Israel?s ?Disengagement Law? authorizes the forced evacuation of Israeli citizens from Gaza and Northern Samaria. The law authorizes the State of Israel to sieze the property of Israeli citizens in these areas, paying compensation, according to some estimates, at thirty cents on the dollar. Anyone found in his home beyond the date the government has set for the evacuation is liable to imprisonment.
Rarely do countries that lay claim to the title of ?democracy? contemplate so Draconian a violation of the rights of innocent citizens, or avow the violation so frankly. When the law was debated in the Knesset, supporters and opponents alike concurred in defining it as a violation of the rights of the people affected. The idea of a law whose avowed purpose is to violate fundamental rights seems strange and dreadful. Can a law like this be legal? In Israel it can. Israel has no legal doctrine of inalienable rights.
In free countries, rights are supposed to be basic. American political theory is founded upon the concept of inalienable rights. There are certain things one may not do to law-abiding, peaceful citizens. The Constitution and the Bill of Rights exist to define any violation of rights, by law or by government action, as illegal. The task of the courts is to ensure that these rights are upheld.
In the European Union, international treaties define and protect rights. These treaties have the force of law in member states. No country?s government or Parliament can, on its own authority, change or set aside the treaties. Many European countries have constitutional courts whose authority is supreme and who have made it their responsibility to guarantee civil rights against violations by their own governments.
If necessary, a European who feels his rights have been violated can appeal to the European Court of Human Rights, which is independent of and superior to any of the EU?s member countries. The Court of Human Rights generally makes short shrift of any national law or government action it feels violates individual liberties.
Israel has two so-called ?basic laws? that touch upon rights. The most important one is the ?Basic Law on Human Dignity and Liberty,? which enumerates a noble list of human rights such as the right to life, liberty, property, privacy, etc. (the other is the ?Basic Law on Freedom of Occupation?). The critical part of this law is Article 8, however, which states that-
"The rights enumerated in this law may not be violated except by means of a law that accords with the values of the State of Israel, that serves a suitable purpose, and that does not violate rights more than necessary."
The plain meaning of this article is that rights may be violated. All one has to do is a pass a law that authorizes the violation. The legislation has to ?accord with the values of the State of Israel,? but this Basic Law does not define what those values are. The ambiguity is deliberate. Judges of the Israeli Supreme Court supervised the drafting of this Basic Law thirteen years ago and helped shepherd it through the Knesset.
The ?values of the State of Israel? clause is meant to let the judges decide what those values are. If they like the values that a violation of rights is supposed to promote, then the violation is OK. In a few weeks the Israeli Supreme Court will rule on a set of appeals against the provisions of the disengagement law. Not even the attorneys who brought the suits expect the Court to rule other than that disengagement accords with ?the values of the State of Israel.? Alas, they?ll be right.
Israel lacks the true bedrock of a free society?a doctrine of citizens? inalienable rights, rights that cannot be taken away, no matter whose interests are served thereby. Article 8 of the ?Basic Law on Human Dignity and Liberty? ought to be repealed. Of course, merely changing the law books isn?t enough.
The judges who got the Knesset to adopt Article 8, because they thought they had the wisdom to decide when their fellow citizens? rights may be dispensed with, are still on the bench. They ought to be replaced with judges who understand that rights come first. Then rights in Israel wouldn?t depend on whether they suited the political prejudices of the majority (not to mention a majority of judges on the bench). They?d be what they?re supposed to be?fundamental, inalienable rights.
Rarely do countries that lay claim to the title of ?democracy? contemplate so Draconian a violation of the rights of innocent citizens, or avow the violation so frankly. When the law was debated in the Knesset, supporters and opponents alike concurred in defining it as a violation of the rights of the people affected. The idea of a law whose avowed purpose is to violate fundamental rights seems strange and dreadful. Can a law like this be legal? In Israel it can. Israel has no legal doctrine of inalienable rights.
In free countries, rights are supposed to be basic. American political theory is founded upon the concept of inalienable rights. There are certain things one may not do to law-abiding, peaceful citizens. The Constitution and the Bill of Rights exist to define any violation of rights, by law or by government action, as illegal. The task of the courts is to ensure that these rights are upheld.
In the European Union, international treaties define and protect rights. These treaties have the force of law in member states. No country?s government or Parliament can, on its own authority, change or set aside the treaties. Many European countries have constitutional courts whose authority is supreme and who have made it their responsibility to guarantee civil rights against violations by their own governments.
If necessary, a European who feels his rights have been violated can appeal to the European Court of Human Rights, which is independent of and superior to any of the EU?s member countries. The Court of Human Rights generally makes short shrift of any national law or government action it feels violates individual liberties.
Israel has two so-called ?basic laws? that touch upon rights. The most important one is the ?Basic Law on Human Dignity and Liberty,? which enumerates a noble list of human rights such as the right to life, liberty, property, privacy, etc. (the other is the ?Basic Law on Freedom of Occupation?). The critical part of this law is Article 8, however, which states that-
"The rights enumerated in this law may not be violated except by means of a law that accords with the values of the State of Israel, that serves a suitable purpose, and that does not violate rights more than necessary."
The plain meaning of this article is that rights may be violated. All one has to do is a pass a law that authorizes the violation. The legislation has to ?accord with the values of the State of Israel,? but this Basic Law does not define what those values are. The ambiguity is deliberate. Judges of the Israeli Supreme Court supervised the drafting of this Basic Law thirteen years ago and helped shepherd it through the Knesset.
The ?values of the State of Israel? clause is meant to let the judges decide what those values are. If they like the values that a violation of rights is supposed to promote, then the violation is OK. In a few weeks the Israeli Supreme Court will rule on a set of appeals against the provisions of the disengagement law. Not even the attorneys who brought the suits expect the Court to rule other than that disengagement accords with ?the values of the State of Israel.? Alas, they?ll be right.
Israel lacks the true bedrock of a free society?a doctrine of citizens? inalienable rights, rights that cannot be taken away, no matter whose interests are served thereby. Article 8 of the ?Basic Law on Human Dignity and Liberty? ought to be repealed. Of course, merely changing the law books isn?t enough.
The judges who got the Knesset to adopt Article 8, because they thought they had the wisdom to decide when their fellow citizens? rights may be dispensed with, are still on the bench. They ought to be replaced with judges who understand that rights come first. Then rights in Israel wouldn?t depend on whether they suited the political prejudices of the majority (not to mention a majority of judges on the bench). They?d be what they?re supposed to be?fundamental, inalienable rights.