulated in it have become integral parts of our judicial system, deeply embedded in our judicial culture and in life in Israel. The Basic Law: Human Dignity and Freedom is not a tamper-proof law, however, the principles it represents and its overall importance have made it one of the primary assets of the entire Israeli value system, and this reality has brought about an awareness, stronger than any formal defense, that this Law is not to be touched. No less important, the Knesset is aware of the power of judicial review, and therefore all legislation is accompanied by legal advisories to withstand judicial criticism and to meet its standards, thus maintaining the basic rights of the individual. It would be wrong to think that the Knesset cannot diminish basic rights. The Knesset can most certainly do so under specific conditions delineated in the Basic Laws themselves in order to serve a vital public interest and in proper proportion in order to achieve this end. TODAY THERE is no problem with the concepts as they were developed by the Knesset, nor with the way the Supreme Court uses its authority. The minister of justice wants to promote a private, personal agenda. If his draft-law is accepted - and I don't believe it will be - it would mean the complete nullification of legislative rights and authority in Israel, and all the talk about completing the constitution would become void. If Friedmann gets his way, it will be a significant step backwards in the legitimate desire to complete constitutional law in Israel. I urge the justice minister to change course and work to promote and protect the Basic Laws and advocate for their supreme status. The writer served in the 12th Knesset as the chairman of the Constitution, Law and Justice Committee.

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