Political and Civil Rights

Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya delivered a lecture to the Constitution, Law, and Justice Committee on Anchoring Human Rights in a Constitutional Bill of Rights. The lecture formed the basis of the committee meeting on November 8, 2004, and is recorded here, along with comments by meeting participants.

My lecture today is not designed to provide a full explanation of what rights are. It is intended, instead, to suggest several preliminary thoughts on what I would call “Designing the Bill of Rights in the Constitution.” Before we begin the detailed work on the rights, you have an opportunity – as ones who are given more or less carte blanche to write a Bill of Rights – to consider the issue of rights from a birds’-eye view, and to make a few important decisions about the work that lies ahead of you.

I will consider briefly five topics:

1. The list of rights and their classification

1. Establishing the beneficiaries of rights: Should particular rights be granted to “every person,” only to citizens, or only to residents? Should certain rights be granted to corporations? To the unborn? The dead? Should these decisions be made across the board, or right by right?
2. Do constitutional rights apply only to citizen-government relations, or does the establishment of a constitutional right bind people in private transactions and relationships? Classically, if the constitution includes equality and non-discrimination, does it apply to a landlord and prevent him from discriminating in renting out his apartment on the basis of race? And again: should this decision be made for each right?
3. How do we design the rights in the constitution: do we just make a declaration naming them (e.g., “All have the right to acquire property”) or do we give them greater detail in the constitution (e.g. the way it has been done in the Basic Law: Human Dignity and Freedom)? Must the legislature explicitly declare what it does not want to include in the constitution? Should the legislature define the legitimate motives for limiting rights at this constitutional level?
4. Leaving the door open to legislators to limit rights: Several techniques (“back doors”) exist to circumvent constitutional limitations. The high road is the general “Limitation Clause,” which allows the legislator to infringe on a right for a pre-approved purpose, with legislation that befits the values of the State of Israel, and only so long as it is no greater an infringement than necessary. Additional methods of limitation accepted in Israel include “preservation of laws,” a practice by which a new Basic Law cannot be used to strike down legislation already in force when the Basic Law is passed, and which has been applied in various ways; and an “Override clause,” which Israel used with the Basic Law: Human Dignity and Freedom. (Override clauses allow legislation which contradicts a Basic Law to be passed in a limited manner despite the contradiction). We may conceive of still other techniques to limit the areas in which all later legislation shall be subject to Judicial review.

• The right to life, limb, and personal safety
• The right to dignity:
  • The prohibition of torture, humiliation, and cruel punishment
  • The right to a good reputation
  • The prohibition of intrusion into another’s body without consent
  • Honoring the dead
  • The right to die with dignity
  • The right to a minimal existence with dignity
  • The prohibition of slavery, slave-trading, trading in human beings, and forced labor
• The right to freedom (“Liberty consists in the freedom to do everything which injures no one else;”[1] “Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law”).[2]
  • Freedom of expression, press, and information
  • Freedom of movement within the state, leaving it, and entrance and non-deportation from the state.
  • Freedom of demonstration, association, and gathering
  • Freedom of conscience, freedom of religion and tradition, freedom from religion
  • The right to personal freedom (from arrest, prison, or extradition)
  • The right to privacy and to the private domain
  • The right to the development of the personality[3]
  • Freedom of science, research, creation, and art.
  • The right to bear arms
• The right to equality (whose primary interpretation is the prohibition of discrimination of various types).

• The right to citizenship
• The right to participate in governance
  • The right to vote
  • The right to be elected
  • The right of access to institutions of government
• The right to good administration, which includes the right to be heard [i.e. in court], the right to information and the obligation of the administration to give reasons for its decisions, and the right to reparations for damages inflicted by the government.[4]
• The right to seek asylum[5]

• The right to property
• Freedom of occupation
• The right to protect the consumer

• The right to work, to fair wages, and to protection from unemployment
• The right to strike, and to group negotiations
• The right to health
• The right to education
• The right to housing
• The right to social security
• The right to family life
• The right to a healthy environment
• The right to vacation, rest, and recreation
• The rights of special populations: children, the elderly, and persons with disabilities.[6]

• The right to Due Process of Law and not to be subject to retroactive punishment (e.g. to be punished for an act which, when it was committed, was not considered a crime)
• The right to a fair, speedy, and public trial by an independent court
• The right of access to the courts
• The right to be considered innocent until proven guilty
• The right to defense from indictment and to representation by an attorney
• The right to an appropriate punishment
• The right to bail
• The freedom from self-incrimination
• The freedom from “double-jeopardy” (being twice judged or punished for the same crime)
• The right to a trial by jury[7]

[1] Declaration of the Rights of Man and of the Citizen, France, 1789; Article 4

[2] Declaration of the Rights of Man and of the Citizen, France, 1789; Article 5

[3] Proposed Basic Law: Human Rights, 1984

[4] Charter of Fundamental Rights of the European Union (2000), Article 41

[5] Universal Declaration of Human Rights, United Nations (1948); article 14

[6] Charter of Fundamental Rights of the European Union (2000), Articles 24-26

[7] Magna Carta (1215), Article 39; United States Constitution, amendments VI (criminal) and VII (civil).

An examination of many constitutions shows that while there are some rights safeguarded in most modern constitutions, there is also a significant number of differences among various constitutions in their lists of protected rights.

An historical consideration shows that in the past, constitutions focused on those rights related to life, freedom, and property. Even ancient legal systems, including the landmark Magna Carta of 1215, concentrate primarily on these types of rights, and they form the basis of John Locke’s declaration that “No man has the right to infringe on another’s rights to life, liberty, and property.”

There are cultural and value differences in this area. One state may uphold the separation of religion and state as a central principle, while another takes a different route. The question of which rights to include thus brings up Jewish/democratic issues as well. The European Union’s constitution includes in its protection of the right to life an absolute ban on the death penalty; while the Unites States, which is certainly not in the dark ages on human rights, employs the death penalty in many of its states.

The recognition of rights has enjoyed an accelerated development. Many of the rights included on the list before you would not have made it onto a similar list as little as one or two decades ago.

There are many ways to enumerate human rights. One of the enumerations uses the classifications of civil rights, political rights, economic rights, social rights, and rights of due process. It is not always clear which rights belong in which group, and obviously there is not universal agreement on which rights should be recognized by a specific legal system, and to what extent.

The list before you does not presume to be a proposal of rights for inclusion in the Israeli Bill of Rights. It includes rights which have no chance at all of being accepted here [in the Constitutional Committee], and which are not even recommended for Israel, such as the constitutional right to bear arms and the right to a trial by jury.[1] I have noted the sources for those less common rights, and I intend this list to portray the widest possible selection of what are called rights, in order to serve our overall view of the subject.

Think of the list as a menu, and choose the dishes we want to include. We should be aware, though, of the significance of including or omitting a given right. By defining a right, the Knesset ties its own hands in a particular sphere, infringing on its own sovereignty and freedom. Alas, the omission of a right out of fear that it will unduly limit the Knesset does not always solve the problem, and indeed sometimes worsens it. Consider the case of ‘equality,’ and what happened when that term was intentionally left out of the Basic Law: Human Freedom and Dignity. The Court soon read the word back into the law, establishing the rules independently of the legislature. Consider how much the Knesset lost on that one, and how much better it would have been if it could have found a compromise to include it after all, with a limitation clause or some other technique. Others in the committee agreed that much detail is necessary for this reason. Professor Ze’ev Segal of Tel Aviv University asked whether, if the constitution includes 28 rights and leaves out two, the two will speak louder than the 28, or vice versa?

[1] Both of these examples are taken from the United States Constitution

As time passes, more and more rights apply to everyone. There are also some central rights that apply specifically to citizens or to residents, such as the right to vote and be elected. We must consider where to place people like aliens, etc., on each right. Should certain rights be granted to corporations? To the unborn? To the dead? Should these decisions be made across the board, or right by right?

Do constitutional rights apply only to citizen-government relations, or does the establishment of a constitutional right bind people in private transactions and relationships? Classically, if the constitution includes equality and non-discrimination, does it apply to a landlord and prevent him from discriminating in renting out his apartment on the basis of race? And again: should this decision be made for each right? Do we want to make a clear decision, or leave this to the courts to decide? At what levels to we want to define this or not define it? Considers additionally the classic case of freedom of movement. Can a person claim a private right to freedom of movement against ultra-orthodox who want to close streets on the Sabbath?

Do we just make a declaration naming rights (e.g., “All have the right to acquire property”) or do we give them greater detail in the constitution (e.g. the way it has been done in the Basic Law: Human Dignity and Freedom)? Must the legislature explicitly declare what it does not want to include in the constitution? Should the legislature define the legitimate motives for limiting rights at this constitutional level?

Sommer suggested this should not be defined in black & white. Sommer brought up the Basic Law: Human Dignity and Freedom which says: “There shall be no violation of the property of a person (Article 3).” The question immediately arose: does taxation violate this clause? The court has avoided this question, and indeed no one wants the court to decide on details of tax law. Perhaps the constitution, Sommer suggests, should or should have specified – “taxes excepted.” It is not so bad, he said, to reduce the grandiosity of the language to make things a little more nuanced and complex! Rights can also be given, or laws can be drafted, “in accordance with…”

This is a series of things we should think about before we get into the details of each right; we should decide whether or not we want to deal with them right now on a large scale.

Several techniques (“back doors”) exist to circumvent constitutional limitations. The high road is the general “Limitation Clause,” which allows the legislator to infringe on a right for a pre-approved purpose, with legislation that befits the values of the State of Israel, and only so long as it is no greater an infringement than necessary. Additional methods of limitation accepted in Israel include “preservation of laws,” a practice by which a new Basic Law cannot be used to strike down legislation already in force when the Basic Law is passed, and which has been applied in various ways; and an “Override clause,” which Israel used with the Basic Law: Human Dignity and Freedom. (Override clauses allow legislation which contradicts a Basic Law to be passed in a limited manner despite the contradiction). We may conceive of still other techniques to limit the areas in which all later legislation shall be subject to Judicial review.

Professor Ze’ev Segal of Tel Aviv University asked: should an override clause be included in the Human Dignity and Liberty chapter of the constitution? Discussion of the override clause led to a basic agreement between Professor Segal and MK Ravitz that a full constitution could include a trade-off between wide definitions of rights and a broad override clause, in order to allow the details to be worked out over time.

Eliezer Nahir, a regular guest of the Committee, asked whether the state should guarantee rights that it cannot realistically fulfil. MK Avraham Ravitz stressed on the other hand that there are rights that everyone or every citizen should enjoy even if he or she does not fulfil their own responsibilities vis-א-vis the state. No one, he asserted, should ever have their water cut off.

Professor Shimon Shetreet of the Hebrew University talked about the influence of Jewish law on rights; MK Avraham Ravitz and he pointed out the difference of opinion between Justices Menachem Elon and Aharon Barak on this. Elon viewed Jewish law as a real source in his decisions; Barak included it in something he called “Israel’s Traditions,” and assigned it inspirational and moral rather than legal-precedent value.

Professor Ariel Bendor of Haifa University reminded the committee that its charge is to deal with the entire constitution, not simply rights. The constitution, he said, should focus on institutional checks and balances, and should be limited and minimalistic on both that front and on rights – any attempt at an exhaustive text, he suggested, would end up being exclusionary. Bendor preferred to let the majority of the legislature in coming years make its decisions. Important rights, he continued, have been diluted because they are mixed in Basic Laws with less important rights. The Court and the Committee should agree to leave the details of rights to the Knesset’s regular proceedings. He also wondered what happens when guaranteed rights come into conflict.

Professor Bendor objected to many of the rights Dr. Sommer had included in his list, for example, the right to dignity – what is that, he asked? He recommended the constitution include just a few totally basic, untouchable rights, and leave the rest to the Knesset and regular legislation.

Professor Eli Salzberger of Haifa University agreed with Bendor, recommending the committee try for an educational and minimalistic document. He opined that the governmental section should be passed as a slim constitution, adding that it has better chances of being accepted than a thick and inclusive text. Israel’s major deficits in recent years are on the institutional level in any case, due to unclear rules of the game and so on, he said, and not in civil rights. Once the rules of the game are in place, the debates, discussions, and compromises on rights will be much easier and more effective. If, he concluded, this committee really wants to accomplish something in the current Knesset, it should pass the governmental section as a constitution alone.

Dr. Yitzhak Klein of the Israel Policy Center disagreed, saying that values and institutions could not and should not be separated. MK Eitan had little comment beyond his introductory remarks. He asked Salzberger about the point that the Constitution is meant to protect the minorities. The ultra-orthodox, who really fall into that category, will not be content with a small and flexible constitution that leaves the court wide room for interpretation, he pointed out. The Chairman’s fear was that, he said, if too many decisions are left to future Knessets, the court will decide them instead. Experience, he says, indicated this is so.

MK Ofir Pines-Paz (Labor) brought up the constitutional model promoted by Former Chief Justice of the Supreme Court Meir Shamgar and the Israel Democracy Institute. He expressed a preference for something more holistic and inclusive on institutions of government and rights, legislating whatever possible now, and leaving the rest for later legislation or even later constitutional legislation/amendments. He preferred to give the court room for involvement, interpretation, and decision-making, but asked to rigorously define it. MK Eitan responded by highlighting the effect of the significant majority that will be required for constitutional amendments; understand, he said, what this will mean for things that we “leave for later constitutional legislation.”

MK Pines then suggested the constitution could make explicit allowances, such as “...This clause may be amended or expanded by a small majority…” He expressed concern that nothing has happened on the constitutional front since 1992. He, too, preferred an incomplete constitution to nothing. He urged the committee to get something out there and passed.

MK Avraham Ravitz (Yahadut Hatorah) explained an element of what scares the ultra-orthodox about leaving things for later legislation. They prefer to keep the ball in the Knesset rather than in the Supreme Court, he said, for the simple reason that they have players in the Knesset, but no one representing them on the Court. They want to leave as much as possible to the legislators, because that’s where they are. He has no real argument with MK Ofir Pines, he said; but he is afraid of a document that leaves the Jewish/Democratic issue unresolved and at the Court’s mercy.