Legal Research

Constitutional Lessons from an Israeli Supreme Court Justice

By Omar Ha-Redeye

_­­I had the opportunity to hear one of the Chief Justices speak at the Israeli Supreme Court today.  He explained some of the basics of the Israeli judicial system, and shared some of the challenges that they currently face.

Unlike some jurisdictions, Israel has had no problem drawing on international law for their domestic discourse.  For example, when developing their position on freedom of expression, they looked to the most robust and liberal legal discourse on the subject and borrowed freely from American case law.

As a Jewish state they also do use some Jewish religious law, although in a more limited fashion.  All family law in Israel is conducted under separate religious courts for their respective adherents.  The Supreme Court is primarily a court of appeal for criminal and civil cases.

But the Israeli Court also acts as a court of first instance for human rights issues.  The history of this structure goes back to the British Mandate, when the British did not want complaints of this nature brought to the lower courts, which were staffed by Arabs and/or Jews, and instead staffed this court by judges brought for short terms from Britain.

Although the British left, the Israelis maintained this structure so that anyone, even a non-citizen, can petition the highest court of the country on issues of human rights.

However, there is no explicit Bill of Rights under the Israeli constitution. In 1992 Israeli passed two significant laws, on Human Dignity and Liberty and Freedom of Occupation, both of which state,

there shall be no violation of (these freedoms) except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required

Israeli courts interpreted these statutes to mean that all laws were subject to these rights, although whether this was the original intent of the drafters is under dispute.

But there were many areas of vagueness and ambiguity in these laws that required statutory interpretation.  In looking at international legislation on this subject, Israel turned to one of the most recent and well-thought out constitutions in the world ? the Canadian Charter of Rights and Freedoms.

But given the nature of human rights issues, the Supreme Court often finds itself in conflict with the Knesset, the Israeli legislature, and even the Israeli public.  About 20% of human rights petitions last year were related to Palestinian people, and the court has at times had to reign in the political branch.  Although this doesn?t make them very popular in Israel at some times, it does emphasize the highly important function that the court plays.

Justices of the Supreme Court quite frequently turn to Canadian decisions for precedent on human rights issues.  The Justice joked that while most of them can read our decisions in English, few Canadians are fluent enough in Hebrew to check their case law to see whether they got out law right or not.

There are, unfortunately, some segments of the legal community in Canada that still do not fully appreciate what the Charter has done, not just for our country, but the international common law world.  Some even complain that it hinders law enforcement when dealing with difficult issues such as national security.

But when countries that face far graver issues are looking to Canada for the appropriate balance between security and human rights, it?s a reminder that the choices and mistakes that we make do have repercussions all around the world.

Full post as published by Slaw.ca on July 19, 2009 (boomark / email).