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PDF FormatPrior to the Charter’s adoption, no law in Canada could be challenged on the basis that it violated a human right. The Charter, however, gave the judiciary the authority to strike down laws which infringed on fundamental rights. Now courts must first determine whether a law entails a prima facie violation of basic rights, and then decide whether the infringement can nevertheless be upheld as a “reasonable limit,” which is “demonstrably justified” in a “free and democratic society.”85 As a result, courts in Canada find themselves sifting through complex socioeconomic evidence and weighing the pros and cons on a range of broad policy issues, to determine whether proposed limitations on rights are justified. Canadian federal and provincial legislatures must now conform to constitutional norms as interpreted by the judiciary, or find their legislative product nullified.86 A typical example is the recent legislation enacted by Canada’s federal government limiting the advertising of tobacco products. After weighing civil rights against state objectives, the Supreme Court found that the law constituted an unjustified limitation on freedom of expression as protected by the Charter of Rights, and was therefore null and void.87
This complex act of balancing rights with societal benefits has changed the very nature of what Canadian courts do. The chief justice of Canada’s Supreme Court, Antonio Lamer, discussed this transformation in an article in the Israel Law Review:
Courts are now routinely receiving a good deal of what can be referred to as social fact evidence.... Particularly where the question is whether certain laws are justified in a free and democratic society, debate in the Courts sometimes resembles proceedings before a House committee in that the benefits and burdens of the legislation and its alternatives have to be weighed in light of the best available information about the needs of society and the nature of the problem addressed.88
In short, courts that exercise judicial review over actual laws quickly come to resemble their country’s legislatures, both in the kinds of issues they discuss and in the arguments they bring to bear.
The court’s new role in Canada raises a number of problems. Canadian judges inevitably must make many of their decisions on the basis of arguments for which their judicial training has given them no special preparation. In cases such as the limitation on tobacco advertising, justices must draw conclusions about the link between advertising and tobacco use, the physical harm caused by smoking, and related matters which are frequently the subject of scientific dispute. Moreover, courts must weigh the trade-offs between the benefits of a particular statute and the harm it does to the values of Canada as a “free and democratic” society. The inevitable result is that the courts are deluged with a mass of (often highly technical) expert testimony which they must sift through in order to weigh and consider policy costs, benefits and alternatives—largely duplicating the vast efforts already undertaken by the innumerable committees and subcommittees supporting the executive and legislative branches. In Israel, the burden placed upon an already overextended judiciary—and upon the taxpayer as well—would be enormous, and possibly untenable.
Yet it is precisely this set of challenges which Aharon Barak looks forward to when envisioning the impact of judicial review on Israel’s courts. In the Bank Mizrahi case, President Barak quoted the above passage from Chief Justice Lamer’s article describing the effects of the Charter of Rights on Canada’s judicial system, and continued: “As the courts and lawyers in Canada are up to this task, surely we too will be capable.”89 Capable and, no doubt, eager.
Once judicial review of legislation becomes part of day-to-day Israeli life, it is not hard to imagine what kind of issues the Barak Court will face, or how it will handle them. As in Canada, any Israeli law found to infringe upon one of the enumerated guaranteed rights will have to pass a justificatory test in order to survive. It will have to be “enacted for a proper purpose,” “befit the values of the State of Israel,” and impair the right “to an extent no greater than is required.”90 Each element of this test provides ample room for judicial interpretation. While Canadian judges must grapple with the relatively simple task of determining the meaning of a “free and democratic society,” President Barak and his Supreme Court colleagues will face the more daunting task of squaring their decisions with Israel’s values as a “Jewish and democratic state.”91 Israel’s judiciary will, to an even greater extent than it does today, be called upon to make politically controversial decisions that will no less than define the character of the state and its society. Given Barak’s unique interpretive approach and judicial worldview, the decisions emerging from his court are likely to neutralize the “Jewish” side of the equation, while causing ever-greater alienation of those “unenlightened” segments of the population who hold such values dear.
The implications of Barak’s philosophy have already begun to play themselves out. His doctrine that “the world is filled with law” has resulted, through its translation into the court’s zealous guardianship of the “rule of law,” in the whittling away of the doctrines of standing and justiciability. The consequence is that the Supreme Court’s docket has been swelled with the most critical public issues being addressed today.
Other parts of Barak’s legal worldview, such as the severe imbalance between the state’s “Jewish” and “democratic” aspects, have yet to manifest themselves in their full enormity. While later Barak writings pay tribute to the word “Jewish” in the Basic Laws’ purpose provision, it is evident from his colossal corpus of decisions and articles that “democratic” ideas dominate his thought. Even his modified approach to Jewish values is severely mitigated by his assertion that irreconcilable conflicts between “Jewish” and “democratic” values must be resolved by reference to the “enlightened community,” which in turn refers us to “the aggregate of values which form the image of the modern Israeli”92—and not just any modern Israeli, but those with membership in that section of the public “whose values are universal,” which is part of the “family of enlightened nations.” Barak leaves little room for doubt about the identity of the “enlightened community” with the system of liberal democratic beliefs.
Aharon Barak’s approach to the balancing of values can therefore be reduced to the following: Faced with a conflict of values, a judge must try to find a synthesis between democratic and Jewish systems (preferably through abstraction of the latter), and if this fails, democratic values prevail. The automatic result, of course, is that the more such cases are adjudicated by a Barak-inspired court, the less “Jewish” Israel is likely to become, and the harder it will be to distinguish it from venerated secular democracies such as Canada and the United States.
Barak’s coupling of judicial activism with the creative abstraction of Jewish values will ultimately be joined by a third element, the regular review of Knesset statutes. This power, which stands at the core of the “constitutional revolution,” has become an integral part of Barak’s judicial philosophy, if not yet of the Supreme Court’s activities. But gaps between Barak’s theory and the court’s practice tend to be measured in time, and it is likely that Barak’s court will come to match his writings—and sooner rather than later. Skeptics on this point would do well to realize that between Barak’s 1977 realization that standing laws must be liberalized, and the series of rulings in the mid-1980s doing precisely that, stood less than a decade—and then he was a junior justice, not the court’s president.
Israel has long prided itself on having a “professional” judiciary spared from the complications wrought by politicization.93 But recent developments have eroded this tradition, and make its utter dissolution seem inevitable. Rejoicing over the new Basic Laws, Aharon Barak waves his “nonconventional” weapon of judicial review which, together with a hefty conventional arsenal of wide-open standing and justiciability rules, threatens the Israeli public with an unprecedented centralization of power among a handful of like-minded judges. As President Barak himself has written, there is a zone where “the decision is made according to the personal worldview of the judge…” and “his outlook on society, law, judging and life is what directs his path.”94 Israelis may have good cause for concern in discovering that this subjective zone—and with it the politicization of the court—is likely to grow apace, an inevitable result of the Barak approach.
Hillel Neuer is a Graduate Fellow at The Shalem Center in Jerusalem.
Notes
1. Though both Basic Law: Human Dignity and Liberty (Sefer Hahukim, p. 1391; amended in Sefer Hahukim, p. 1454) and Basic Law: Freedom of Occupation (Sefer Hahukim, p. 1454) are “substantively” entrenched—meaning their human rights guarantees are protected from any later Knesset statutes which violate the Basic Laws’ substantive criteria—Basic Law: Human Dignity and Liberty is not formally entrenched, meaning it can be amended without the need for a special Knesset majority. See David Kretzmer, “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?” Israel Law Review 26(1992), p. 242. Whether the Basic Laws have inherent constitutional (“supra-legal”) status depends on whether the Knesset has authority to sit as a Constituent Assembly. See Aharon Barak, “The Constitutional Revolution: Protected Human Rights,” Mishpat Umimshal 1 (1992/3), p. 9. In the past, the Supreme Court refused to treat a Basic Law as inherently superior to other laws. See Bergman v. Minister of Finance (HCJ 98/69), in Decisions of the Israel Supreme Court, vol. 23, section 1, p. 693; Bergman v. Minister of Finance (HCJ 231/73), in Decisions, vol. 27, section 2, p. 785; Kani’el v. Minister of Justice (HCJ 198/72), in Decisions, vol. 27, section 1, p. 794; Ressler v. Elections Commission (HCJ 60/77), in Decisions, vol. 31, section 2, p. 556; Mi’ari v. Knesset Speaker (HCJ 761/86), in Decisions, vol. 42, section 4, p. 868; Tnu’at L’or v. Knesset Speaker (HCJ 142/89), in Decisions, vol. 44, section 3, p. 529. Recently, however, the Supreme Court concluded that Basic Laws do have “supra-legal” status, with President Barak relying, in part, on his finding that the public considers the Knesset authorized to draft a constitution. See United Mizrahi Bank v. Migdal Cooperative Village (CA 6821/93, 1908/94, 3363/94), in Decisions, vol. 49, section 4, p. 221 (an English summary can be found in Justice, vol.10, Sept. 1996, p. 22).
2. See the landmark case of Kol Ha’am v. Minister of the Interior (HCJ 73/53), in Decisions, vol. 7, section 1, p. 871.
3. Aharon Barak, “Judicial Philosophy and Judicial Activism,” in Iyunei Mishpat 17 (1992), p. 497; cf. Ressler v. Minister of Defense (HCJ 910/86), in Decisions, vol. 42, section 2, p. 477.
4. See, for example, The Jerusalem Post, August 18, 1995. See also chapter 35 of Yechi’el Gutman’s book The Attorney-General Versus the Government (Jerusalem: Edanim Publishers, Yediot Aharonot edition, 1981). [Hebrew]
5. Attorney-General (and former Camp David negotiator) Elyakim Rubinstein, lecture at Hebrew University Law Faculty, May 7, 1997. For a detailed description of Barak’s influential role throughout the negotiations see Gutman, The Attorney-General, pp. 335-342.
6. Barak, “Judicial Philosophy,” p. 485.
7. Barak, “Judicial Philosophy,” pp. 477 and 485.
8. Barak, “Judicial Philosophy,” p. 491.
9. See Barak, “Judicial Philosophy,” p. 491; see also Barzilai v. State of Israel (HCJ 428/86), in Decisions, vol. 40, section 3, p. 505.
10. Barak, “Judicial Philosophy,” p. 487; Barzilai, p. 505.
11. Segal v. Minister of the Interior (HCJ 217/80), in Decisions, vol. 34, section 4, p. 441.
12. Protocol of the Knesset Law Committee meeting, Oct. 22, 1996.
13. Barak, “Judicial Philosophy,” p. 488.
14. The concepts are interrelated inter alia in that if, on a given issue, the court grants standing to no party, that issue becomes, de facto at least, non-justiciable. (By contrast, courts may find an issue justiciable, yet dismiss a particular petitioner for his lack of a sufficient interest in the case.)
15. Ressler v. Minister of Defense (HCJ 910/86), p. 441.
16. In addition to serving as Israel’s highest appellate court, the Supreme Court also serves as a court of first and last instance for anyone with a grievance against the government. When sitting in this capacity, it is referred to as the High Court of Justice.
17. Becker v. Minister of Defense (HCJ 40/70), in Decisions, vol. 24, section 1, p. 238.
18. Ressler v. Minister of Defense (HCJ 448/81), in Decisions, vol. 36, section 1, p. 89.
19. The court found in part that the Defense Minister did in fact have authority to issue the deferrals, and that this discretion was not exercised unreasonably.
20. Ressler (HCJ 910/86), p. 474; see also Barak, “Judicial Philosophy,” p. 485.
21. Barak, “Judicial Philosophy,” pp. 477 and 485. Similar words were previously expressed in the 1986 Ressler decision, pp. 477-478.
22. Barak, “Judicial Philosophy,” p.486.
23. Barak, “Judicial Philosophy,” p.494.
24. Barak, “Judicial Philosophy,” p.495.
25. Aharon Barak, “On Powers and Values in Israel,” Hapraklit 42:3 (March 1996), p. 447; Barak, “Judicial Philosophy,” p. 496.
26. Barak, “Judicial Philosophy,” p. 496; see also Kach Party v. Knesset Speaker (HCJ 73/85), in Decisions, vol. 39, section 3, p. 158.
27. Barak, “On Powers,” p. 448.
28. In MK Rechavam Ze’evi v. Knesset Speaker (HCJ 6124/95), the former complained that not enough time had been given for Knesset members to examine the maps of the “Oslo II” Interim Agreement. Justice Barak held that the case did not call for the court’s intervention in the Knesset Speaker’s discretion. In MK Hanan Porat v. Knesset Speaker (HCJ 4064/95), an MK tried to force Oslo II to be debated in the Knesset plenum. Justice Barak remarked that unless the democratic fabric was being injured, the court would not intervene in internal Knesset affairs. In Dor-On v. Prime Minister Rabin (HCJ 2456/94), a petitioner wanted the court to declare the invalidity of the Israel-PLO Declaration of Principles, in part because the PLO was still a legally declared terrorist organization. Justice Barak held that the petition was completely of a political character and no legal cause of action was found. In Katz v. Government of Israel (HCJ 1403/91), where the father of an MIA sought a court order instructing the government to adopt measures toward locating his son, Justice Barak found that the nature and substance of the subject was one of great sensitivity, that the government must be allowed room to maneuver in issues of foreign policy and security.
29. Barak, “Judicial Philosophy,” p. 491.
30. Barak, “Judicial Philosophy,” p. 487. That courts enjoy public confidence is vital for Barak: “Courts have neither purse nor sword. They can operate only within an atmosphere of trust and confidence.” See Barak, “Balancing Rights and Principles,” in Chartering Human Rights (collection of papers from the 1992 Canada-Israel Law Conference), p. 22.
31. Barak, “Judicial Philosophy,” p. 486.
32. Sarid v. Knesset Speaker (HCJ 652/81), in Decisions, vol. 36, section 2, p. 197; Barzilai v. Government of Israel (HCJ 428/86), in Decisions, vol. 40, section 3, p. 505; Zherzhevsky v. Prime Minister (HCJ 1635/90), in Decisions, vol. 45, section 1, p. 749.
33. The Jerusalem Post, December 28, 1992.
34. Cf. Isaiah 6:3.
35. In the hands of a different practitioner, such a maximalist view of law’s domain could lead to the intrusion of law into the personal sphere, into the realm of decisions generally left to the individual. However, Barak’s approach has generally been directed toward limiting government in favor of the individual, and not vice versa.
36. Ariel Rosen-Zvi, “Culture of Law,” Iyunei Mishpat 17 (1992), p. 701 [Hebrew]. In this Israel may again be following the Canadian path: See Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson, 1992).
37. See note 16 above.
38. Rosen-Zvi, “Culture of Law,” p. 701.
39. See Yitzhak Zamir, “Court and Politics in Israel,” Public Law (Winter 1991), p. 535.
40. Eisenberg v. Minister of Housing (HCJ 6163/92), in Decisions, vol. 47, section 2, p. 229.
41. Suissa v. Attorney-General (HCJ 7074/93), in Decisions, vol. 48, section 2, p. 749.
42. Amitai v. Yitzhak Rabin (HCJ 4267/93), in Decisions, vol. 47, section 5, p. 441.
43. Basic Law: Human Dignity and Liberty, section 1A. A parallel clause appears in Basic Law: Freedom of Occupation, section 4. For an analysis of the purpose clause see Aharon Barak, Interpretation in the Law (volume 3 of Constitutional Interpretation; Tel Aviv: Nevo Publishing, 1994), p. 347. See also Menachem Elon, “The Values of a Jewish and Democratic State in the Light of Israel’s New Civil Rights Law,” in Chartering Human Rights, p. 20. President Barak argues that the clause provides a central purpose (protection of the right) and a subsidiary purpose (entrenchment of values). With respect, it seems to me that one purpose need not be considered inferior to the other: Protection of the right could be regarded as the immediate purpose, and entrenchment of values the long-term purpose (which is accomplished through the means of protecting the right).
44. Kol Ha’am v. Minister of the Interior (HCJ 73/53), in Decisions, vol. 7, section 1. Cf. Aharon Barak, “The Constitutional Revolution: Protected Human Rights,” in Mishpat U’mimshal 1 (1992-1993), p. 30.
45.Menachem Elon, “The Basic Laws: Their Enactment, Interpretation and Expectations,” in Mehkarei Mishpat 12:2, p. 258.
46. See Zherzhevsky, p. 828.
47. See Aharon Barak, “Foundations of Law Act and Moreshet Yisrael,” in Shnaton Hamishpat Ha’ivri 13 (5747 [1987]), p. 279. See also Hendels v. Bank Kupat Am (Rehearing of Civil Appeal 13/80), Decisions, vol. 35, section 2, p. 797.
48. See Menachem Elon, “Constitutional Values of the State of Israel as a Jewish and Democratic State in Light of Basic Law: Human Dignity and Liberty,” in Iyunei Mishpat 17 (5753 [1993]), pp. 667-668. Cf. also Elon, “The Values,” pp.26-27; and Elon, “The Basic Laws,” pp. 254, 258.
49. Barak, “The Constitutional Revolution,” p. 30.
50. The lecture was subsequently published as an article. See Barak, “Constitutional Revolution,” p. 30.
51.Barak, “The Constitutional Revolution,” p. 30.
52. Elon, “Constitutional Values,” p. 686.
53. Cf. Elon, “The Values,” p. 20. See also Elon, “Constitutional Values,” p. 686.
54. Elon, “The Values,” p. 29. Emphasis in original.
55. Barak, Interpretation in Law, p. 331.
56. Barak, Interpretation in Law, p. 330.
57. Barak, Interpretation in Law, p. 331.
58. Barak, Interpretation in Law, p. 334.
59. Barak, Interpretation in Law, p. 339.
60. Barak, Interpretation in Law, p. 330.
61. Barak, Interpretation in Law, p. 330.
62. See Aharon Barak, Judicial Discretion, trans. Yadin Kaufmann (New Haven: Yale University Press, 1989), pp. 36-41; Barak, “Human Dignity,” p.286; Barak, Interpretation in Law, p. 231 and p. 345; Aharon Barak, “Basic Law: Freedom of Occupation,” Mishpat Umimshal 2 (1994), p. 208. The phrase in Hebrew, hatzibur hana’or, has been translated by some as the “enlightened public.” My choice of “enlightened community” matches the translation used in the English-language list of publications on the curriculum vitae of President Barak.
63. Barak, “Basic Law: Freedom of Occupation,” p. 208.
64. Barak, Interpretation in Law, p.231.
65. Barak, Interpretation in Law, p. 232.
66. Barak, Interpretation in Law, p. 232.
67. Barak, Interpretation in Law, p. 234.
68. Barak, Interpretation in Law, p. 234.
69.Barak, Interpretation in Law, p. 235.
70. Barak, Interpretation in Law, p. 235. This last phrase is adopted by President Barak from the words of Justice Vitkon in Riesenfeld v. Yakovson (CA 337/62), in Decisions, vol. 17, section 2, p. 1026.
71. Barak, Interpretation in Law, p.235. Cf. Suissa v. Attorney General, p. 781, where President Barak insists it is only a metaphor.
72. Aharon Barak, “Human Dignity as a Constitutional Right,” Hapraklit 41 (1994), p. 287.
73. Dan Avnon, “The Enlightened Community: Jewish and Democratic or Liberal and Democratic?” Mishpat Umimshal 3 (1995), p. 419.
74. Although President Barak is quick to cite precedents for his employment of the “enlightened community,” a close reading of precisely those cases reveals the Barak approach to be a visible departure from the way courts once used this concept. In the 1968 Shalit v. Minister of the Interior ruling (HCJ 58/68; in Decisions, vol. 23, section 2, p. 477), a majority of the court held that the child of a Jewish Israeli father and a non-Jewish mother could be registered as a “Jew” under the Population Registry Law. Justice Moshe Landau, in a dissenting opinion, argued that the state’s lawbook offered no explicit answers. “Without any statutory indication,” asked Landau, “where else can a judge find guidance when matters involving beliefs and opinions come before him?” Shalit, p. 520.
Landau’s answer referred to the ruling in the Zim v. Maziar case (CA 461/62; in Decisions, vol. 17, section 2, p. 1335),which suggested that in such situations, the court must never “adjudicate according to the personal outlook of the judge,” but instead “faithfully interpret the views of the enlightened public amongst which he lives.” Justice Landau went on to argue that social consensus was a sine qua non for making use of this test: “Since we have not yet come to a consensus of opinion, not even among a decisive majority of our community, on these fundamental questions, [the judge] can only bring forth dissonances, and the depressing result is that the court, as it were, abandons its proper place above the disputes which divide the public, and the judges themselves descend into the arena.” Landau’s conclusion was that the court “must resist with all the force at our disposal being dragged along this path.” The judge must not try to resolve controversial cases through recourse to the enlightened community, because in such cases the enlightened community is itself divided. In Barak’s outlook, however, the “enlightened community” is by definition never divided, even on a publicly controversial issue; a judge need only divine what its views are. To Barak, the enlightened community is precisely that vehicle through which the court must resolve such arguments.
75. An exception was section 4 of Basic Law: The Knesset. See note 81 below.
76. Tnu’at L’or v. Knesset Speaker (HCJ 142/89), in Decisions, vol. 44, section 3, p. 529.
77. Cf., for example, former Supreme Court President Moshe Landau, “Giving Israel a Constitution through the Supreme Court’s Decisions,” Mishpat Umimshal 3:2 (July 1996), for a forceful statement of the position that the Basic Laws did not give the court such authority.
78. Barak, “The Constitutional Revolution,” p. 34.
79. United Mizrahi Bank v. Migdal Cooperative Village (CA 6821/93, 1908/94, 3363/94).
80. United Mizrahi Bank, p. 352.
81. In the past there existed only a few isolated instances where the Israeli Supreme Court exercised authority to invalidate statutes, and then only by invoking strictly formalistic grounds, i.e., lack of a required Knesset majority. The first time this occurred was in Bergman v. Minister of Finance (HCJ 98/69; in Decisions, vol. 23, section 1, p. 693), where a party-financing bill (which favored established parties) was challenged as a violation of the “equal elections” clause in section 4 of Basic Law: The Knesset, with that clause only allowing derogations if they were passed by a majority of Knesset members. Justice Landau found that the statute indeed violated the equality guarantee and, as it was passed without the required majority, was therefore not to be given effect. Highlighting the attorney-general’s choice not to contest the court’s power to declare a statute invalid, Justice Landau stressed that his decision could not not be taken as establishing any constitutional precedent.
82. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. An important distinction exists, however, between the manner in which the two countries adopted their respective constitutional rights. Canada’s adoption of the Charter was preceded by lengthy national debate, politically approved by nine out of ten provinces, and finally received with great fanfare. In contrast, Israel’s two new Basic Laws were passed with most members of Knesset not even in attendance, by undistinguished votes of 32-21 and 23-0.
83. Concerning the method of balancing rights with justifiable state objectives, compare Section 8 of the Basic Law: Human Dignity and Liberty with Section 1 of the Canadian Charter. Concerning the power of the legislature to enact a law which overrides a guaranteed right, by inserting an explicit clause such that the law applies notwithstanding the guaranteed right, compare Section 8 of the Basic Law: Freedom of Occupation with Section 33 of the Canadian Charter. For a survey of Israeli reliance on the Canadian experience, and on the similarities in legal culture and history between Canada and Israel, see Hillel Neuer, “Why Israeli Judges Read Canadian Cases,” Canadian Lawyer Magazine, May 1995. See also Barak, “Balancing Rights and Principles.”
84. In Barak’s 1994 textbook Constitutional Interpretation (see note 43 above) the chapters dealing with the new Basic Laws—the most systematic, detailed, and authoritative academic analysis of the subject—cite and discuss so many different Canadian decisions, extensively and often exclusively, that the author virtually imports the whole of Canadian Charter law into Israel.
85. Canadian Charter, Section 1.
86. Theoretically, by resorting to the Section 33 “notwithstanding clause,” both the provincial and federal legislatures have the ultimate power to override a number of the basic rights guaranteed in the Canadian Charter. Yet such resort is generally considered illegitimate, and rarely used. The exception to this attitude is found in the French-speaking province of Quebec, the only province not to assent to the 1982 constitutional package which included the Charter. Quebec has resorted to the Section 33 override to safeguard French-only language laws from the Charter’s freedom of expression guarantee. In addition, for several years following the Charter’s adoption the provincial government—in a symbolic effort to demonstrate its political rejection of the 1982 constitutional deal—systematically enacted the override in every Quebec statute. It is interesting to note that in Israel, too, the sector of the population which has made prominent use of the override—the religious (e.g., in ensuring kosher-only meat imports)—also felt alienated from their country’s “constitutional revolution.” Evidently, such alienation, either among Canada’s Quיbecois or Israel’s religious, appears to produce a sense that the illegitimacy lies not in using the override, but in the constitution itself. To be sure, if Canada’s constitution remains tainted or even doomed by the significant absence of Quebec’s assent, Israel’s bold attempts toward constitutional reform will no doubt suffer the same fate unless any such major legislative or judicial advances are preceded by achieving consensus with the religious.
87. RJR-MacDonald Inc. v. Canada (Attorney General) (1995), Dominion Law Reports, vol. 127, section 4, p. 1; Supreme Court Reports [Canada], 1995, vol. 3, p. 199.
88. Antonio Lamer, “Canada’s Legal Revolution,” Israel Law Review 28 (1994), pp. 582-583, cited in United Mizrahi Bank, pp. 440-441.
89. United Mizrahi Bank, p. 441.
90. See section 8 of Basic Law: Human Dignity and Liberty, and section 4 of Basic Law: Freedom of Occupation.
91. See section 1A of Basic Law: Human Dignity and Liberty, and section 2 of Basic Law: Freedom of Occupation.
92. Barak, “Basic Law: Freedom of Occupation,” p. 208.
93. Reviewing Martin Edelman’s Court, Politics and Culture in Israel, Adam Dodek sums up the author’s view of the traditional situation: “In Israel, the Supreme Court is widely viewed as the guardian of the ‘rule of law.’ [T]his has led to the Court’s insulation from political pressure, as evidenced in the non-political nature of the appointments process, which emphasizes technical legal expertise over questions of immediate political relevance. Unlike the United States, Israeli Supreme Court judges are almost completely divorced from partisan politics. They are drawn from the ranks of the practicing bar, the academy, or the bench, rather than from the political world, as has often been the case in the United States. Public opinion reflects the belief that the members of the Israeli Supreme Court are independent, objective, and impartial decisionmakers in an otherwise politically partisan governmental system.” Harvard International Law Journal 36, pp. 572-573.
94. Barak, “Judicial Philosophy,” p. 484; Barak, “Constitutional Law Without a Constitution,” in Shimon Shetreet, ed., The Role of Courts in Society (Boston: Martinus Nijhoff, 1988), p. 464; Barak, “Balancing Rights and Principles,” p. 23.
