IDI Vice President Professor Mordechai Kremnitzer weighs in on the challenges faced by Israel's High Court of Justice, in an article that was published at the end of the third millennium as part of a collaboration between IDI and Walla!, a popular Israeli website.
It is exceedingly difficult to assess Israel's human rights record from the past decade through quantitative analysis. Comparing the past 10 years with previous periods in Israeli history is also a difficult and deeply problematic task.
However, it is certainly possible to consider the current state of the institution charged with the preservation of human rights in Israel - the Supreme Court. The Supreme Court has developed and institutionalized the protection of human rights through precedent-setting rulings over many years, which serve as a de facto, albeit weak, substitute for a bill of rights in Israel.
In the early 1990s, the Knesset made a considerable contribution to the protection of human rights by legislating two important Basic Laws—Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Following the enactment of these laws, the decisions handed down by the Supreme Court significantly strengthened the protection of human rights in Israel, particularly through judicial review of primary legislation of the Knesset. The Supreme Court recently demonstrated, once again, its commitment to the defense of human rights, and in particular the rights of the weakest segments of Israeli society who are most in need of protection, when it rejected legislation that would have allowed the privatization of Israel's prisons.
One troubling development for human rights in Israel during the past decade has been the attack on the courts, especially the Supreme Court, and the associated drop in the public's faith in the court. (According to a survey conducted by the Israel Democracy Institute, the public's confidence in the court fell from 70% in 2003 to 50% in 2008, although that figure rebounded somewhat in 2009). The attacks reached their peak in a series of measures initiated by former justice minister, Prof. Daniel Friedmann, which posed a bona fide threat to the Court's ability to continue fulfilling its critical function.
Friedmann proposed restricting the court's ability to rule when the petitioner is a public organization ("standing") and limiting the issues on which the court could be rule ("justiciabilty"). He also introduced a number of reforms whose common denominator was the undermining of the Supreme Court President's authority and the independence of the court system in general. Friedmann's proposals signified a deathblow to the Supreme Court's annulment of a Knesset law that allowed the Knesset to reinstate legislation deemed unconstitutional by the Supreme Court (the "Override Clause"). Similarly, during the previous Knesset, a proposal was raised to form a constitutional court composed of political figures and religious dayanim (judges), which would be the only body vested with the authority to override Knesset legislation.
Nevertheless, it could be said that the decade ended on a relatively positive note, particularly since it appeared that when the current justice minister assumed his post, challenges to the Supreme Court abated; even if differences of opinion remain, they fall within the bounds of normative work relations.
In conclusion, beyond the clear assertion that the status of the Supreme Court must be strengthened, there is a strong case to return to the national agenda the establishment of a genuine, permanent solution to the question of the scope of human rights in Israel: the enactment of a constitution. This measure, which would include a full bill of rights, would substantially improve the current situation by firmly establishing measures to defend and balance human rights. It would also provide the courts with the authority to intervene in any instance in which these rights are violated.
Prof. Mordechai Kremnitzer is Vice President of the Israel Democracy Institute and a professor of criminal law at Hebrew University.