Knesset legal adviser: Overhaul leaves equality, freedom of expression unprotected

The right to freedom of expression and other basic civil rights would all become unprotected should the government’s legislation limiting judicial review be passed into law in its current state, legal adviser to the Knesset Constitution, Law and Justice Committee Attorney Gur Bligh said on Monday.

His comments came amid a debate between Bligh and committee chair MK Simcha Rothman, one of the architects of the bill, over a clause in the legislation stipulating that the High Court of Justice would only be empowered to strike down Knesset laws if the law in question “clearly” violates an order “entrenched” in a Basic Law.

Bligh noted that several fundamental civil rights, such as the right to equality, freedom of expression and others, are not delineated in any of Israel’s quasi-constitutional Basic Laws, but have become inherent facts of Israel’s legal landscape owing to rulings by the High Court. The court derives such rights interpretively from those Basic Laws, he noted, and primarily Basic Law: Human Dignity and Liberty.

Bligh’s comments came just hours before the Knesset plenum was scheduled to vote on the first reading of the first part of the coalition’s far-reaching overhaul of the judicial and legal system, which would give the government complete control over the Judicial Selection Committee and the authority to appoint judges to all courts in Israel, including the Supreme Court. (Legislation needs to pass three Knesset readings to become law.)

“In Israel’s constitutional law… [former Supreme Court president Aharon] Barak’s intermediate model prevails, according to which there is a series of rights including equality and freedom of speech, which the Supreme Court of Justice has derived from Basic Law: Human Dignity and Liberty and which are partially protected due to their close association with human dignity,” Bligh said Monday morning during the latest in a series of heated hearings at the committee.

If the court does not retain the ability to strike down legislation that contravenes such rights “it means that there would be no constitutional protection for basic rights like freedom of speech,” he added.

Rothman responded by insisting that if the High Court is able to strike down legislation based on the argument that the Knesset, at the establishment of the state, did limit its legislative powers through the Basic Laws, it must only be able to do so strictly according to what is explicitly written in those laws.

“That limitation should be explicit,” declared Rothman. “There is no justification for judicial review over something that is not in the Basic Laws. A situation in which the Supreme Court invents Basic Laws for itself, or inserts into the Basic Laws things that were removed from them in order to annul laws, should not be allowed.”

When Bligh asked Rothman whether he thought basic civil rights such as equality and freedom of expression would be protected after the passage of his legislation, the MK claimed that they would enjoy such protections due to basic societal agreements on such issues.

“I don’t think that the legislation excludes the possibility that the High Court can review a case of the violation of freedom of expression,” opined Rothman.

“There are cases which we will all agree on as violations of human dignity, for example if you force people to walk down the street with a bandaid over their mouths so that they can’t speak. Apart from the violation of freedom of speech, there is a violation of human dignity there.”

According to constitutional scholar Dr. Adam Shinar of Reichman University, other fundamental human and civil rights that are not enlisted in the Basic Laws include the right to due process in legal proceedings, freedom of association, and the right to religious liberty.