Israel’s Charter

Over at The Court, there’s an interesting post about the current challenge to the Supreme Court of Israel posed by Olmert’s Attorney-General, who the post paints as a nepotistic, disgruntled academic. I’ve long been interested in the Israeli Supreme Court given its role in a legal system with a largely unwritten constitution, a respect for the rule of law and constant local crises that challenge all that.

The Charter encourages interpreters of Victorian statutes to refer to all of the world’s courts that administer a human rights law:

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

I’m keen to fight the tendency to look at the usual Australian comparators: the UK, NZ, Canada and the US, as well as, sometimes, Ireland, HK and South Africa. But it’s hard to fight that trend, given the difficulty of understanding  non-common-law systems and the language barrier. ECtHR and UNHRC decisions overcome some of that, but they tend to have quite a distance from the coalface of reading laws and applying them in proceedings.

However, the Israeli Supreme Court’s judgments are availalbe in English. And this passage from the post on The Court has caught my eye:

Despite the lack of a formal constitution or bill of rights the Court held that as a democratic state fundamental human rights are part of Israel’s legal order. Legislation must be interpreted in order to give effect to such rights, administrative authorities may not restrict them without clear statutory power and in wielding discretion they must give them adequate weight.

Call me crazy, but isn’t that the interpretation mandate and the two wings of the conduct mandate?:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

And I recall reading somewhere that the Israeli Supreme Court’s human rights jurisprudence was influential on Canada’s development of its reasonable limits clause, which Charter s. 7(2) is based upon.

Now, as I understand things, Israeli constitutional law has moved on with the passage of a basic law on (some) human rights and a declaration of ‘constitutional revolution’ (now that’s what I call activist!) in the 1990s, with the Court taking on a role of invalidating Knesset legislation. But I’m still might curious about how the earlier mandates operated. Alas, I find the search engine on the ISC site quite hard to work. So, here’s a question for readers: can anyone recommend a good (English-language) text on the Israeli Supreme Court’s human rights law, including prior to the revolution? I found this one on Amazon, but it’s hard to judge its quality and lots of law books don’t make it onto the internet titan.

[EDIT: Two updates:(1) Some playing around with the ISC website seems to indicate that the list of English language decisions is, at best, partial. I guess that isn’t suprising, but it does blunt the potential utility of the ISC under Charter s. 32(2).

(2) Richard Posner definitely wouldn’t favour taking account of ISC decisions under Charter s. 32(2)! Here’s an extract from his review of a treatise by Israel’s leading jurist, Aharon Barack:

Barak’s jurisprudence may seem to hold no interest for Americans other than as an illustration of the world’s diversity. But in fact it has important implications for the controversial issue of whether American judges should cite foreign cases as authority. I must explain what I mean by “as authority.” There is no objection to citing a foreign judicial opinion because it contains an insight that bears on the case at hand, just as one might cite a book or an article. But that is different from treating the foreign decision as a “precedent,” in the legal sense of a decision that has weight irrespective of the cogency of its reasoning. Some American judges think that just the fact that a foreign court has decided a case in a certain way is entitled to some weight in deciding a similar American case. So if a foreign supreme court has held that executing juvenile murderers is unconstitutional, its decision, even if not impressively reasoned, is one more twig to place in one of the pans of the scales of justice.

But what we learn from Barak’s book is that some foreign legal systems, even the legal system of a democratic nation that is a close ally of the United States, are so alien to our own system that their decisions ought to be given no weight by our courts. American judges distinguish between how they might vote on a statute if they were legislators and whether the statute is unconstitutional; they might think it a bad statute yet uphold its constitutionality. But in a Barak-dominated court, it would be very difficult to tell whether a judgment of unconstitutionality was anything more than the judges’ opinion that it was a dumb statute, something they would not have voted for if they were legislators. And such an opinion would have no significance at all for the question of constitutionality.

The review is called ‘Enlightened Despot‘. Ouch. But here’s a fairly compelling response.]

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