On Sunday the cabinet will vote on a draft of the Basic Law on the Right to Due Process, proposed by Justice Minister Gideon Sa’ar. Thirty years have gone by since Israel last passed a Basic Law dealing with human rights. We should welcome the fact that someone has undertaken to expand Israel’s list of constitutional rights. The Basic Law in question addresses an important and worthy issue that must be enshrined in law at the constitutional level.
Among other things, it will give the force of law to the right to procedural due process in criminal proceedings, the right to legal representation in criminal proceedings, fundamental principles such as the presumption of innocence, rights during arrest and interrogation, rights of victims of crime, a ban on cruel punishment and the right of minors and people with disabilities to avail themselves of these rights.
The problem is that the draft includes an article that significantly thwarts its goals. It states that the Basic Law will not supersede existing laws, a practice known as “preservation of laws.” What this means is that any existing laws pertaining to rights during interrogation, criminal trial and proceedings will not be subject to constitutional review in accordance with the new law. This is despite the fact that the main meaning, the “teeth” of basic rights, is their supremacy, as part of the constitution, over ordinary laws, and the ability of the court to conduct constitutional review and to determine, in rare cases, that an ordinary law is invalid because it contradicts the constitutional right in the Basic Law.
The preservation of laws clause determines that such constitutional review will be conducted only with regard to laws that are enacted after the Basic Law on the Right to Due Process is passed. The result is that the law will be a kind of ribbon-cutting with little real significance. Even if it may serve as inspiration in interpreting the law, that is not the purpose of fundamental rights.
True, the Basic Law on Human Dignity and Freedom also included such a clause, and therefore constitutional review based on it is conducted only on laws passed in 1992 or later. But there, the purpose of the preservation of laws is to maintain the status quo on matters of religion and state, as well as controversial “identity” issues. In the bill under discussion there is no such controversy, and the only reason for the preservation of laws is the state prosecution’s apprehension over an increase in the number of proceedings and challenges to existing laws. That is not a sufficient reason to weaken the new Basic Law.
The Basic Law on the Right to Due Process must therefore be approved either without the preservation of laws clause, or with a provision specifying a time limit for its application, which allows the state to prepare for the law’s enactment. After that period, the just principles the law advances must be applied to all legislation in Israel.
The above article is Haaretz's lead editorial, as published in the Hebrew and English newspapers in Israel.