Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 067401264X, 9780674012646

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TOWARDS JURISTOCRACY

Ran Hirschl

Towards Juristocracy The Origins and Consequences of the New Constitutionalism

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts, and London, England

2004

Copyright © 2004 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Hirschl, Ran. Towards juristocracy : the origins and consequences of the new constitutionalism / Ran Hirschl p. cm. ISBN 0-674-01264-X (alk. paper) 1. Political questions and judicial power. 2. Constitutional law. I. Title. K3367.H57 2004 342—dc22 2003056678

Contents

Introduction

1

1

Four Constitutional Revolutions

2

The Political Origins of Constitutionalization

3

Hegemonic Preservation in Action

4

Constitutionalization and Judicial Interpretation of Rights

5

Rights and Realities

6

Constitutionalization and the Judicialization of Mega-Politics 169

17

50

149

Conclusion: The Road to Juristocracy and the Limits of Constitutionalization 211 Notes

225

Legal Decisions Cited

261

Acknowledgments 271 Index

273

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As Wine and oyl are Imported to us from abroad; so must ripe Understanding, and many civil Virtues, be imported into our minds from Foreign Writings, and examples of best Ages, we shall else miscarry still, and come short in the attempts of any great Enterprise. John Milton, The Character of the Long Parliament

Introduction

Over the past few years the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in more than eighty countries and in several supranational entities, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The countries that have hosted this expansion of judicial power stretch from the Eastern Bloc to Canada, from Latin America to South Africa, and from Britain to Israel. Most of these countries have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review. An adversarial American-style rights discourse has become a dominant form of political discourse in these countries. The belief that judicially affirmed rights are a force of social change removed from the constraints of political power has attained near-sacred status in public discussion. National high courts and supranational tribunals have become increasingly important, even crucial, political decision-making bodies. To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral or political controversy in the world of new constitutionalism that does not sooner or later become a judicial one.1 This global trend toward juristocracy is arguably one of the most significant developments in late-twentieth- and early-twenty-first-century government.2 The emergence of this new method of pursuing political goals and managing public affairs has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike. According to the generic version of this canonical view, the crowning proof of democracy in our times is the growing acceptance and enforcement of the idea that democracy is not the same thing as majority rule; that in a real democracy (namely a constitu1

2

Introduction

tional democracy rather than a democracy governed predominantly by the principle of parliamentary sovereignty), minorities possess legal protections in the form of a written constitution, which even a democratically elected assembly cannot change. Under this vision of democracy, a bill of rights is part of fundamental law, and judges who are removed from the pressures of partisan politics are responsible for enforcing those rights. In fact, American constitutional scholars often argue that the foundation of the United States was based on precisely this understanding of constitutional democracy. As Ronald Dworkin, perhaps the most prominent proponent of this view, observes, every member of the European Union as well as other “mature democracies” (in Dworkin’s words) subscribe to the view that democracy must protect itself against the tyranny of majority rule through constitutionalization and judicial review.3 Even countries such as Britain, New Zealand, and Israel—described fairly recently as the last bastions of Westminster-style parliamentary sovereignty—have recently embarked on a comprehensive constitutional overhaul aimed at introducing principles of constitutional supremacy into their respective political systems. This sweeping worldwide convergence to constitutionalism, many theorists contend, stems from modern democracies’ post–World War II commitment to the notion that democracy entails far more than a mere adherence to the principle of majority rule. Not least, we are often reminded, it reflects these polities’ genuine commitment to entrenched, self-binding protection of basic rights and civil liberties in an attempt to safeguard vulnerable groups and individuals from the potential tyranny of political majorities. Accordingly, the seemingly undemocratic characteristics of constitutions and judicial review are often portrayed as reconcilable with majority rule or simply as necessary limits on democracy. In short, judicial empowerment through the constitutionalization of rights and the establishment of judicial review now appear to be the widely accepted conventional wisdom of contemporary constitutional thought. The constitutionalization of rights and the corresponding establishment of judicial review are widely perceived as power-diffusing measures often associated with liberal and/or egalitarian values. As a result, studies of their political origins tend to portray their adoption as a reflection of progressive social or political change, or simply as the result of societies’ or politicians’ devotion to a “thick” notion of democracy and their uncritical celebration of human rights. Yet most of the assumptions regarding the power-diffusing, redistributive effects of constitutionalization, as well as the assumptions re-

Introduction

3

garding its predominantly benevolent and progressive origins, remain for the most part untested and abstract. Even critics of the view that constitutionalism is an all-out “good thing” have not paid much attention to the actual political origins or consequences of judicial empowerment through constitutionalization. Instead, these critics have been almost exclusively preoccupied with the wellrehearsed normative debate over the “countermajoritarian” nature of judicial review and the “democratic deficit” inherent in transferring important policy-making prerogatives from elected and accountable politicians, parliaments, and other majoritarian decision-making bodies to the judiciary.4 Indeed, one can count on the fingers of one hand the works that use concrete empirical and inductive inquiry to question the democratic credentials of constitutionalism and judicial review. Surprisingly, Ronald Dworkin, perhaps the champion proponent of constitutionalization and judicial review on normative grounds, agrees that ultimately “the proof of the pudding is in the eating.” Democracy, he argues, is fundamentally concerned with treating people as equals. If courts can do this as effectively as representative institutions elected by universal suffrage, it is irrelevant whether in doing so they overrule majority will. None of Dworkin’s six books on constitutionalism cite any empirical work on the origins and consequences of constitutionalization and judicial review.5 Nonetheless, Dworkin admits that there is “no alternative but to use a resultdriven rather than a procedural-driven standard for deciding [the judicial review question]. The best institutional structure is the one best calculated to produce the best answers to the essentially moral question of what the democratic conditions actually are, and to secure stable compliance with those conditions.”6 I could not agree more. Once we have settled on a given normative meaning of the term “social justice” (be it a collectivist-egalitarian, individualistlibertarian, or any other understanding of the term), the question of democracy versus constitutionalism in pursuit of social justice becomes an empirical question: What type of fundamental governing principle—parliamentary sovereignty, constitutional supremacy, welfare state, neoliberal macroeconomics, or any other overarching principle—has produced or is likely to produce practical outcomes closest to that meaning of social justice? In other words, the index of democracy vis-à-vis constitutionalism and/or judicial activism is not the character of constitutionalism or judicial review per se, but rather the nature of its substantive outcome. Likewise, an inquiry into

4

Introduction

the concrete sociopolitical vectors behind specific incidents of constitutionalization would not only explore a rarely traveled scholarly terrain; it would also yield illuminating insights concerning the questionable democratic credentials of constitutionalism and judicial review. The preoccupation of prominent scholars who shape the contours of contemporary debate is not the only reason for the dearth of research concerning the origins and consequences of constitutionalization. Scholars of constitutional law and politics also tend toward parochialism regarding the constitutional arrangements and practices of other countries. Most existing studies on the political origins and consequences of judicial power are based on the United States’ exceptional, if not downright idiosyncratic, constitutional legacy. Several important critical assessments of the 1982 constitutionalization of rights in Canada have appeared over the past decade.7 A few other single-country studies have examined the significant political role of national high courts in advanced democracies that have adopted a variety of administrative and judicial review procedures during the postwar decade.8 In addition, several very fine studies have assessed the utility of constitutional engineering in the former Eastern Bloc countries,9 and a spate of scholarship concerns judicial politics in Western Europe and the EU.10 However, with a few notable exceptions,11 genuinely comparative studies of the origins and consequences of constitutional transformation and judicial empowerment are rare, and those that do exist often lack coherent methodology. In short, despite the fact that courts now play a key role in dealing with the most contentious social and political issues, the field of comparative judicial studies in general, and the study of the political origins and consequences of judicial empowerment in particular, remain relatively underresearched and undertheorized. In an attempt to move beyond the abstract rhetoric and parochialism that have all too often dogged the academic debate over constitutionalism, in this book I examine the political origins and consequences of constitutional revolutions in four countries: Canada (which adopted the Canadian Charter of Rights and Freedoms in 1982); New Zealand (which enacted the New Zealand Bill of Rights Act in 1990); Israel (which adopted two new Basic Laws protecting a number of core civil liberties in 1992); and South Africa (which adopted an interim Bill of Rights in 1993, a final Bill of Rights in 1996, and a new Constitutional Court in 1995). Drawing on a systematic analysis of these four recent constitutional revolutions, I address three major questions:

Introduction

5

1. What are the political origins of the recent constitutionalization trend? That is, to what extent is the expansion of judicial power through the constitutionalization of rights and the establishment of judicial review a reflection of a genuinely progressive revolution in a given polity? Or, conversely, is it a means by which preexisting sociopolitical struggles in that polity are carried out? 2. What is the real impact of the constitutionalization of rights and the fortification of judicial review on national high courts’ interpretive attitudes toward progressive notions of distributive justice, and what are the extrajudicial effects of constitutionalization on the actual advancement of such notions? 3. What are the political consequences of judicial empowerment through constitutionalization, and what are the implications for twenty-first-century democratic government of the unprecedented judicialization of politics that proceed through the constitutionalization of rights and the establishment of judicial review? In short, this study aims to put the political origins and consequences of constitutionalization to the test.

Beyond the American Experience “For the past two centuries,” writes critic Daniel Lazare, “the Constitution has been as central to American political culture as the New Testament was to medieval Europe. Just as Milton believed that ‘all wisdom is enfolded’ within the pages of the Bible, all good Americans, from the National Rifle Association to the ACLU, have believed no less of this singular document.”12 Indeed, remarkably profound symbolic and practical effects are attributed to the American Bill of Rights and judicial review by scholars, legal practitioners, and political activists. Over the past two decades, however, a number of closely reasoned and well-researched critical studies have sought to revisit the optimistic, albeit untested and abstract, court-centric consensus of the post-Brown generation in American constitutional law scholarship. While these studies successfully undermine the complacent view that constitutional catalogues of rights and judicial review are unequivocally positive, they draw almost exclusively on the experience of the American “rights rev-

6

Introduction

olution” and that country’s history of judicial review. It is remarkable how rarely books and articles on American constitutional law and politics, for example, refer to constitutions and bills of rights in other countries. As George Fletcher notes, a striking feature of the American jurisprudential debate is its provinciality. The arguments are put forward as though the American legal system were the only legal system in the world.13 Indeed, many American scholars of constitutional law and politics treat the term “constitution” as though it were a proper name rather than a concept whose nature, origins, and consequences could best be understood by examining and comparing a variety of instances of constitutionalism. American parochialism with regard to other countries’ constitutional arrangements and practices is especially remarkable given the scope of the trend toward the adoption of constitutional catalogues of rights, the fortification of judicial review, and the consequent judicialization of politics that has recently swept the world. Despite an increasing number of notable exceptions, American scholarship on constitutional law and politics still tends to ignore comparable developments in other countries. The dearth of comparative research into the origins and consequences of constitutionalization is not merely a problem in terms of aesthetics or intellectual taste; it has important methodological implications. Relatively few American constitutionalists have examined how this process has unfolded outside the United States. This means that American critics of judicial review have systematically failed to address a common observation made by proponents of judicial review, namely that there is no experimental control for the U.S. case. We know what the U.S. Supreme Court has done in the name of judicial review, but we do not know what the relevant legislatures would have done if the Supreme Court had eschewed or been deprived of this power. The American experience of active judicial review is nearing its bicentennial. This long history makes a diachronic, quasi-experimental, prelegislation-postlegislation empirical investigation into the impact of the constitutionalization of rights and the establishment of judicial review in the United States difficult, perhaps impossible, to conduct. This is not so of countries with a relatively short experience of judicial review, where it is possible to hold other variables to manageable levels. While the extremely rich and diverse constitutional jurisprudence of the U.S. Supreme Court over the past two centuries provides us with an abundance of data pertaining to judicial interpretation and behavior, the American constitutional leg-

Introduction

7

acy is perhaps the least appropriate example to use in assessing the function of judicial review in the pursuit of social justice: there is no alternative domestic model against which to measure the achievements of the U.S. Constitution. Moreover, a study that concentrates solely on the singular American constitutional legacy is necessarily going to produce idiosyncratic conclusions not readily transferable to other political and legal contexts. In contrast, the fact that many countries have moved toward the constitutionalization of rights and the establishment of judicial review over the past few decades provides fertile terrain for investigating the political origins and consequences of these changes. Six broad scenarios of constitutionalization and the establishment of judicial review at the national level have been commonly seen in the post– World War II era:14 1. The “reconstruction” wave, in which judicial empowerment was a byproduct of political reconstruction in the wake of World War II. Examples include the 1946 introduction of a revised constitution in Japan; the introduction of a new constitution in Italy in 1948 and the consequent implementation of the Italian Constitutional Court in 1956; the adoption of the Basic Law in 1949 and the establishment of the Federal Constitutional Court in Germany; and the 1958 adoption of the French Constitution and the consequent establishment of the Constitutional Council (Conseil Constitutionnel). 2. The “independence” scenario, in which the constitutionalization of rights and the establishment of judicial review were part of decolonization processes, primarily in former British colonies. A classic example of this pattern was the 1950 proclamation of the new Indian constitution and the establishment of the Supreme Court of India, the foundations of which had been laid out by the Indian Independence Act of 1947. In addition, while for many years Britain was unwilling to incorporate the provisions of the European Convention on Human Rights (ECHR) into its own legal system (let alone enact a constitutional bill of rights of its own), it enthusiastically promoted the entrenchment of rights protected by the ECHR in the “independence constitutions” of newly self-governing African states, as devices for protecting established interests from the whims of independent majoritarian politics. The constitutionalization of rights in the Gold Coast (Ghana) in 1957, Nigeria in 1959, and Kenya in 1960 (to mention just three examples) followed this pattern. 3. The “single transition” scenario, in which the constitutionalization of rights and the establishment of judicial review are the by-products of a tran-

8

Introduction

sition from a quasi-democratic or authoritarian regime to democracy. South Africa adopted an interim Bill of Rights in 1993 and a final Bill of Rights in 1996, along with a Constitutional Court in 1995, as part of its transition to full democracy in the mid-1990s. Almost all the newer democracies in Southern Europe (Greece in 1975, Portugal in 1976, Spain in 1978) and Latin America (Nicaragua in 1987, Brazil in 1988, Colombia in 1991, Peru in 1993, Bolivia in 1994) adopted bills of basic rights as part of their new constitutions, as well as establishing some form of active judicial review. 4. The “dual transition” scenario, in which constitutionalization is part of a transition to both a Western model of democracy and a market economy. Obvious examples of this scenario include the numerous constitutional revolutions of the postcommunist and post-Soviet countries. The most significant of these were the pioneering establishment of the Polish Constitutional Tribunal in 1986; the establishment of the Hungarian Constitutional Court in 1989–90 and the Russian Constitutional Court in 1991; and the inauguration of judicial review in the Czech Republic and Slovakia in 1993. 5. The “incorporation” scenario, in which constitutionalization is associated with the incorporation of international and trans- or supranational legal standards into domestic law. Important examples include the incorporation of the European Convention on Human Rights into Denmark’s domestic law in 1993 and Sweden’s in 1995 (Sweden had already adopted judicial review in 1979); and the recent passing in Britain of the Human Rights Act (1998), which effectively incorporated the provisions of the ECHR into British constitutional law—the first rights legislation in the United Kingdom for three hundred years. 6. The “no apparent transition” scenario, in which constitutional reforms have been neither accompanied by nor the result of any apparent fundamental changes in political or economic regimes. Some examples would be the consititutional revolution and the corresponding establishment of active judicial review in Sweden (1979) and Mexico (1994); the enactment of the New Zealand Bill of Rights Act in 1990; the adoption of two new Basic Laws in Israel protecting a number of core rights and liberties; and the adoption of the Canadian Charter of Rights and Freedoms in 1982. Each of these types of constitutional reform poses its own puzzles for scholars of public law and judicial politics. It is the “no apparent transition” scenario of constitutional revolution, however, that I find the most intriguing from a methodological standpoint. The recent constitutional revolutions in Canada, New Zealand, and Israel, for example, provide nearly

Introduction

9

ideal testing ground for identifying the political origins and consequences of the constitutionalization of rights and the fortification of judicial review, for several reasons. First, all three countries have undergone a major constitutional reform over the past two decades that introduced such changes; yet, unlike many former Eastern Bloc countries, for example, the dramatic constitutional changes in all three countries were not accompanied by, nor did they result from, major changes in political regime. In these countries, therefore, it is possible to disentangle the political origins of constitutionalization from other possible explanations and to distinguish the impact of judicial empowerment by looking at changes in judicial interpretation and the judicialization of politics. Second, the constitutional revolutions in Canada, New Zealand, and Israel took place in societies deeply divided along political, economic, and ethnic lines. A study of these three countries therefore allows us to assess the significance of preexisting sociopolitical struggles in the move toward judicial empowerment through constitutionalization in each polity. Third, the recent constitutional overhaul in Canada, New Zealand, and Israel marked a departure from the Westminster model of parliamentary supremacy and the established British legal tradition of judicial restraint in these countries. This has provided the Canadian Supreme Court, the New Zealand Court of Appeal, and the Israeli Supreme Court with the necessary institutional framework to become more vigilant in protecting basic rights and liberties. Indeed, these three national courts have reacted with great enthusiasm to the constitutionalization of rights and the fortification of judicial review in their respective domains by adjudicating many landmark constitutional rights cases over the past decade. Fourth, all three polities possess a strong British common law legal tradition. This common inheritance eliminates variations in legal tradition as possible explanations for differences in legal activity and judicial interpretation among the three countries. Fifth, these countries represent different models of judicial review and distinct variances in constitutional rights status while remaining within the context of an established democratic tradition. Precisely because the recent constitutional revolutions in Canada, New Zealand, and Israel have taken place in established democracies, framers of the new constitutional arrangements could not ignore the countermajoritarian tendency embedded in constitutionalism and judicial review. Persisting political traditions of parliamentary sovereignty and democratic representation had to be taken into account by those who initiated the constitutional overhaul in these countries. The result has been the development of a variety of innovative institu-

10

Introduction

tional mechanisms aimed at compensating for the countermajoritarian difficulty embedded in judicial review. The significance of formal institutional factors can thus be assessed while accounting for variations in legal and political outcomes of constitutionalization as experienced by all three polities. The widely celebrated South African constitutional revolution meanwhile represents a most difficult case to scholars skeptical of the conventional views concerning the progressive driving forces behind bills of rights and the overwhelmingly positive effects of such bills. Prior to the enactment of the 1993 interim Bill of Rights (replaced by the final Bill of Rights in 1996), there was perhaps no other developed country in the postwar world in which the gap between popular will and constitutional arrangement was so wide. In addition to issues of material inequality, the notorious apartheid regime excluded over 80 percent of South Africa’s population from any meaningful participation in the democratic political arena. The abolition of apartheid in early 1991, the constitutionalization of rights in 1993, the first inclusive national election in 1994, and the establishment of the Constitutional Court in 1995 together mark a dramatic shift in the formal status of the vast majority of nonwhite South Africans. Few would doubt the crucial symbolic importance of these measures to the historically disenfranchised groups in South Africa. The practical effects of South Africa’s constitutional rights revolution, however, appear to be much more nuanced and ought to be examined carefully. Moreover, from a methodological standpoint, “most difficult cases” have an important merit: our confidence in a given set of hypotheses is enhanced once it has proven to hold true even in the most challenging cases. It is precisely for this reason that I have chosen to refer to the South African constitutional revolution throughout the present study and to examine some of its political origins and salient de facto consequences, along with those of Canada, New Zealand, and Israel.

Outline of the Book My discussion proceeds in three major steps. I begin in Chapter 1 by presenting an outline of the new constitutional framework in Canada, New Zealand, Israel, and South Africa, and by charting the effect of the recent constitutionalization of rights on the size and scope of judicial review in the four countries. This brief survey delimits the book’s parameters and provides a context for the discussion to follow. The second part of the book (Chapters 2 and 3) is devoted to a comparative study of the political origins of constitutionalization. In Chapter 2 I examine existing theories of constitu-

Introduction

11

tional transformation that purport to explain the causal mechanisms behind the constitutional entrenchment of rights and the establishment of judicial review. These include evolutionist and functionalist approaches to constitutional transformation; institutional economics theses, which see the development of constitutions and judicial review as mechanisms to mitigate systemic collective-action problems, such as commitment, information, and enforcement problems; and, finally, micro-level, “thin” strategic behavior models, which tend to employ party-based, “electoral market” logic to explain judicial empowerment. I argue that none of these existing theories is based on a genuinely comparative systematic and detailed analysis of the political vectors behind any of the actual constitutional revolutions of the past few decades. Moreover, none accounts for the precise timing, scope, and nature of constitutional reform. To address this puzzle, I develop a new explanation of judicial empowerment through constitutionalization as a form of self-interested hegemonic preservation. My underlying assumptions in developing this explanation for constitutionalization and judicial empowerment are: (1) the expansion of judicial power is an integral part and an important manifestation of the concrete social, political, and economic struggles that shape a given political system and cannot be understood in isolation from them; (2) the political origins of constitutional reform cannot be studied in isolation from the political origins of constitutional stalemate and stagnation; (3) other variables being equal, prominent political, economic, and judicial actors are likely to favor the establishment of institutional structures that will benefit them the most; and (4) constitutions and judicial review hold no purse strings and have no independent enforcement power, but nonetheless limit the institutional flexibility of political decision-makers. Thus, voluntary self-limitation through the transfer of policy-making authority from majoritarian decisionmaking arenas to courts seems, prima facie, to run counter to the interests of power-holders in legislatures and executives. The most plausible explanation for voluntary, self-imposed judicial empowerment is therefore that political, economic, and legal power-holders who either initiate or refrain from blocking such reforms estimate that it serves their interests to abide by the limits imposed by increased judicial intervention in the political sphere. In other words, those who are eager to pay the price of judicial empowerment must assume that their position (absolute or relative) would be improved under a juristocracy. Specifically, I suggest that judicial empowerment through constitu-

12

Introduction

tionalization is best understood as the product of a strategic interplay between three key groups: threatened political elites, who seek to preserve or enhance their political hegemony by insulating policy making in general, and their policy preferences in particular, from the vicissitudes of democratic politics while they profess support for democracy; economic elites, who view the constitutionalization of rights, especially property, mobility, and occupational rights, as a means of placing boundaries on government action and promoting a free-market, business-friendly agenda; and judicial elites and national high courts, which seek to enhance their political influence and international reputation. In other words, I argue that strategic legal innovators—political elites in association with economic and judicial elites who have compatible interests—determine the timing, extent, and nature of constitutional reforms. While the benefits of constitutionalization for economic libertarians and judicial elites appear obvious, its appeal for hegemonic sociopolitical forces and their political representatives may at first glance look questionable. However, when their policy preferences have been, or are likely to be, increasingly challenged in majoritarian decision-making arenas, elites that possess disproportionate access to, and influence over, the legal arena may initiate a constitutional entrenchment of rights and judicial review in order to transfer power to supreme courts. Based on the courts’ relatively high public reputation for professionalism and political impartiality, their record of adjudication, and the justices’ ideological preferences, these elites may safely assume that their policy preferences will be less effectively contested under the new arrangement. Judicial empowerment through constitutionalization may provide an efficient institutional solution for influential groups who seek to preserve their hegemony and who, given an erosion in their popular support, may find strategic drawbacks in adhering to majoritarian policy-making processes. More “demographically representative” political processes are, in other words, a catalyst, not an outcome, of constitutionalization. The constitutionalization of rights is therefore often not a reflection of a genuinely progressive revolution in a polity; rather, it is evidence that the rhetoric of rights and judicial review has been appropriated by threatened elites to bolster their own position in the polity. By keeping popular decision-making mechanisms at the forefront of the formal democratic political process while shifting the power to formulate and promulgate certain policies to semiautonomous professional policy-making bodies, those who possess disproportionate access to, and have a decisive influence upon, such bodies minimize the potential threat to their hegemony.

Introduction

13

The third part of the book (Chapters 4, 5, and 6) assesses the major effects of constitutionalization. The core argument I advance is that whereas their impact on advancing progressive notions of distributive justice is often overrated if not outright negligible, the constitutionalization of rights and the establishment of judicial review have a transformative effect on political discourse and the way fundamental moral and political controversies are articulated, framed, and settled. In Chapter 4, I present a systematic quantitative-qualitative analysis of the interpretations given by national high courts of the rights protected by the newly enacted bills of rights in the four new constitutionalism polities at the center of this study. The analysis is based on a survey of all national high court bills of rights jurisprudence in the four countries from the date of enactment to the end of the 2002 adjudication year. This comprehensive comparative examination seeks to identify a set of prevalent principles in contemporary judicial interpretations of constitutional rights, and to offer a realistic assessment of the current potential for advancing progressive concepts of distributive justice through the constitutionalization of rights and rights litigation. Special attention is given to four key issues: criminal due process rights (classic procedural rights); demarcation of the private sphere through jurisprudence concerning freedom of expression (classic “first generation” negative liberty) and formal equality in the context of sexual preference (the hallmark of progressive constitutional rights jurisprudence in the four examined countries); subsistence social and economic rights, such as the right to health care, basic housing, education, social security and welfare, and an adequate standard of living (classic “positive” or “second generation” rights); and freedom of association and occupation in the context of labor relations (rights that can be interpreted either as providing entitlements to wider state-controlled legal protection for workers or as protecting the private economic sphere from state intervention). This comparative examination charts the vacillation between a relatively generous judicial interpretation of expansive notions of distributive justice and a narrower commitment to open markets, procedural equality, and Lockean-style individual autonomy. Looking at these four areas also allows us to compare judicial attitudes toward two conceptions of rights—one whose full realization entails greater state activity in amending morally disturbing market failures in the realm of distributive justice, and another whose full realization calls for a broad definition of the private sphere by way of halting the progress of the encroaching state. This analysis should then enable us to distinguish types of policy arenas where the constitutionalization of rights could plant the seeds of change.

14

Introduction

This systematic analysis of the four countries’ complete record of constitutional rights jurisprudence reveals a clear common tendency to adopt a narrow conception of rights, emphasizing Lockean individualism and the dyadic and antistatist aspects of constitutional rights. Despite the openended wording of the constitutional catalogues of rights in Canada, New Zealand, Israel, and South Africa, the national high courts of all four countries tend to conceptualize the purpose of rights as protecting the private sphere (whether human or economic) from interference by the “collective” (often understood as the long arm of the encroaching state). In Chapter 5, I present a rough sketch of the impact of constitutionalization on the socioeconomic status of historically disenfranchised groups in Canada, New Zealand, Israel, and South Africa. To this end, I assess the impact of constitutionalization on the distribution of wealth in these four polities. I then proceed to assess the impact of constitutionalization on key measures of socioeconomic conditions, such as access to education, housing conditions, and levels of health status as indices of social change in the four countries. I conclude by contrasting the limited impact of constitutionalization on enhancing the life conditions of the have-nots with its significant contribution to the removal of so-called market rigidities and the promotion of economic liberties in the four countries. The examination of the impact of constitutionalization on patterns of judicial interpretation (Chapter 4), as well as its extrajudicial effect on the de facto socioeconomic status of the have-nots (Chapter 5), casts serious doubt on the assumption that constitutionalizing rights and establishing judicial review mechanisms should have an independent positive effect on the socioeconomic status of historically disenfranchised groups. At the very least, the evidence presented in these chapters suggests that there is much to question regarding the claim that bills of rights have been or are likely to be effective vehicles for creating a more egalitarian society. Whereas the constitutionalization of rights has proved effective in expanding the boundaries and protection of the private sphere, it has utterly failed to promote progressive or egalitarian notions of distributive justice in a meaningful way. In an age of social and economic neoliberalism, constitutional rights appear to have only a limited capacity to advance progressive notions of social justice into arenas such as employment, income distribution, health, housing, and education, which require wider state intervention and more public expenditure. However, when it comes to negative liberties—all of which require that the state maintain merely procedural fairness and refrain from

Introduction

15

excessively interfering in the private sphere—the constitutionalization of rights has the potential to plant the seeds of change. In Chapter 6, I illustrate the impact of judicial empowerment through constitutionalization on the way in which salient political problems are framed and dealt with. To that end, I examine in detail the four countries’ constitutional jurisprudence pertaining to foundational nation-building processes (such as the future of Quebec and the Canadian federation, and the deep secular-religious cleavage and the peace process in Israel), and fundamental restorative justice dilemmas (such as the status of New Zealand’s Maori population and the question of reconciliation and reparation in the wake of the apartheid era in South Africa). As these examples demonstrate, the adoption of a constitutional catalogue of rights and the fortification of judicial review provided the necessary framework for the formulation of fundamentally political controversies in constitutional terms. This framework serves to encourage the transfer to the courts issues that ought, prima facie, to be resolved in the political sphere. Judicial empowerment through constitutionalization thus offers a convenient refuge for politicians to avoid or delay unwanted political outcomes. Conflicts involving contentious political issues are treated as primarily legal questions rather than political ones, with the concomitant assumption that national high courts, instead of elected representatives, should resolve them. From the politicians’ point of view, the delegation of power to the courts involves considerable long-term risks: erosion of the public image of national high courts as autonomous, apolitical decision-making bodies; opposition use of courts to fight governments; and above all the dilemma of delegation—how to ensure that once the courts’ policy-making powers are extended they will indeed produce judgments that reflect the ideological preferences and serve the political interests of those who have granted policy-making to the judiciary. While a number of these problems have materialized in some way in the four countries studied, none has proved to be a serious threat to the well-orchestrated judicial empowerment game. An examination of the scope and nature of political jurisprudence in the four countries suggests that consistent judicial divergence from the interests and expectations of those who initiate and zealously advocate a transition to juristocracy is unlikely. Nonetheless, the judicial sphere in these and many other new constitutionalism polities continues to be generally more reputable than most elements in the political sphere. In the conclusion I offer a few reflections regarding the real potential of

16

Introduction

constitutional catalogues of rights to protect and advance progressive conception of social justice in a an emerging neoliberal economic order; the changing nature of politics in the era of new constitutionalism; and the place of judicial empowerment within a broader sociopolitical trend whereby policy-making authority is removed from majoritarian decision-making arenas, insulated from “we the people,” and invested in semiautonomous, professional policy-making bodies that increasingly shape and control crucial aspects of our lives. I argue that the global trend toward judicial empowerment through constitutionalization should be understood as part and parcel of a large-scale process whereby policy-making authority is increasingly transferred by hegemonic elites from majoritarian policy-making arenas to semiautonomous, professional policy-making bodies primarily in order to insulate their policy preferences from the vicissitudes of democratic politics. Through a comprehensive comparative inquiry into the origins and consequences of four recent constitutional revolutions, I attempt to go beyond the traditional single-country analysis that has characterized the study of constitutional politics. In doing so I hope to make a powerful case against the widely held conventional wisdom that the constitutionalization of rights and the establishment of judicial review have benevolent and progressive origins as well as significant redistributive, power-diffusing consequences. I hope to incite renewed discussion that allows us to take a hard look at why we are heading ever faster toward juristocracy—and what to expect when we get there.

CHAPTER

1

Four Constitutional Revolutions

Constitutional political events—whether these are formal like the Magna Carta and the Glorious Revolution or informal like the New Deal in America—define a nation’s character in symbolism that cannot be fully appreciated at the time. Ronald Dworkin, A Bill of Rights for Britain

Before we proceed to examine the political origins and consequences of the recent constitutional transformation in Canada, New Zealand, Israel, and South Africa, it is useful to outline the fundamentals of the new constitutional framework in these countries and to chart its effect on the size and scope of judicial review.

Canada, 1982 Canada’s adoption of the Constitution Act 1982, which includes a bill of rights entitled the Charter of Rights and Freedoms, marked the official patriation of the Canadian constitution from the authority of the British Crown after a 115-year-long process that began with the enactment of the British North America (BNA) Act 1867.1 The Constitution Act of 1982 states that the Charter is part of the supreme law of Canada, such that any laws inconsistent with it are “of no force and effect.” In addition, the Charter itself contains detailed language intended to discourage courts from adopting narrow interpretations of its guarantees. It contains provisions such as the protection of fundamental freedoms (including freedom of conscience, religion, thought, expression, peaceful assembly, and association); political rights (including the right to vote and to hold office); mobility rights (including the freedom to reside anywhere in Canada and to travel, subject to reasonable restrictions); the right to life, liberty, and security; the right to due process in 17

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criminal proceedings (including the right to be secure from unreasonable search or seizure and arbitrary detention, equality before the law, and other classic safeguards); equality rights; and language rights (including the officially equal status of English and French and minority-language education rights). In its first Charter ruling (Law Society of Upper Canada v. Skapinker, 1984) the Supreme Court of Canada (SCC) declared that its position on applying the Charter to judicial review was similar to the U.S. Supreme Court’s groundbreaking endorsement of judicial review in Marbury v. Madison (1803). In 1992, ten years after the charter came into effect, the SCC’s Chief Justice, Antonio Lamer, declared that “the introduction of the Charter has been nothing less than a revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser.”2 The rights protected by the Canadian Charter of Rights and Freedoms are subject to two important limitations. First, section 1 (the “limitation clause”) states that the rights protected by the Charter are guaranteed, subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Simply put, if any limits are to be placed on rights, the government must establish to the satisfaction of the courts that those limits can be justified in a free and democratic society.3 Second, a significant limitation to rights and freedoms lies in section 33— the “notwithstanding clause.” This clause enables elected politicians in either the federal parliament or the provincial legislatures to legally limit rights and freedoms under section 2 (fundamental freedoms) and sections 7 to 15 (due process and equality rights) of the Charter by passing overriding legislation valid for a period of up to five years. This means that any invocation of section 33 essentially grants parliamentary fiat over these rights and freedoms. This in turn means that both the federal parliament (in regard to federal matters) and the provincial legislatures (in regard to matters within provincial jurisdiction) are ultimately sovereign over such matters. While it would be an exaggeration to suggest that the override clause has become a political “dead letter,” as some have argued, it is fair to say that it has not proved to be an effective mechanism in mitigating the countermajoritarian difficulty embedded in constitutionalism and judicial review. Moreover, as explained in Chapter 6, the override clause—along with mechanisms such as section 1’s limitation clause, designed to maintain the fundamental principles of democratic governance—has failed to block legislative deference to the judiciary or to impede the unprecedented judicialization of politics in Canada during the past two decades.

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In addition to providing entrenched constitutional status for basic rights, the adoption of the Constitution Act 1982 revolutionized the status of judicial review in Canada. By declaring a set of thirty acts and statutes as the supreme law of Canada (including the BNA Act and the Constitution Act itself), the Constitution Act marked a departure from a generally deferential, British-style mode of restrained judicial review by Canadian courts in the pre-Charter era. Prior to 1982, judicial review was based primarily on the principle of ultra vires on federalism grounds. The Constitution Act introduced a new regime of entrenched constitutional provisions, rights, and limitations as the primary basis for the exercise of judicial review in Canada. Five of the act’s provisions (the aforementioned sections 1 and 33, as well as sections 24, 32, and 52) establish a formal structure of active judicial review. The new regime also preserves the reference procedure, which allows both the federal and provincial governments to refer statutes and “abstract” constitutional questions to the SCC or the provincial courts of appeal for an advisory opinion on their constitutionality. From a quantitative perspective, the impact of the Charter of Rights and Freedoms on judicial activism in Canada has been nothing short of revolutionary. This becomes clear if we consider certain quantitative findings. First, whereas constitutional law cases represented only 2.4 percent of the SCC’s caseload between 1962 and 1971 and 5.5 percent between 1972 and 1981, the proportion of constitutional cases almost quadrupled between 1982 and 1991—to 21.3 percent. Much of this increase can be attributed to the adoption of the Charter, which accounted for over 80 percent (or 195 of 236 decisions) of the Court’s constitutional law judgments during 1982–1991. Second, the number of constitutional rights cases as compared to regular civil cases on the SCC’s docket sharply increased during this same period. While in 1975 (seven years prior to the adoption of the Charter) the number of constitutional rights cases accounted for approximately one-quarter of the “regular” (ordinary, non–constitutional law) civil cases decided by the SCC, in 1989 (seven years after the adoption of the Charter), the number of constitutional rights cases outnumbered regular civil cases heard by the Court by approximately 120 percent. Third, during the first two decades of the Charter’s existence (from April 1982 to December 2002), 20 percent of the SCC’s decisions (440 of 2,195) involved the Charter; moreover, since 1987, the proportion of Charter cases has never fallen below 21 percent and represents an average of 26 percent of all decisions. These figures are rapidly converging with those of the U.S.

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Supreme Court caseload, one-third of which has been made up by Bill of Rights cases in the post-Brown era (1954 to the present). Fourth, the SCC used the Charter to strike down a total of 36 federal and 32 provincial statutes in whole or in part during the first two decades of the Charter’s existence. For example, the Court’s decision in M v. H (1999), which stated that section 15(1) of the Charter entitled same-sex couples to sue for spousal support on the same basis as common-law opposite-sex couples, triggered the adoption of comprehensive legislative amendments to over sixty federal statutes to extend benefits and obligations to same-sex couples in wide variety of arenas. The overall record of a 16 percent rate of statute nullification (71 of 440 Charter cases) contrasts sharply with the Court’s previously restrained exercise of judicial review under the 1960 Bill of Rights. Under the latter, the Court struck down only one statute in twenty-two years (1960–1982).4 As F. L. Morton and Rainer Knopff note in their recent critique of judicial activism in Canada, if the nullification rate in the Charter era is calculated based not on all Charter challenges but only on those actually involving direct challenges to legislation, the rate of nullification is in fact over 30 percent.5 The rapid growth rate of judicial activism and rights jurisprudence in Canada, however, cannot be attributed solely to the enactment of the 1982 Charter. As will be shown in Chapter 2, the willingness of national political actors to transfer policy-making authority from the political sphere to the courts and the willingness of the judiciary to respond positively to demands for activism are important reasons for the expansion of judicial power in Canada during the last two decades. A few institutional factors in addition to the adoption of the Charter have facilitated the rise of judicial activism in Canada. First, in 1975, a statutory change shifted the bulk of the SCC’s docket from the “appeals by right” category to the “discretionary leave” category, thereby increasing the Court’s discretion over which cases it would hear. Currently, the Supreme Court justices, like their U.S. counterparts, have leverage in determining the scope and nature of their agenda. Second, like the United States, Canada has a decentralized model of judicial review in which the constitutionality of laws may be determined by ordinary judicial courts. Under this system, almost all courts (provincial, federal, or Supreme) have the power of judicial review of constitutionality. However, unlike the United States, judicial review in Canada is not limited to review within the context of concrete adversarial litigation. The reference procedure is a second way in which constitutional questions may be brought

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before the court. Thus, the very nature of judicial review in Canada provides a hospitable institutional environment for judicial activism. Third, over the past two decades, the SCC has begun to liberalize the rules of standing (locus standi) and to expand intervener (for example, amicus curiae) status.6 In 1981, the Court declared that individuals could be granted standing to challenge legislation simply by showing they had “a genuine interest in the validity of the legislation and that there [was] no other reasonable and effective manner in which the issue [might] be brought before the Court.”7 In 1983, the Canadian Supreme Court formulated new rules that gave attorneys general the automatic right to intervene in constitutional cases. These changes helped legislatures, judges, and rights advocacy groups alike to pursue the Charter’s judicialization capacity to its fullest. In sum, the introduction of the Constitution Act in 1982, together with the introduction of a number of institutional changes to the Canadian judicial review system, has ushered in a new era in constitutional law and politics in Canada. These changes have placed judicial activism and constitutional rights jurisprudence in Canada on equal footing with the post-Brown United States. And whereas Canada inherited the doctrines of parliamentary supremacy and judicial restraint from Britain, there is little doubt that in the Charter era Canada has moved closer to the United States in its judicialization of politics. In many respects, Canada has in fact surpassed the United States in terms of deference to the judiciary.

Israel, 1992 Like several other formerly British-ruled territories, Israel inherited the British common law tradition, with its strong emphasis on parliamentary supremacy. It thus remains without a written constitution or entrenched bill of rights contained in one document. Instead, a web of eleven “Basic Laws” serves as the formal core of Israeli constitutional law. In general, these Basic Laws do not take precedence over other legislation. Nevertheless, some core provisions of this set of laws are immune from manipulation by a simple parliamentary majority.8 Until 1992, the Basic Laws did not include an entrenched law protecting fundamental rights and liberties. As a result, in the pre-1992 era, the Israeli parliament (the Knesset) retained formal legislative powers that few parliaments in democratic countries (for example, in the United Kingdom and New Zealand) held during the same period. In the early 1990s, however, an ad hoc cross-party parliamentary coalition representing Israel’s intelligentsia (consisting primarily of Israel’s secu-

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lar Ashkenazi bourgeoisie) reacted to the continuous decline in its popular support by initiating and carrying out an institutional empowerment of the judiciary. This scheme was driven primarily by its supporters’ attempt to entrench their constituencies’ policy preferences and safeguard them from the vicissitudes of democratic politics. It enjoyed the active support of Israel’s economic elites and the legal profession, and the tacit support of the majority of Supreme Court judges. This initiative culminated in the 1992 enactment of two fundamental rights laws, Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation,9 as well as the amendment of Basic Law: The Government. The latter was the first law to be fully entrenched, followed by the entrenchment of Basic Law: Freedom of Occupation. The two new Basic Laws established the constitutional definition of Israel as a Jewish and democratic state, thus reemphasizing and formalizing the duality that had already been expressed in Israel’s Declaration of Independence, in article 7a of Basic Law: The Knesset, and in a series of Supreme Court landmark decisions.10 Like the Canadian Charter of Rights and Freedoms, both of Israel’s new Basic Laws protecting fundamental rights and liberties contain a limitation clause forbidding infringement of the declared rights “except by a statute that befits the values of the State of Israel, for a worthy purpose, and not exceeding what is necessary.”11 In 1994, two years after its enactment, Basic Law: Freedom of Occupation was amended by the Knesset in the spirit of the Canadian “notwithstanding” override clause to allow for future modifications by ordinary laws in the instance of an absolute majority of Knesset members declaring support for the amendment.12 Taken as a whole, these enactments paved the way for an active judicial review process in Israel by granting the Supreme Court the authority both to monitor Israel’s political arena closely and to hold unconstitutional primary legislation enacted by the Knesset. Although the two new human rights Basic Laws do not constitute an official bill of rights, they are widely understood to fulfill the functions of such a document. They protect the right of every citizen or resident of the state to engage in any occupation, profession, or business, as well as rights to property, due process of law, freedom of movement, life, personal freedom, privacy, and human dignity. It is generally agreed that the adoption of these two new laws represented a constitutional revolution in Israel. The Supreme Court of Israel’s (SCI) support of the new constitutional order did not remain merely at the declarative level. In November 1995, the Court released its historic ruling in the United Mizrahi Bank case—the “Israeli

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Marbury v. Madison,” as observers of the Israeli legal system have described it.13 Here, the SCI drew on the constitutional entrenchment of the right to property, as specified in article 3 of the Basic Law: Human Dignity and Liberty, virtually to invalidate—for the first time in Israel’s constitutional history—a Knesset law that intended to erase the heavy financial debts owed to major banks by collective agricultural settlements in Israel. Several banks filed a petition arguing that the new law was inconsistent with the property rights provisions of Basic Law: Human Dignity and Liberty. Sitting in a rare panel of nine judges, the Court declared that the property rights of creditors had constitutional priority over primary legislation enacted by the Knesset.14 The SCI used this occasion to firmly establish its power to declare unconstitutional acts and statutes that do not comply with the standards set out in the new Basic Laws. The majority of justices held that the two new Basic Laws had indeed ushered in a new era in the historic quest for a comprehensive constitutional catalogue of rights and active judicial review in Israel. They recognized that these laws had formal constitutional status and were therefore superior to any ordinary legislation.15 As in Canada, the impact of the new Basic Laws on rights-based litigation in Israel has been significant. During the period April 1992 to December 2002, Basic Law litigation accounted for approximately 11 percent (365 of 3,319) of the reported Supreme Court decisions. In 1995 alone, Basic Law litigation accounted for almost a fifth of all reported Supreme Court rulings. There has been a sharp increase in the use of “higher law” (primarily constitutional law, rights, and “natural justice” jurisprudence) for decisions by the SCI following the enactment of the new Basic Laws. Whereas in 1985 reported higher law cases accounted for 5 percent of the Court’s docket, the share of higher law cases more than quadrupled by 1997—five years after the 1992 constitutional revolution. While in 1992, the SCI dealt with eight new Basic Laws cases, it dealt with twenty-eight such cases in 1993 and fifty-five in 1995. If we accept that rights-based litigation activity indicates a judicialization of politics, there is little doubt that the trend in this direction is growing vigorously in Israel. Unlike the situation in Canada, mandatory appeals and appeals by right on decisions of lower instances and other tribunals form a significant component of the SCI’s agenda. In other words, the Court does not have control over a substantive portion of its docket. However, in its complementary capacity as the High Court of Justice, the SCI sits as a court of first instance in direct actions launched by individual stakeholders against public authori-

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ties as well as in matters where the Court considers it necessary to grant relief in the interests of justice and in matters that do not normally fall within the jurisdiction of any other court or tribunal. Originally, the Court demanded that a petitioner show possible harm to a direct and material personal interest. In 1988, however, the Court significantly liberalized the rules of standing pertaining to direct individual petitions, effectively recognizing the standing rights of public petitioners and lowering the barrier of nonjusticiability.16 In other words, sitting as the High Court of Justice, the SCI has extensive jurisdiction over Israel’s policy-making sphere. That said, the fact is that while standing rights and the Court’s jurisdiction in its two capacities have not undergone dramatic change over the past decade, the scope of political issues brought before the Court over this period has broadened significantly since 1992. This suggests that the 1992 constitutionalization was a major catalyst in bringing about the unprecedented judicialization of politics in Israel. However, the relatively broad standing rights and the fairly accessible High Court of Justice proceedings likely account for the immediacy of the impact of the new Basic Laws on Israel’s judicialization of politics.

New Zealand, 1990 As in the case of the British constitution, New Zealand’s constitution is not contained in any single document. Until recently, New Zealand was considered by political observers to be one of the last bastions of the Westminster system of government, with its embedded emphasis on parliament as the ultimate authority for the determination of legislation. Another powerful influence on New Zealand’s constitutional organization was the traditional British distrust of American-style judicial review and of fundamental rights and proclamations of social or state policy. In short, until the late 1980s, New Zealand’s constitution replicated the British parliamentary system and the British common law tradition in almost every respect. Not surprisingly, then, the introduction of the New Zealand Bill of Rights Act (NZBORA) in 1990 marked an abrupt change in the balance of power among the judicial, legislative, and executive branches of government. The preamble to the NZBORA declares that the act was adopted expressly to affirm, protect, and promote human rights and fundamental freedoms in New Zealand. It also affirms New Zealand’s commitment to the International Covenant of Civil and Political Rights (ICCPR). Though subject to some limi-

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tations, the bill itself expressly secures a whole range of rights, including the right to life and security of person; the right to be spared from torture or cruel or degrading punishment; freedom of thought, conscience, and religion; and freedom of speech, assembly, and movement. The act protects the rights of minorities as well as the rights of due process for alleged criminals— including access to legal aid and rights relating to arrest, detention, search, seizure, and a fair trial. In short, the NZBORA provides wide-ranging guarantees of human rights and makes a constitutional commitment to the protection and promotion of these rights. Unlike the Canadian Charter of Rights and Freedoms, the new Israeli Basic Laws, and the South African Bill of Rights, the NZBORA is an ordinary statute that does not formally empower the courts to nullify legislation inconsistent with its provisions (section 4 of the bill). Nevertheless, the operational provisions of the bill were designed to reduce the likelihood of legislation unreasonably infringing the rights protected by the NZBORA. In practice, they provide the basis for active judicial review. Section 5 stipulates that the rights and freedoms contained in the bill are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 6 of the bill, which was described by New Zealand’s Chief Justice as a “key and strong section” and “a weapon of justice of an effective nature and reach,” requires the courts to interpret an ambiguous law in a manner consistent with the act.17 In addition, section 7 of the NZBORA requires the Attorney-General to advise the House of Representatives whenever he or she believes that any provision in a bill introduced to parliament would infringe a right. This procedure has been invoked several times since 1990, generally (with only one exception) having the effect of preventing the provision being enacted. The application and enforcement provisions of the NZBORA were complemented by the establishment in 2001 of the Human Rights Review Tribunal. This tribunal is authorized to declare laws “inconsistent” with the right to freedom from discrimination affirmed by the NZBORA and by the Human Rights Act 1993; inconsistencies must be reported to the parliament, thereby bringing pertinent government action under the purview of these two laws.18 Taken together, these provisions have established a new model of judicial review in New Zealand, which I call the preferential model. This “compromise” model of judicial review has established itself over the past decade in several common law countries with a long tradition of parliamentary supremacy. It gives preference to legislation or court judgments

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that are consistent with the constitutional catalogue of rights and the standards set by international human rights covenants over legislation and judgments that are not, and instructs legislators to avoid enacting laws that contradict, prima facie, constitutional provisions protecting basic rights. This model enables limited judicial review while maintaining the parliamentary tradition of these countries. In spite of the fact that the NZBORA does not allow for full-scale judicial review, the New Zealand Court of Appeal (NZCA) has granted it a de facto elevated constitutional status. In its first substantive NZBORA decision (Flickinger, 1991), the NZCA declared that a generous legal interpretation should be given to section 6 of the NZBORA (which requires that courts interpret ambiguous laws in a manner consistent with the NZBORA).19 In a landmark decision in 1994, the Court observed that lack of entrenchment and constitutional status “makes no difference to the strength of the Bill of Rights where it is to be applied.”20 Accordingly, it went on to minimize the applicability of section 4 of the bill (the “ordinary statute” clause).21 In the spirit of this decision, the Court drew increasingly on section 6 of the NZBORA to overrule administrative acts in a wide array of public policy areas that were inconsistent with the provisions of the bill and other constitutional principles. In the five-year period 1997–2002 alone, central economic issues (such as the export and marketing of New Zealand’s agricultural products), issues pertaining to zoning in the context of establishing the new Mixed Member Proportional Representation (MMP) electoral system, and even questions of political defamation among national political leaders, have all been susceptible to “section 6 scrutiny” by the NZCA. Furthermore, in its recent landmark ruling in Pora (2001), the Court drew on section 6 of the NZBORA to virtually repeal—for the first time in New Zealand’s constitutional history—legislation that retrospectively increased the minimum nonparole period of imprisonment for murder.22 Another NZBORA-based mechanism of judicial review developed by the NZCA has been the importation of the terms of international human rights covenants into domestic law. Traditionally, international treaties and covenants in common law countries have been held to be unenforceable until they are expressly enacted in domestic law. The NZBORA, however, was explicitly intended “[to] affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.”23 Since the enactment of the NZBORA, citations of customary and written international law by the NZCA, as well as references to the decisions of international tribunals, have

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significantly increased.24 Scholars of New Zealand’s constitutional law have observed that the NZBORA has thus internationalized New Zealand’s rights jurisprudence and imbued it with more explicitly ethical content. Not surprisingly, then, the NZBORA has come to be recognized by scholars as finally establishing an effective guarantee for the protection of fundamental rights and liberties in New Zealand. Five years after the NZBORA came into effect, Sir Ivor Richardson of the NZCA declared that “[f]uture historians may recognize the Bill of Rights as one of the most important statutes ever enacted in New Zealand.”25 The fact that the NZBORA is a nonentrenched law coupled with New Zealand’s British-style tradition of judicial restraint has meant that the judicialization of politics in New Zealand has occurred on a more moderate scale than in the other three polities in this study. Nonetheless, from the quantitative perspective, the impact of this act on the judicialization of politics in New Zealand has been significant. The use of “higher law” foundations for decisions by the NZCA following the enactment of the NZBORA in 1990 has sharply increased. Whereas constitutional law cases accounted for only a small fraction of the Court’s agenda in 1983 and 1985 (4 percent and 5 percent respectively), the share of reported higher law cases increased to 17 percent in 1993 and to 20 percent in 1997. Because the number of decisions based on non-NZBORA constitutional law (primarily cases dealing with the Treaty of Waitangi) has remained almost constant since the mid1980s, the growth in all higher law cases is attributable to the enactment of the NZBORA. Since 1990, Bill of Rights litigation has accounted for approximately 9 percent (233 of 2,587) of the reported Court of Appeal and High Courts decisions. In 1995 alone, 16 percent of the NZCA’s reported judgments were NZBORA cases. The increase in judicial review cases has also been significant: these made up approximately 5 percent of recorded decisions by the Court since 1990. Unlike its Canadian counterpart, the NZCA’s docket consists mainly of appeals by right. The appearance of NZBORA-based litigation on the Court’s agenda and its impact on the judicialization of politics in New Zealand were therefore immediate.

South Africa, 1993–1996 Until the late 1980s, the South African judiciary was ineffective at best in its hesitant efforts to challenge the apartheid regime. Since the termination

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of the apartheid era and the establishment of a new constitutional order in South Africa, however, the South African Constitutional Court (SACC) has become a major forum for dealing with South Africa’s dark political past and, one hopes, brighter political future. The trend toward the judicialization of politics following the constitutionalization of rights and the fortification of judicial review has played a significant role in creating the new South Africa. True, South Africa’s dramatic and long-awaited transition to democracy is still in the formative stages. This prevents us from reaching any definitive conclusions regarding the impact of constitutionalization on this country’s political sphere. Nevertheless, signs of excessive legislative deference to the judiciary, along with the process of judicializing most fundamental political challenges, can already be seen in postconstitutional South Africa. The formal aspects of the constitutional revolution in South Africa have been widely documented. In February 1990 the government lifted the ban on the African National Congress (ANC)—an act that brought white elites and representatives of the black majority into public engagement for the first time. The Convention for a Democratic South Africa (CODESA) was launched in December 1991 to negotiate a democratic transition, but these negotiations collapsed in mid-1992, followed by escalating violence and mass social upheaval. In 1993, the negotiating parties entered a series of bilateral negotiations that yielded an agreement on a two-phase transition to democracy. The first stage involved the drafting of the 1993 interim constitution, which came into force in April 1994. The second stage involved the drafting of the 1996 final constitution by the Constitutional Assembly and its approval by the Constitutional Court. The interim constitution marked the legal foundation for the new South Africa. Its enactment coincided with the inauguration of South Africa’s first democratically elected government in May 1994. It remained in place until the final constitution came into force in February 1997. The interim constitution was the first instrument to establish a constitutional system for governing the country under a banner of national unity; likewise, it mapped out a process for drafting the final constitution in the wake of the first democratic elections. It included a chapter on fundamental rights and established a new regime of active judicial review in South Africa, epitomized by the new Constitutional Court, which was inaugurated by President Nelson Mandela in February 1995. The Bill of Rights contained in the 1993 interim constitution provided for an array of classic (so-called first-generation) indi-

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vidual freedoms. It protected the right to equality, life, and privacy; procedural due process; freedom of religion, thought, expression, assembly, and association; freedom of movement and occupation; political rights; and the right to fair labor practices, including the right to form and join labor unions, to bargain collectively, and to strike. The final constitution of 1996 reaffirmed the interim constitution’s commitment to an entrenched catalogue of rights. Section 7, the first provision in the final constitution’s chapter on fundamental rights (Chapter 2) states that the Bill of Rights “is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom . . . [T]he state must respect, protect, promote, and fulfill the rights in the Bill of Rights.” The 1996 Bill of Rights incorporates most of the provisions of the transitional Bill of Rights and expands its boundaries to include a commitment on the part of the government to take all reasonable steps within its available resources to ensure the provision of certain subsistence social rights. The 1996 Bill of Rights also protects language and education group rights. Most provisions of the 1996 Bill of Rights are amenable to revision or revocation only by a two-thirds vote of the National Assembly (in some cases a three-quarters vote), as well as the support of at least six provinces. The rights protected by the 1996 Bill of Rights are subject to a general limitations clause, section 36(1), which is largely modeled on similar provisions in other international human rights texts and national bills of rights (such as section 1 of the Canadian Charter). The new SACC is comprised of eleven judges, who may serve for a nonrenewable term of twelve years but must retire at the age of seventy. Under the 1996 constitution, the Court’s jurisdiction is restricted to constitutional issues; it extends to the constitutionality of any national or provincial statute, regulation, ordinance, or administrative action, as well as to common law or customary law principles. It has exclusive jurisdiction with regard to the adjudication of disputes between organs of state in national and provincial spheres; the constitutionality of any amendment to the constitution, a priori review of any pending national or provincial legislation, and certification of any provincial constitution; and the determination of whether parliament or the President has failed to fulfill a constitutional obligation. As will be seen in subsequent chapters, the SACC immediately became one of the major arenas for settling questions of transition to and consolidation of multiracial democracy in the new South Africa. During the first eight years of its existence (February 1995 to December 2002), the SACC dealt

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with 161 cases, most of which were of crucial constitutional significance. Bill of Rights cases account for 53 percent (85 of 161) of all reported SACC cases; landmark federalism and separation of powers judgments make up an additional 25 percent (40 of 161) of the SACC caseload. From the Court’s critical appraisal of the new constitution to its outlawing of the death penalty, in present-day South Africa there have been very few salient political controversies not contemplated by the Court. In sum, the adoption of constitutional catalogues of rights in Canada, New Zealand, Israel, and South Africa ushered in a new constitutional era in these countries. In each case, the constitutionalization of rights and the fortification of judicial review marked a shift from traditional principles of parliamentary sovereignty toward a new regime of constitutional supremacy and active judicial review. Judicial empowerment through the constitutionalization of rights and the establishment of judicial review may shed light on an often-overlooked aspect of constitutional politics: the political origins of constitutionalization. Although the adoption of a constitutional catalogue of rights provides the necessary institutional framework for the judicialization of politics, it is certainly insufficient in and of itself to generate the high level of judicialized politics seen in present-day Canada, New Zealand, Israel, and South Africa. How then can the increasingly common transfer of power from majoritarian policy-making arenas to national high courts through constitutionalization be explained? The following chapters address this frequently overlooked puzzle of the political origins of constitutionalization.

CHAPTER

2

The Political Origins of Constitutionalization

The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. U.S. Supreme Court Justice Robert H. Jackson, West Virginia State Board of Education v. Barnette (1943)

Conventional Theories of Constitutional Transformation Extant theories of constitutional transformation may be grouped into three major categories: evolutionist theories, functionalist explanations, and institutional economics models. Most scholars of constitutional politics agree that there is a strong correlation between the recent worldwide expansion of democracy and the contemporaneous global expansion of judicial power. Indeed, with a few notable exceptions (such as Egypt and Pakistan, which maintain relatively autonomous and influential national high courts), the expansion of judicial power has taken place primarily in democratic polities. Over the past three decades, three major waves that established and consolidated democracy took place: in Southern Europe in the late 1970s; in Latin America in the 1980s; and in Central and Eastern Europe in the early 1990s. These movements brought with them an expansion of judicial power in most of these new democracies, primarily through the constitutionalization of rights and the establishment of relatively autonomous judiciaries and supreme courts armed with judicial review practices. Indeed, by its very nature, the existence of a democratic regime implies the presence of a set of procedural governing rules and decision-making processes to which all political actors are required to adhere. The persistence 31

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and stability of such a system in turn requires at least a semiautonomous, supposedly apolitical judiciary to serve as an impartial umpire in disputes concerning the scope and nature of the fundamental rules of the political game. Similarly, judicial review is a prerequisite of viable democratic governance in multilayered federalist countries (for example, the United States, Germany, Canada, India, and Australia), and in emerging supranational polities (for example, the European Union). Moreover, the transition to and consolidation of democracy entails the establishment of some form of separation of powers between the major branches of government and between the central and provincial or regional legislatures. In short, the existence of an independent and active judiciary appears to be a necessary condition for, and an inevitable by-product of, the proliferation of democracy during the second half of the twentieth century. The expansion of judicial power has indeed been associated with political and economic liberalization in postauthoritarian or quasi-democratic polities. However, the democratic proliferation thesis has certain shortcomings. The widespread transition to democracy cannot provide a coherent explanation for the significant variations in judicial power among new democracies. What is more, the expansion-of-democracy thesis fails to account for the significant variations in the timing, scope, and nature of the expansion of judicial power among established democracies. The evolutionist approach to legal change stresses the inevitability of judicial progress and the importance of invisible and endogenous macrofactors in explaining the expansion of judicial power through constitutional reform. Some evolutionist theories suggest that legal development is linked to a polity’s passage from one socioeconomic stage to another. Early legal transformation theorists, such as Adam Smith, argued that development of genuine contract and property concepts could only occur alongside the consolidation of agriculture. More recent evolutionist theories of legal transformation emphasize cultural variations among societies as a determinant of legal development.1 Other theories positing inevitable judicial progress and legal development by stages have also emerged within more general theories of economic and political development.2 The most widely held thesis associated with this approach defines the trend toward the constitutionalization of rights and the fortification of judicial review as an inevitable by-product of a new and near-universal prioritization of human rights in the wake of World War II.3 According to this view, EVOLUTIONIST THEORIES.

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the presence of an effective, written bill of rights is the crowning proof of constitutional development. The greatest proof of democracy’s triumph in our times, it is argued, stems from the increasing acceptance and enforcement of the idea that democracy is not equivalent to majority rule; in a real democracy, minorities should possess legal protections in the form of a written constitution unchangeable even by parliament. According to this view, a constitutional bill of rights is part of fundamental law. Judges, who are removed from the pressures of partisan politics, are responsible for enforcing such rights through active judicial review. The conception of constitutional transformation that stems from the social contract school of thought views constitutions and judicial review as procedural devices that free and equal people agree to voluntarily impose upon themselves to protect their equal, basic rights.4 Realizing the occasional temptation of popular majorities to adopt measures that infringe on the basic rights of some members of the polity while not having an a priori indication of whose rights might be restricted by such potential measures, members of a polity might rationally choose to entrench the fundamental rules of the political game and the basic rights of its participants by granting a nonlegislative body that is insulated from majoritarian politics the power to review legislation. In so doing, members of the polity (or its constituent assembly) provide themselves with precautions, or precommitments, against their own imperfections or harmful future desires, and tie themselves into their initial agreement on the basic rules and rights that specify their sovereignty.5 Proponents of this approach often regard the constitutionalization of rights and the establishment of judicial review as reflecting polities’ and politicians’ genuine “maturity” and deep commitment to a universal notion of human rights. In its more empirically grounded variant, the evolutionist approach regards the constitutionalization of rights and the establishment of judicial review as fortifying the separation of powers among the executive, the legislature, and the judiciary. According to this view, confidence in technocratic government and planning has waned, and from this has grown a consequent desire to restrict the discretionary powers of the state. The result has been a diffusion of judicial power over the past several decades.6 In its countermajoritarian guise, this approach stresses that by increasing “access” for special interest groups, the constitutionalization of rights and the establishment of active judicial review promote the diffusion of political power, add veto mechanisms, restrict the maneuvering of policymakers, and

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limit the power of majorities in legislatures.7 According to this view, independent courts, especially those armed with judicial review practices, not only monitor untrustworthy executive and legislature bodies but also facilitate the political representation of diffuse but well-organized minorities. This representation creates opportunities for certain groups to participate in policy-making that might otherwise be closed to them in majoritarian parliamentary politics.8 Proponents of this approach therefore regard the constitutionalization of rights and the fortification of judicial review as the outcome of successful efforts by well-organized minority groups to protect themselves against the systematic threat of majoritarian political whims and to increase their impact on public policy outcomes. E X P L A N A T I O N S . Like the evolutionist approach, functionalist (or systemic need-based) explanations cast constitutional transformation as an organic response to pressures within the political system itself. These explanations emphasize the absence of human agency and the ineluctability embedded in any legal progress. They also recognize particular ways in which legal innovations can follow from demonstrations of social need. The best-known functionalist explanations for legal change focus on increases in systemic efficiency as the end products of such change. Some institutional economists, for example, posit a systemic efficiencydriven process of legal transformation, in which inefficient legal rules would more likely be litigated while new, efficient rules would persist once established.9 Equivalent arguments have been made for legal changes in tort law and contract law, and even in the legal organization of a society to allow for modes of production that increase the rate of return on capital. Douglass North and Robert Thomas’s analysis of the demise of feudalism in Europe illustrates the logic of this argument. During the Middle Ages, feudalism remained stable as long as land remained the scarce resource. Although lords could offer more rights to laboring serfs, it was not in their interest to do so. Following the Black Death, however, labor became the scarce resource. Lords facing competition for labor for the first time attempted to lure workers by offering them more attractive working conditions. This in turn stimulated labor force mobility, thus destroying feudalism in Western Europe.10 In its most common version, the functionalist approach suggests that the expansion of judicial power derives from a structural, organic political problem such as a weak, decentralized, or chronically deadlocked political system. The less functional the political system is in a given democracy, the greater the likelihood of expansive judicial power in that polity.11 Constitu-

FUNCTIONALIST

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tionalization is seen as the best possible way of overcoming political ungovernability and ensuring the unity and “normal” functioning of such polities.12 In its “consociational” variant, the needs-based explanation of constitutional transformation emphasizes political necessity in the development of mechanisms such as mutual veto and proportional representation, characterizing them as inevitable constitutional solutions that allow fragmented polities to function. According to this logic, expansion of judicial power in polities facing political polarization is the only institutional mechanism that enables opposition groups to monitor distrusted politicians and decisionmakers. The explanation commonly given for the unprecedented judicialization of Israeli politics in recent years provides a perfect illustration of the idea that systemic needs are the main cause of judicial empowerment. In a marked change from the norms of Israel’s early decades of independence, the judiciary, in particular the Israeli Supreme Court, has recently become one of the most significant actors in Israel’s political arena. From the early 1990s onward, the Court has increasingly exercised its power at the expense of politicians and administrators. The Court has gained the authority to review primary legislation, political agreements, and administrative acts; it monitors almost every aspect of public life in Israel. Israeli society is characterized by deep social and cultural cleavages13 as well as by a political deadlock between the two major electoral blocs dating back to the late 1970s. According to the systemic needs explanation of judicial empowerment, this structural inability to deal with the social and cultural rifts besetting Israeli society and the stalemate faced by Israel’s majoritarian politics corroded the authority of the Knesset and the government. This in turn led to the systemic dependency of the Israeli polity on a dominant, seemingly apolitical body of professional decision-makers: the Supreme Court judges.14 Another functionalist (or systemic needs-based) explanation emphasizes the general proliferation in levels of government and the corresponding emergence of a wide variety of semiautonomous administrative and regulatory state agencies as the main driving forces behind the expansion of judicial power over the past few decades. According to this thesis, independent and active judiciaries armed with judicial review practices are necessary for efficient monitoring of the ever-expanding administrative state. Moreover, the modern administrative state embodies notions of government as an active policy-maker, rather than a passive adjudicator of conflicts. The state therefore requires an active, policy-making judiciary.15 Along the same lines, scholars of judicial politics view the rapid growth

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of supranational judicial review in Europe as an inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member-states in an era of converging economic markets.16 A similar standardization rationale may explain what may be called the incorporation scenario of constitutional reform. In this view, the constitutionalization of rights and the establishment of judicial review in member-states of supranational economic and political regimes (the European Union, for example), as well as signatory states to transnational trade and monetary treaties, occurred through the incorporation of international and trans- or supranational legal standards into domestic law. Recent examples of this scenario of constitutionalization include the incorporation of the European Convention on Human Rights provisions into Danish law in 1993, into Swedish law in 1995, and into British law through the enactment in Britain of the Human Rights Act 1998—the first rights legislation introduced in the United Kingdom in three hundred years. While the constitutional evolution and functionalist theories just outlined account for some factors involved in the development of juristocracy, none analyzes the specific political vectors behind any of the constitutional revolutions of the past several years in a comparative, systematic, and detailed way. Moreover, none of these theories accounts for the precise timing of constitutional reform. If we apply these theories to a concrete example, they consistently fail to explain why a specific polity reached its most advanced stage of judicial progress at a specific moment and not, say, a decade earlier. Like the democratic proliferation thesis, both the constitutionalization in the wake of World War II thesis and its corresponding constitutionalization as precommitment argument fail to account for the significant variations in the timing, scope, and nature of constitutionalization. It is hard to see, for example, why members of the Canadian polity in 1982, or members of the Israeli polity a decade later, chose to take steps against their own imperfections in the year they did and not earlier or later. What is more, the constitutionalization as precommitment argument is based on a set of hypothetical and speculative presuppositions concerning the origin of constitutions and judicial review that at the very best provide an ex post facto normative justification for their adoption. Moreover, if a given polity is indeed structurally ungovernable, it is difficult to see how the successful entrenchment of a bill of rights and the establishment of judicial review in that polity

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can be explained, given the failed earlier attempts to enact a constitutional catalogue of rights. Furthermore, both legal evolution and systemic needsbased theories of judicial transformation tend to ignore human agency and the fact that legal innovations require legal innovators—people who make choices as to the timing, scope, and extent of legal reforms. Both explanations overlook the crucial self-interested intervention by political powerholders who are committed to judicial expansion in an attempt to shape the institutional setting to serve their own agendas. INSTITUTIONAL ECONOMICS MODELS. Another utilitarian approach—the institutional economics-derived theory of constitutional transformation—sees the development of constitutions and judicial review as mechanisms to mitigate systemic collective-action concerns such as commitment, enforcement, and information problems. One such explanation sees the development of constitutions and independent judiciaries as an efficient institutional answer to the problem of “credible commitments.”17 Political leaders of any independent unit want to promote sustainable long-term economic growth and encourage investment that will facilitate the prosperity of their polity. Two critical preconditions for economic development are the existence of predictable laws governing the marketplace and a legal regime that protects capital formation and ensures property rights. The entrenchment of constitutional rights and the establishment of independent judicial monitoring of the legislative and executive branches are seen as ways of increasing a given regime’s credibility and enhancing the ability of its bureaucracy to enforce contracts, thereby securing investors’ trust and enhancing their incentive to invest, innovate, and develop. Indeed, as Max Weber noted, the fundamental building block of every successful capitalist market is a secure “predictability interest.”18 Without this, potential investors lack the incentive to invest. Scholars have shown how entrenched legal rights that enhance investors’ trust have led to economic growth in various historical contexts. Douglass North and Barry Weingast, for example, have illustrated how limitations on rulers’ power in early capitalist Europe increased legal security and predictability, thereby allowing certain polities to borrow capital from external lenders, who were protected by law from the seizure of their capital.19 More recent empirical studies have established a statistical link between the existence of institutional limitations on government action (rigid constitutional provisions and judicial review, for example) and rapid economic growth.20

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A second institutional economics explanation suggests that judicial review may constitute an efficient “fire alarm” mechanism for monitoring the bureaucracy.21 Legislators routinely delegate discretion over public policy programs to bureaucrats but must try to ensure that these bureaucrats implement the programs as they were intended. Investments in measures that enhance judicial independence are accordingly interpreted as efforts by executive branch leaders to avoid the high costs of constant central supervision of bureaucratic agencies (or a “police patrol” mechanism). Adopting a decentralized “fire alarm” monitoring model allows those who feel they have been treated unfairly to sue through the courts. In a similar vein, recent studies have emphasized the utility of judicial review as a mechanism for conveying information to legislatures about judicial policy preferences vis-àvis legislative policy preferences as well as information concerning the actual effects of legislation.22 The information-conveying function of judicial review is likely to increase in cases of a priori, abstract judicial “preview” such as that exercised by the French Conseil Constitutionnel or by the Canadian Supreme Court in the reference procedure.23 Even if the constitutionalization of rights and the establishment of judicial review do indeed mitigate problems of information, commitment, and enforcement, as suggested by these institutional-economics-driven explanations for judicial empowerment through constitutionalization, however, these explanations fail to explain how prosperous democratic polities managed to successfully address commitment and enforcement problems prior to the establishment of judicial review. Nor do they demonstrate why a certain polity would choose to adopt such efficient mechanisms at a particular point in time.

Thinking Critically about the Political Origins of Constitutionalization: The Strategic Approach and the Hegemonic Preservation Thesis A realist, strategic approach to judicial empowerment focuses on various power-holders’ self-interested incentives for deference to the judiciary. It makes four preliminary assumptions. First, legislative deference to the judiciary and judicial empowerment through constitutionalization do not develop separately from the concrete social, political, and economic struggles that shape a given political system. Indeed, the expansion of judicial power is an integral part and an important manifestation of those struggles and

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cannot be understood in isolation from them. Second, when studying the political origins of constitutionalization (as well as the political origins of other institutional reforms), it is important to take into account events that did not occur and the motivation of political power-holders for not behaving in certain ways. In other words, the political origins of constitutional reform cannot be studied in isolation from the political origins of constitutional stalemate and stagnation. Third, political and legal institutions produce differential distributive effects: they privilege some groups and individuals over others. Other variables being equal, prominent political, economic, and judicial actors are therefore likely to favor the establishment of institutional structures most beneficial to them. And fourth, because constitutions and judicial review hold no purse strings and have no independent enforcement power but nonetheless limit the institutional flexibility of political decisionmakers, the voluntary self-limitation through the transfer of policy-making authority from majoritarian decision-making arenas to courts seems, prima facie, to run counter to the interests of power-holders in legislatures and executives. Unless proven otherwise, the most plausible explanation for voluntary, self-imposed judicial empowerment is therefore that political, economic, and legal power-holders who either initiate or refrain from blocking such reforms estimate that it will serve their interests to abide by the limits imposed by increased judicial intervention in the political sphere. Political power-holders may profit from an expansion of judicial power in a number of ways. First, from the politicians’ point of view, delegating policy-making authority to the courts may be an effective means of reducing decision-making costs as well as shifting responsibility, thereby reducing the risks to themselves and to the institutional apparatus within which they operate. If delegation of powers can increase credit and/or reduce blame attributed to the politician as a result of the policy decision of the delegated body, such delegation can be beneficial to the politician.24 The removal of policymaking power from legislatures and executives and its investiture in courts may become attractive for political power-holders when disputes arise that they consider undesirable as open public debates, primarily because they present no-win political dilemmas (such as the dispute over abortion policy in the United States, the debate over same-sex marriage in Canada, or the question of “who is a Jew” in Israel). As Mark Graber and others have shown, ruling national coalitions in the United States have been inclined to defer to the U.S. Supreme Court primarily when they have reached a political deadlock, faced a no-win decision, or have been unwilling or unable to

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settle contentious public disputes in the political sphere. Deference to the judiciary, in other words, is derivative of political, not judicial, factors.25 Second, when politicians seek to gain public support for contentious views by relying on national high courts’ public image as professional and apolitical decision-making bodies, or when they regard public disputes in majoritarian decision-making arenas as likely to put their own policy preferences at risk, diverting responsibility to the courts may become an attractive option. The threat of losing grip on pertinent policy-making processes and outcomes may be a strong driving force behind attempts to transfer power to courts. Accordingly, a strategic, political-power-oriented explanation for voluntary, self-imposed judicial empowerment through the constitutionalization of rights and the establishment of judicial review suggests that political power-holders who either initiate or refrain from blocking such reforms estimate that it enhances their absolute or relative political power vis-à-vis rival political actors. Political actors who voluntarily establish institutions that appear to limit their institutional flexibility (such as constitutions and judicial review) may assume that the clipping of their wings under the new institutional structure will be compensated for by the limits it might impose on rival political elements. In short, those who are eager to pay the price of judicial empowerment must assume that their position (absolute or relative) would be improved under a juristocracy. Such an understanding of judicial empowerment through constitutionalization as driven primarily by strategic political considerations may take a “thin” or a “thick” form. The thin version employs party-based “electoral market” logic to explain judicial empowerment. In their seminal work of 1975, William Landes and Richard Posner argued that, other variables being equal, legislators favor the interest groups from which they can elicit the greatest investment through lobbying activities. A key element in maximizing such investment is the ability of legislators to signal credible long-term commitments to certain policy preferences. An independent judiciary’s role in this regard is complementary to parliamentary procedural rules—it increases the durability of laws by making changes in legislation more difficult and costly. A judiciary that is overtly subservient to a current legislature (or expressly biased against it) can nullify legislation enacted in a previous session (or in current legislation), thereby creating considerable instability in legal regimes. In such legally unstable settings, selling legislation to powerful interest groups may prove difficult from the politicians’ point of view. The potential threat

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of instability or loss of mutual profits and power may therefore result in support for judicial empowerment vis-à-vis legislatures.26 Observing variations in the degree of judicial independence among industrial democracies, Mark Ramseyer develops Landes and Posner’s argument into an “electoral market” model, which suggests that judicial independence correlates to the competitiveness of a polity’s party system.27 When a ruling party expects to win elections repeatedly, the likelihood of judicial empowerment is low. Since rational politicians want long-term bargains with their constituents, they lack the incentive to support an independent judiciary when their prospects of remaining in power are high. However, when a ruling party has a low expectation of remaining in power, it is more likely to support an independent judiciary to ensure that the next ruling party cannot use the judiciary to achieve its policy goals. In other words, under conditions of electoral uncertainty, the more independent courts (or other semiautonomous regulatory agencies) are, the harder it will be for the successive government to reverse the policies of the incumbent government.28 Therefore, in Japan, for example (where a single party ruled almost uninterruptedly for more than four decades following World War II), judicial independence is weaker than it is in countries where there is an acknowledged risk that the party in power might lose control of the legislature in each election. The electoral market thesis is quite insightful when it is used to analyze the politics of constitution-making processes during periods of regime change and political transition. Judicial review, argues Tom Ginsburg, is a solution to the problem of uncertainty in constitutional design. By providing “insurance” to prospective electoral losers, judicial review can facilitate transition to democracy.29 As Pedro Magalhaes notes, “When the political actors that dominate the constitution-making process expect to lack control over legislatures in the future, judicial review of legislation may emerge as an institution designed to protect their interests.”30 The transition to democracy in Spain and Portugal in the mid-1970s, for example, was characterized by lack of a single core of postauthoritarian political power, thereby leading to the rapid adoption of strong constitutional review mechanisms. In Greece, by contrast, the postauthoritarian constituent process was dominated by a single party (Constantine Karamanlis’s New Democracy), which enjoyed over 70 percent of the seats in the assembly and did not have to worry about elections following the approval of the new constitution. “The result,” notes Magalhaes, “was that Greece, with similar authoritarian and

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civil law legacies as Spain and Portugal, and involved in an almost simultaneous democratic transition, remained the only southern European democracy without constitutional review of legislation.”31 The same rationale may explain the substantial increase in the power and autonomy of the Supreme Court of Mexico in 1994 as a calculated attempt by the then ruling party (Partido Revolucionario Institucional, or PRI) to lock in its historic influence over Mexico’s political sphere before the PRI’s increasingly popular political rivals (and eventually winners of the 2000 presidential election) were able to gain control over the country’s crucial policy-making arenas.32 In a similar vein, the literature on the political origins of other relatively autonomous agencies (such as central banks, for example) suggests that the autonomy of these agencies in advanced industrial countries is simply a function of government politicians’ time horizons. The longer the horizon of their time in power, the more government politicians will desire the greatest possible control over economic policy. This implies a consequent loss of independence for the agency in question. By this logic, short horizons or forthcoming elections can lead politicians who fear losing their office to increase central bank independence in order to limit the future options of their political opponents.33 While the electoral market (“thin”) strategic explanation contributes significantly to an understanding of the conditions under which judicial empowerment is more likely to occur, especially at times of political transition, it still does not provide a full understanding of constitutionalization and the accompanying emergence of judicial review. For one, this model does not provide a full explanation for the rise of judicial power in the premier case of modern constitutionalization—the pre-electoral market, late-eighteenthcentury United States. More importantly, this model is based on a somewhat simplistic perception of politics as limited to the partisan electoral market. Such a minimalist understanding of politics does not capture the full picture of constitutional politics in ethnically or culturally divided “new constitutionalism” polities (e.g., Canada or South Africa), or in countries such as Israel, India, Egypt, or Turkey (to name but a few examples) where the fundamental tension between secularist, cosmopolitan values and religious particularism has been at the forefront of political struggle for decades. The political hegemony and cultural propensities of ruling elites and the urban intelligentsia in these and other fragmented polities have been constantly challenged by alternative worldviews, belief systems, and policy preferences. These nuanced and complex political struggles cannot be easily reduced to a thin view of politics as dominated by risk-averse politicians oper-

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ating under conditions of political uncertainty at times of regime change. Third, the electoral market model ignores influential economic stakeholders’ and judicial elites’ own contribution to the constitutionalization of rights and the establishment of judicial review. As will be discussed in more detail in the next chapter, the 1992 constitutional reform in Israel was initiated and carried out by an ad hoc crossparty coalition of leading Knesset members. Those supporting this reform included not only long-standing rivals from the country’s two largest political parties—the Likud (Unity) party, which was in power in 1992, and the Labor party, which was the main opposition party in 1992—but also representatives of the leftist opposition party Meretz and parliament members who represented the policy preferences of the secular bourgeoisie. Clearly, this example demonstrates that the reductive partisan competition model fails to account for certain social and cultural forces. A more nuanced explanation of the political origins of constitutionalization is necessary if we are to fully understand judicial empowerment in countries where it has occurred. Our explanation must ignore neither agency nor the role of economic and judicial elites, and it must reflect the political reality in internally fragmented, rule-of-law polities in a “thick” way that captures a broader picture than the mere electoral market aspect of politics. Such a “thick” strategic explanation, which I term the hegemonic preservation thesis, suggests that judicial empowerment through constitutionalization is best understood as the by-product of a strategic interplay between three key groups: threatened political elites who seek to preserve or enhance their political hegemony by insulating policy-making processes from the vicissitudes of democratic politics; economic elites who may view the constitutionalization of certain economic liberties as a means of promoting a neoliberal agenda of open markets, economic deregulation, antistatism, and anticollectivism; and judicial elites and national high courts that seek to enhance their political influence and international reputation. In other words, strategic legal innovators—political elites in association with economic and judicial elites who have compatible interests—determine the timing, extent, and nature of constitutional reform. To be sure, demands for constitutional change often emanate from various groups within the body politic. However, unless hegemonic political and economic elites, their parliamentary representatives, and the judicial elite envisage absolute or relative gain from a proposed change, the demand for that change is likely to be blocked or quashed. When facing possible threats to their policy preferences in majoritarian

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decision-making arenas (such as a growing influence on the part of historically disenfranchised or underrepresented groups and interests in democratically elected policy-making bodies), elites who possess disproportionate access to, and influence over, the legal arena may initiate a constitutional entrenchment of rights in order to transfer power to supreme or constitutional courts. Typically, such proconstitutionalization elites are made up of the urban intelligentsia, the legal profession, and the managerial class. They often represent historically hegemonic enclaves of political and economic power-holders, who tend to adhere to an agenda of relative cosmopolitanism, open markets, formal equality, and Lockean-style individual autonomy. Based on the essential tendency of classic civil liberties to protect individual freedoms, as well as on the courts’ record of adjudication and justices’ ideological preferences, these elites can safely assume that their policy preferences will be less effectively contested. This type of hegemonic preservation through the constitutionalization of rights or an interest-based judicial empowerment is likely to occur when the judiciary’s public reputation for professionalism, political impartiality, and rectitude is relatively high; when judicial appointment processes are controlled to a large extent by hegemonic political elites; and when the courts’ constitutional jurisprudence predictably mirrors the cultural propensities and policy preferences of these hegemonic elites. Under such conditions, judicial empowerment through the constitutionalization of rights and the establishment of judicial review may provide an efficient institutional means by which political elites can insulate their increasingly challenged policy preferences against popular political pressure, especially when majoritarian decision-making processes are not operating to their advantage. This counterintuitive argument has striking parallels in works concerning the political origins of empowerment of other semiautonomous institutions, such as central banks, environmental regulatory bodies, and supranational treaties and tribunals. Variances in the capacities of early central banking institutions in developing countries, for example, were shaped by the changing financial interests of those in a position to voluntarily delegate authority to central banks: government politicians and private banks.34 Similarly, varying degrees of support by existing firms toward proposed environmental regulatory policies can be explained by the different limits and costs such policies impose upon new firms. Because environmental regulation typically imposes more stringent controls on new firms, it restricts entry into the marketplace and potentially enhances the competitive position of existing firms.35

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A similar rationale for judicial empowerment at the supranational level is put forward by the “intergovernmentalist” thesis concerning the evolution of the European Court of Justice (ECJ).36 According to this thesis, member states choose to create (and selectively abide by the limits imposed by) supranational institutions primarily because these institutions help them surmount problems arising out of the need for collective action and also help them overcome domestic political problems. National governments of the EU member-states have not been passive, unwilling victims of the process of European legal integration; they consciously transferred power to the Court, and they have supported the Court when it has taken a proactive stance. Moreover, the selective implementation of ECJ rulings by memberstates derives from domestic political considerations by national governments (such as a greater willingness to implement ECJ judgments that favor certain constituencies whose political support is essential for governments and ruling coalitions). Other works have similarly suggested that in newly established democracies in post–World War II Europe, governments committed to international human rights regimes (the European Court of Human Rights, for example) as a means of locking in fundamental democratic practices in order to protect against future antidemocratic threats to domestic governance.37 Governments resorted to this tactic when the benefits of reducing future political uncertainty outweighed the “sovereignty costs” associated with membership in such supranational human rights enforcement mechanisms. The same logic may explain the voluntary incorporation of major international treaties and covenants protecting fundamental human rights and civil liberties into embattled democracies’ constitutional law (as happened in Argentina in 1994); or the constitutionalization of rights and the corresponding establishment of full-scale constitutional review following years of political instability and recurring military coups d’état (as happened in Thailand in 1997).38 Likewise, Miles Kahler has suggested that the precision of the North American Free Trade Agreement (NAFTA), for example, was “part of the Mexican government’s strategy to bind successor governments to its policies of economic openness.”39 Hence, Andrew Moravcsik notes, “governments may turn to international enforcement when an international commitment effectively enforces the policy preferences of a particular government at a particular point in time against future domestic political alternatives.”40 In other words, self-interested political incentives—rather than the altruistic considerations of political leaders or universal commitment to a morally elevated conception of human rights—provided the major impetus for the

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commitment by various countries to binding supranational human rights and free trade regimes. Under specific circumstances, then, political power-holders may choose to enhance their position by voluntarily tying their own hands. Such a strategic, counterintuitive self-limitation may be beneficial from the point of view of political power-holders when the limits imposed on rival elements within the body politic outweigh the limits imposed on themselves. Influential proconstitutionalization political elites in rule-of-law polities, however, do not operate in a political or institutional vacuum. To effectively promote their judicial empowerment interests, they must secure the cooperation of economic and judicial elites with compatible interests. Indeed, judicial empowerment through the constitutionalization of rights may serve the interests of influential coalitions of domestic economic elites—powerful industrialists and corporations—who gain added impetus toward less government regulation and reduced social spending by global economic trends. Most constitutional catalogues of rights place boundaries on government action and protect the private sphere (human and economic) from unjustified state intervention. Historically, the rights of landowners, big business, and economic investors were secured long before the rights of workers or women, let alone the poor. Moreover, the modern history of constitutional rights jurisprudence suggests that national high courts also tend to conceptualize the purpose of rights as protecting the private sphere from interference by the “collective,” often understood as the state and its regulatory institutions. Economic elites may therefore view the constitutionalization of rights, especially property, mobility, and occupational rights, as a means of removing market rigidities (such as trade barriers and collective bargaining), promoting privatization and economic deregulation, or simply as a way of fighting what their members often perceive to be the harmful large-government policies of an encroaching state. Under specific circumstances, international political economy factors may also push domestic economic elites to advocate constitutionalization as a means of placing economic liberties and rules allowing for free movement of transnational capital beyond the reach of majoritarian control.41 For example, the protection of the economic sphere, through the constitutionalization of mobility, property, occupational, and trade rights as well as the establishment of independent judiciaries that function as checks on (often “unpredictable”) domestic politics and (often “arbitrary”) state action, has long been viewed by transnational economic bodies such as the World Bank, the World Trade Organization, and the International Mone-

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tary Fund as a primary indicator of successful markets and sustained economic growth.42 The incorporation into domestic law of these and other legal norms endorsed by transnational trade and monetary regimes is often a prerequisite imposed on countries striving to become members. New democracies (such as those in the former Eastern Bloc) that rely heavily on foreign aid and investment are likely to bow to pressure from leading western democracies, economic corporations, or transnational governing bodies to promote the rule of law by emulating the constitutional fundamentals of liberal democracies. Adopting a constitutional catalogue of rights and establishing judicial review may therefore serve as a means to demonstrate a willingness to accept the required legal standards for joining supranational economic regimes. The restriction of legislative power through the constitutionalization of rights and the establishment of judicial review may also enhance a given regime’s international economic credibility. In short, the global trend towards constitutionalization concerns more than preservation of increasingly threatened values of core social groups. As Stephen Gill observes, “[n]ew constitutionalism is a macro-political dimension of the process whereby the nature and purpose of the public sphere has been redefined in a more privatized and commodified way . . . it can be defined as the political project of attempting to make trans-national liberalism, and if possible liberal democratic capitalism, the sole model for future development. It is therefore intimately related to the rise of market civilization.”43 The transfer of power to the courts may also serve the interests of a supreme court seeking to enhance its political influence and international profile. As the recent strategic revolution in the study of judicial decisionmaking has established, judges may be precedent followers, framers of legal policies, or ideology-driven decision-makers, but they are also sophisticated strategic decision-makers who realize that their range of choices is constrained by the preferences and anticipated reaction of the surrounding political sphere.44 Justices tend to vote strategically to minimize the chances that their decisions will be overridden; if the interpretation that the justices most prefer is likely to elicit reversal by other branches, they will compromise by adopting the interpretation closest to their preferences that could be predicted to withstand reversal.45 Accordingly, quite a few landmark decisions of the U.S. Supreme Court have not been merely acts of professional, apolitical jurisprudence (as doctrinal legalistic explanations of court rulings often suggest) or reflections of its justices’ ideological preferences and values (as “attitudinal” models of judicial behavior might suggest), but also a reflection of their strategic choices.

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Short-term policy considerations represent merely one possible motivation for strategic behavior by courts. Supreme Court judges may also be viewed as strategic actors to the extent that they seek to maintain or enhance the Court’s institutional position vis-à-vis other major national decision-making bodies.46 Courts may realize when the changing fates or preferences of other influential political actors, as well as gaps in the institutional context within which they operate, might allow them to strengthen their own position by extending the ambit of their jurisprudence and fortifying their status as crucial national policy-making bodies.47 As recent studies have shown, the establishment of an international rule of law in Europe was driven in no small part by national judges’ attempts to enhance their independence, influence, and authority vis-à-vis other courts and political actors.48 Expansion of judicial power through the constitutionalization of rights and judicial review may also support the interests of a supreme court seeking to increase its symbolic power and international prestige by fostering its alignment with a growing community of liberal democratic nations engaged in judicial review and rights-based discourse. In this respect, note that the past several decades have seen an accelerating trend toward intercourt borrowing and the establishment of a globalized, non-U.S.-centered judicial discourse. This trend has been described by Mary Ann Glendon as “a brisk international traffic in ideas about rights” carried on through advanced information technologies by high court judges from different countries.49 In its first landmark rights decision (Makwanyane, 1995—determining the unconstitutionality of the death penalty), the South African Constitutional Court examined in detail landmark rulings from Botswana, Canada, the European Court of Human Rights, Germany, Hong Kong, Hungary, India, Jamaica, Tanzania, the United Nations Committee on Human Rights, the United States, and Zimbabwe. As one commentator recently noted: “Constitution interpretation across the globe is taking on an increasingly cosmopolitan character, as comparative jurisprudence comes to assume a central place in constitutional adjudication.”50 In short, according to Anne-Marie Slaughter, “Courts are talking to one another all over the world.”51 Similarly, judicial empowerment through constitutionalization may elevate the symbolic status of a fairly cohesive professional stratum of judges, law professors, human rights organizations, litigation-oriented nongovernmental organizations (NGOs), top lawyers, and law firms. Not surprisingly, the legal profession has been one of the major advocates of judicial empowerment.

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The support of influential political elites remains the key factor in judicial empowerment through constitutionalization. Supreme courts in relatively open, rule-of-law polities would prefer to have an enhanced political influence and international profile. Likewise, economic elites have a near-permanent interest in extended protection of the private sphere and entrenchment of economic freedoms. It is political power-holders who are least likely to provide constant support for constitutionalization and the corresponding expansion of judicial power, because these changes are likely to lessen their room for political maneuvering. Thus, political power-holders—not economic or judicial elites—are the primary catalyst and driving force behind constitutionalization. Judicial power does not fall from the sky; it is politically constructed. I believe that the constitutionalization of rights and the fortification of judicial review result from a strategic pact led by hegemonic yet increasingly threatened political elites, who seek to insulate their policy preferences against the changing fortunes of democratic politics, in association with economic and judicial elites who have compatible interests. The changes that emerge reflect a combination of the policy preferences and professional interests of these groups. Given that there are at least three distinct groups whose ability to gain power and influence is contingent on judicial empowerment through the constitutionalization of rights, it becomes evident that the hegemonic preservation explanation does not depend on the existence of any systemic social need. Nor does it assume any necessary evolution in a progressive direction. This explanation is not deterministic, but actor-oriented; and, unlike extant microfoundational theories of judicial independence, it does not depend on the competitiveness of the party system. While most existing theories of constitutional transformation focus on universal or organic macroexplanations for this increasingly common phenomenon, a realist approach to constitutionalization emphasizes human agency and specific political incentives as the major determinants of judicial empowerment. Such an approach suggests that the expansion of judicial power through the constitutionalization of rights and the establishment of judicial review reflects appropriation of the rhetoric of social justice by threatened elites to bolster their own position in the ongoing political struggles of a specific polity. In the next chapter, I illustrate the hegemonic preservation thesis in action in four new constitutionalism polities—Israel, Canada, New Zealand, and South Africa.

CHAPTER

3

Hegemonic Preservation in Action

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “who is to be master— that’s all.” Lewis Carroll, Through the Looking Glass and What Alice Found There

The 1992 Constitutional Revolution in Israel The recent history of constitutional politics in Israel presents a near-ideal illustration of my explanation of judicial empowerment. The hands that guided the 1992 constitutionalization of rights and the establishment of judicial review in Israel were entirely visible; the process was steered by an ad hoc cross-party coalition of politicians representing Israel’s historically hegemonic (albeit increasingly challenged) secular Ashkenazi elite in association with economic and judicial elites who had compatible interests. This triadic strategic alliance, of which the political component was the most active, determined the timing, scope, and nature of the 1992 constitutional revolution. It has also been the major coalition opposing the constitutionalization of subsistence welfare rights and the creation of a more democratically representative Supreme Court. It was driven primarily by a selfinterested agenda—not by its members’ subordination to some invisible evolutionist or structural forces nor by their devotion to some elevated vision of human rights or national unity. The 1992 constitutional entrenchment of rights and the establishment of judicial review in Israel were initiated and supported by politicians repre50

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senting Israel’s secular Ashkenazi bourgeoisie, whose historic political hegemony in crucial majoritarian policy-making arenas (such as the Knesset) had become increasingly threatened. The political representatives of this group found the delegation of policy-making authority to the Court an efficient way to overcome the growing popular backlash against its ideological hegemony and, perhaps more important, an effective short-term means of avoiding the potentially negative political consequences of its steadily declining control over the majoritarian decision-making arena. A brief survey of the key events that have shaped Israel’s constitutional history since the establishment of the state is necessary in order to understand this claim. The state of Israel was founded on May 14, 1948, as a “Jewish and Democratic” state. As we have seen in earlier chapters, the major constitutional challenge Israel has faced since its foundation has been the creation of an ideologically plausible and politically feasible synthesis between these two seemingly contradictory terms (especially given that approximately onefifth of Israel’s citizenry consists of non-Jews).1 And as we have seen in Chapter 1, even within the Jewish population itself, the exact meaning of Israel as a Jewish state has been highly contested with a secular, relatively cosmopolitan lifestyle and ideological preferences striving to maintain their hegemony vis-à-vis embedded symbols of Jewish tradition, religiosity, and exceptionalism. While historically the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state, a series of landmark Supreme Court of Israel (SCI) rulings over the past several years have altered the long-standing status quo.2 Throughout its existence, Israel has also struggled with social divisions based on ethnicity and national origin. There are the fissures between Mizrahi or Sephardi Jews (mostly Jews of North African and Mediterranean origin) and the generally better-off Ashkenazi Jews (mostly Jews of European descent). Further social heterogeneity comes from Israel’s vibrant immigrant community, with approximately one million immigrants who arrived from the former Soviet Union during the 1990s forming the majority. A sizable minority of Jewish immigrants also came from Ethiopia. Their reception opened the polity up to charges of skin-based racism for the first time. The final twist of variety in this divided polity is the growing community of non-Jewish foreign workers residing in Israel (estimated at 300,000 or more), approximately two-thirds of whom have entered the country illegally.

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The 1948 Declaration of Independence of the State of Israel created temporary governmental institutions. A Constituent Assembly was simultaneously formed and invested with the power to draft a constitution that would eventually establish permanent governing institutions. In 1949, the Constituent Assembly changed its name to the Knesset and established itself as the legislative body of the state of Israel. After a year of debates over the merits of a constitution, it became apparent that the religious parties were opposed to the idea of an entrenched constitution because it would invest the ultimate source of sovereignty in the citizenry rather than in God or Jewish law. Mapai—the primary component of today’s Labor Party and the unchallenged secular ruling party at the time—was also unwilling to proceed with drafting a constitution, partly to avoid jeopardizing the tenuous secular/religious coalition government, but primarily because Mapai leaders, notably David Ben-Gurion, had no political incentive to transfer policymaking authority to the judiciary and no desire to impose any limitations on their own power. Thus, to preserve political power while simultaneously pursuing a constitutional dialogue, in 1950 the first Knesset adopted a compromise known as the Harari Resolution. This enabled the Knesset both to evade its obligation to compose a written constitution and to preserve its power to enact one through the adoption of a series of Basic Laws. The resolution stated: “The constitution shall be composed of individual chapters in such a manner that each of them shall constitute a basic law in itself. The individual chapters shall be brought before the Knesset . . . and all the chapters together will form the State Constitution.”3 In the years leading up to 1992, the Knesset passed nine Basic Laws, concerning primarily the powers vested in the various branches of government.4 None of these laws provided any entrenched constitutional protection of basic rights and liberties, just as none formally established any type of judicial review. In the absence of a civil rights tradition and the necessary constitutional framework for actively reviewing primary legislation, the Supreme Court was limited in the pre-1992 era to judicial interpretation of administrative acts, informed by an “implied bill of rights” doctrine.5 Beginning in the late 1950s, numerous attempts were made by civil libertarian politicians and interest groups to pass a bill of rights. Until 1992, all of these attempts failed. Standard explanations for Israel’s repeated failure to enact a bill of rights before 1992 include the British colonial legacy of parliamentary sovereignty, steady opposition from the religious parties, and the lack of consensus among Israel’s Jewish secular and religious populations re-

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garding Israel’s definition as a Jewish and democratic state (terms that many believe to be mutually exclusive and that therefore deny, prima facie, any meaningful protection of religious minority rights by a constitutional bill of rights). While these explanations are persuasive, they reveal only part of the picture. The British tradition was far more pervasive in India than in Israel, yet at the same historical moment of Israel’s founding, the new Indian Congress was enacting a detailed and wide-reaching constitution. Moreover, every country that has adopted substantive judicial review, from eighteenth-century America to twentieth-century South Africa, has done so in opposition to a prior tradition—including, most recently, Canada in 1982, New Zealand in 1990, many former Eastern Bloc countries in the early 1990s, and the United Kingdom in 1998. In Israel, the religious parties’ opposition to the constitutional entrenchment of rights was certainly not insurmountable. At least until the mid1980s, they were a minority, whose opposition could have been overcome by combining several factions of the majority secular forces. The difficulty in defining Israel as both Jewish and democratic proved not to be a major stumbling block to a bill of rights; this dual definition has not changed since the state’s foundation, and in fact was reentrenched by the Basic Laws adopted in 1992. The most plausible explanation for the failure to enact a bill of rights in Israel before 1992 is that political power-holders in the pre1990s legislature were disinclined to delegate power to the judiciary as long as their political hegemony and control of parliament remained almost unchallenged. That constitutional reforms have taken place since 1992 in spite of the continued presence of the long-standing obstacles just mentioned suggests that the political incentives driving the parliamentary representatives of the primarily Ashkenazi secular elite were what changed. During the first three decades of Israel’s independence, when its control of Israeli politics was virtually undisturbed, Ben-Gurion’s Mapai opposed the adoption of a bill of rights and repeatedly championed the democratic character of parliamentary sovereignty and majority rule. Highly critical of the constitutional role of the Supreme Court in the United States, Ben-Gurion said in a frequently cited speech: “Do we need a Constitution like the Americans? By all means let us profit from the experience of others and borrow laws and procedures from them, provided they match our needs . . . [I]n a free state like . . . Israel there is no need for a bill of rights . . . we need a bill of duties . . . duties to the homeland, to the people, to aliyah, to building the

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land, to the security of others, to the weak.”6 In a debate about due process and emergency regulations, Ben-Gurion went on to say: “Every jurist knows how easy it is to weave juridical cobwebs to prove anything and refute anything . . . as a law student I know that no one can distort any text and invent far-fetched assumptions and confusing interpretation like the jurist.”7 As Gary Jacobsohn notes, “for historians and legal scholars, even those inclined to resist cynicism, it is relatively easy to accept the allegations of Menachem Begin, then the leader of the minority Herut movement, that Ben-Gurion’s opposition to a constitution was fundamentally attributable to his fear of losing all or some of his power.” As Begin pointed out in a debate in the First Knesset, “if the Constituent Assembly legislates a constitution, then the government will not be free to do as it likes.”8 In short, as long as Israel’s secular Ashkenazi elite remained virtually unchallenged in their control of parliament, they had no reason to undermine their position by delegating power to the judiciary through the entrenchment of rights and the establishment of judicial review. This led to a constitutional stalemate, which persisted from the early 1950s until the late 1980s. But as Israel’s secular Ashkenazi bourgeoisie and its political representatives increasingly lost their grip on Israeli politics, their attitude toward judicial review changed. In the early 1990s, a group of Knesset members, representing a primarily secular, neoliberal ideological agenda, reacted to the continuous decline of their popular support by forming an ad hoc crossparty parliamentary coalition that initiated and carried out an institutional empowerment of the judiciary. Draft legislation was submitted to the Knesset by Knesset Member (MK) and law professor Amnon Rubinstein (of the liberal, left-wing Meretz party, then in the parliamentary opposition) in the summer of 1991, with the tacit assent of the Justice Minister Dan Meridor (of the right-wing Likud party). This initiative culminated in the 1992 enactment of two basic civil rights and liberties laws—Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation—as well as the amendment of Basic Law: The Government.9 These enactments paved the way for active judicial review in Israel by awarding the Supreme Court the authority both to monitor closely Israel’s political arena and to rescind any “unconstitutional” primary legislation enacted by the Knesset. A comprehensive survey of parliamentary records reveals that of the leading group of 32 MKs who consistently advocated and supported the new laws in the Knesset pre-enactment debates (from the preliminary debates in

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April-May 1991 to their official enactment in March 1992), 18 were Labor MKs, 8 were Likud MKs, and 6 were Meretz MKs (a rare cross-party coalition)—all of whom supported a clear secular, neoliberal agenda and many of whom held legal qualifications.10 Of the original 32 supporters, 28 voted consistently against increasing state funding for various religious and ultraOrthodox educational institutions, 25 voted consistently for the privatization of various public services (including the commodification of Israel’s electronic media, health, telecommunication, and banking services), and 26 were professionals (lawyers, doctors, managers, and so on). The 21 MKs who consistently opposed the adoption of the new Basic Laws in the pre-enactment parliamentary debates were all representatives of either the orthodox religious parties, the extreme right-wing parties, the communist party, or the Arab-Israeli population.11 What were the political origins of this historic constitutional breakthrough and the astonishing change of heart among the major political representatives of Israel’s secular bourgeoisie? Whereas Israel’s historically hegemonic secular Ashkenazi bourgeoisie has faced a continuous decline in its political representation since the early 1980s, marginalized groups, such as residents of peripheral development towns and poor urban neighborhoods (mainly Mizrahi Jews and blue-collar immigrants from the former Soviet Union), Israeli-Arabs from ethnically mixed towns, and lower-income religious groups, have steadily gained political power during this period (see Table 3.1). The constant exclusion of these marginalized groups from privileged localities, networks, resources, and opportunities has reinforced their opposition to the historically dominant Ashkenazi bourgeoisie. In addition, Israel experienced an unprecedented 20 percent population increase between the mid-1980s and the early 1990s, with the absorption of more than 800,000 immigrants, most of them from the former Soviet Union.12 Over the period 1989–1991 alone, and in accordance with Israel’s Law of Return, more than 450,000 newly arrived immigrants became members of the Israeli citizenry, thus gaining rights to vote and fully participate in Israel’s public life. Not surprisingly, these new immigrants have gradually begun to take part in Israel’s political life, establishing new political parties that represent their particular interests (for example, in the fields of employment, education, and housing). In the late 1980s and early 1990s, the levels of segregation and inequality in Israeli society rose to unprecedented heights, further alienating these marginalized groups from the (largely) Ashkenazi establishment. Israel’s

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Gini Index (0 = perfect equal income distribution) worsened, from 0.222 in 1982 to 0.298 in 1991 to 0.314 in 1994 and to a record high of 0.356 in 2000, making Israel’s wealth distribution one of the three most unequal among western countries (third only to New Zealand and the United States).13 The demographic distribution of poverty has also remained unchanged since Israel’s establishment: the cities with the largest populations of ultra-Orthodox Jews, Arab-Israelis, new immigrants from the former Soviet Union, and Mizrahi Jews (not to mention undocumented foreign workers) remain those with the highest levels of poverty. In some Arab-Israeli villages and townships, ultra-Orthodox communities, and in so-called development towns (whose residents are almost exclusively Mizrahi Jews and blue-collar immigrants from the former Soviet Union), the level of poverty has grown to over 40 percent. The unemployment rate in these towns has risen sharply, to about 20 percent, twice Israel’s average, as many textile and manufacturing factories in peripheral areas have closed their doors. In 1991, unemployment among the second-generation Ashkenazi population stood at 4.9 percent, but it was 13.2 percent among the second-generation Mizrahi population. In that year, 72 percent of the second-generation Ashkenazi population worked in white-collar occupations, while among the second-generation Mizrahi population, this figure was 46 percent. In 1975, 25 percent of the Israeli-born Ashkenazi population were college graduates, compared to 6 percent of the Mizrahi population; in 1992, the ratio was almost the same, although levels were higher: 41 percent and 11 percent respectively.14 These and other socioeconomic and demographic developments have brought about a growing antagonism among peripheral groups toward the core elites. Some Mizrahi Orthodox rabbis have garnered wide popular support in poor neighborhoods, becoming political spokesmen who publicly challenge Israel’s relationship with the non-Orthodox diaspora Jewry worldwide and, more important, the rule of (secular) state law. A clear manifestation of this trend was reflected in the 1995 assassination of Prime Minister Yitzhak Rabin (a representative and symbol of the Ashkenazi secular bourgeoisie) by a young religious Mizrahi Jew from a poor neighborhood. The assassin was backed by a Halakhic verdict issued by Orthodox rabbis who opposed the peace process led by Rabin—a process that had enjoyed wide support among the secular bourgeoisie.15 Antagonism toward the core values and policy preferences of the Ashkenazi secular high-income elite rapidly found its way into the Knesset. This

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can be seen in the number of seats won by parties that represent, by and large, the policy preferences of marginalized minority groups in Israeli society, as compared to seats won by Knesset members who represent the policy agenda of the secular bourgeoisie (Labor, Meretz, the Liberal Party’s section of Likud, and others). As Table 3.1 indicates, the bloc of Knesset members representing the secular bourgeoisie’s policy preferences consists mainly of the Labor Party (identified mainly with the secular Ashkenazi establishment), Meretz (identified mainly with the secular urban intelligentsia and the Kibbutzim), and the segment of the Likud party identified with populist secularism and a deregulatory economic policy. This bloc lost more than one-third of its relative combined electoral power between 1981 and 1999 (from 95 MKs in 1981 to 62 in 1996 and 58 in 1999).16 This continuous decline of the secular bourgeois power base has been accompanied by a dramatic increase in the electoral power of parties representing disadvantaged minorities in Israeli society. Together, parties representing marginalized groups in Israel more than doubled their combined electoral power between 1981 and 1999 (from 25 MKs in 1981 to 58 in 1996 and 62 in 1999). The Shas party alone (representing Orthodox religious Mizrahi residents of development towns and poor urban neighborhoods) increased its power impressively, from 4 Knesset seats in 1984 (63,600 votes) to 10 in 1996 (260,000 votes) and 17 in 1999 (430,000 votes), making it the third largest party in the fifteenth Knesset and leaving it only two seats shy of the Likud’s 19 seats.17 Shas’s impressive electoral success was quickly translated into powerful policy-making positions in the government and the public service. For over a decade (from 1988 to May 1999), Shas had control over both the Ministry of Labor and Social Affairs and the strategically powerful Ministry of Interior (responsible for local government, budgetary allocations for Israel’s municipalities, and the population administration that controls the registration of new immigrants). Shas was the second largest partner (after the Labor Party) in the new governing coalition established by Ehud Barak following the 1999 election, and its ministers held four crucial policy-making portfolios, including National Infrastructure, Labor and Social Affairs, and the Ministry of Health. Drawing on its increasing political power, Shas has been able to secure government funding for its increasingly popular semiautonomous education network. The results of Israel’s 1996 and 1999 elections clearly illustrate that parties representing the Arab-Israeli population, immigrants from the former Soviet Union, Orthodox religious voters, and Mizrahi resi-

58 Table 3.1

Hegemonic Preservation in Action Number of Knesset seats won by different categories of parties (total = 120)

Number of seats

1981

1984

1988

Knesset members representing a secular bourgeoisie policy agenda Labora 47 44 39 Likud Knesset members 43 35 33 representing a secular bourgeois policy agendac CRM/Shinui/Meretz 3 6 10 Other Knesset members 2 4 representing a secular bourgeois policy agendad Total 95 89 82

1992

1996

1999

44 24

34 15

21b 15

12

9 4

16 6

80

62

58

Knesset members representing the policy preferences of “peripheral” groups Religious partiese 13 17 18 16 23 Right-wing partiesf 3 6 7 11 10 Arab and Communist lists 4 6 6 5 9 Ex-Soviet immigrants listsg 7 Likud, Labor, and other Knesset 5 6 7 8 9 members identified primarily with Mizrahi Jews’ policy agendah Total 25 35 38 40 58

27 4 10 10 11

62

Source: Adapted from the official results of Israel’s 1981, 1984, 1988, 1992, 1996, and 1999 national elections. a. The Labor Party’s list for the 1996 general elections, for example, included Knesset members representing policy preferences of Mizrahi Jews in development towns and poor neighborhoods (e.g., E. Ben-Menahem and A. Peretz) as well as a Knesset member representing the small community of Ethiopian Jews (A. Masalla). However, as the Labor Party has in general long been associated with the policy preferences of the secular Ashkenazi bourgeoisie, I count all Labor’s Knesset members in this category. Moreover, all of the above three MKs lost their seats on the Labor Party’s list for the 1999 general elections. b. Following the 1999 general elections, the Labor Party held 26 seats in the 15th Knesset. However, at least 5 Labor Party MKs represented the policy preferences of Mizrahi Jews in development towns and poor neighborhoods (e.g., the Gesher faction). c. Note that the Likud (Union) party was established as an alliance between Herut (Freedom—a nationalist party) and the Liberal Party and has been headed by a group of ideologically diverse personalities. Therefore, Likud has always been a very loose alliance between politicians officially committed to different and sometimes opposing policy preferences. The section of Likud that represents the policy agenda of the secular right-wing bourgeoisie has included leading figures such as A. Sharon, D. Meridor (who joined the Center Party in 1999), E. Olmert, L. Livnat, T. Ha’Negbi, R. Rivlin, R. Milo (who joined the Center Party in 1999), M. Arens, U. Linn, Y. Aridor, S. Erlich, Y. Modai, M. Nissim, G. Pat, Z. Shoval, A. Sharir, P. Grupper, Y. Horowitz, and others who represent

Hegemonic Preservation in Action Table 3.1

59

(continued)

explicitly secular, neoliberal policy preferences. Note also that most of Likud’s leading figures since the party’s establishment have been secular Ashkenazi leaders—including, among others, M. Begin, Y. Shamir, M. Arens, A. Sharon, and B. Netanyahu. d. For example, Ometz, Yahad, The Third Way (1996), Center Party (1999). e. This category includes the National Religious Party (NRP), Aguda parties, Shas, and Tami (in 1981 and 1984). f. This category includes Tehiya and Tzomet (for 1996, Tzomet is included in the Likud vote), Kach (1984), Moledet (since 1988), and National Union in 1999. See text note 16 for the classification of Tzomet. g. Israel Ba’Aliyah in 1996 and 1999, and Israel Beiteinu in 1999. h. This category includes primarily Likud Knesset members explicitly identified with the policy preferences of Mizrahi Jews in development towns and poor neighborhoods. This section comprises, inter alia, the Levi-Magen faction, which was established in the mid-1980s and eventually left the Likud in 1995 to form Gesher (Bridge). Gesher formed a united list with the Likud before the 1996 elections and got 7 seats as part of the Likud list. In 1997, however, Gesher left the coalition, accusing Netanyahu’s government of ignoring the policy preferences of blue-collar Mizrahi voters. In the 1999 general elections, the Gesher faction was part of the Labor Party’s list and won 3 seats. The new One Nation party, led by MK A. Peretz (who left the Labor Party in 1998 after accusing the party of ignoring the needs of poor Mizrahi workers), won 2 seats in the 1999 general elections.

dents of peripheral development towns have become significantly stronger as an electoral force. A similar pattern is evident in another important majoritarian decisionmaking arena in Israel: municipal elections. The 1989, 1993, and 1998 municipal elections reflected a weakening of power for the two dominant parties in an arena they had long monopolized. Candidates representing the policy preferences of religious voters have become influential political actors in several urban centers traditionally dominated by the secular Ashkenazi establishment as well as in numerous development towns and peripheral local authorities. The high point of this trend was the election in 2003 of the ultra-Orthodox Torah Jewry candidate as the Mayor of Jerusalem. Another illustration of the gradual change in Israel’s power structure is the fact that in the summer of 2000, the Knesset elected a Mizrahi politician, Moshe Katsav (who was born in Iran and raised in a peripheral development town), for the primarily ceremonial position of State President. What makes this appointment all the more indicative of Israel’s changing political power structure is the fact that Katsav defeated Shimon Peres, a veteran Labor politician and the “old establishment” candidate for the post, and replaced Ezer Weitzman, another representative of Israel’s Ashkenazi elite and a nephew

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of Haim Weitzman, one of Israel’s founding fathers and its first President. In sum, this electoral trend represents a large-scale backlash against the country’s dominant, mainly Ashkenazi, secular bourgeois core, a group that, since the country’s establishment, has managed to alienate most peripheral groups through socioeconomic policies that have intensified Israel’s internal ethnic and class divisions. Well aware of the backlash eroding its hegemony, representatives of the Ashkenazi secular bourgeoisie in the Knesset initiated and promoted Israel’s 1992 constitutional revolution in order to transfer the main locus of political struggle from parliament, local government, and other majoritarian decision-making arenas to the Supreme Court, where their ideological hegemony is less threatened. Until the early 1980s, the dominance of the Ashkenazi secular bourgeoisie in the Knesset and the fact that its ideological and policy preferences enjoyed an uncontested hegemonic position created a strong disincentive to delegate policy-making authority from the Knesset to the Supreme Court. When this platform began to erode in the mid-1980s, the incentive structure gradually changed. By 1992, judicial empowerment had become an increasingly attractive alternative means of maintaining the dominance of the Ashkenazi elite. The intentional empowerment of the judiciary was also supported by leading economic figures in Israeli society, mainly powerful industrialists and economic conglomerates who have used Basic Law litigation since 1992 to promote their own material interests. These forces joined the representatives of the high-income stratum and Israel’s managerial class to create an influential coalition, which initiated and advocated the delegation of policymaking authority to the judiciary. The Ashkenazi secular bourgeoisie was motivated by serious popular challenges to its political and cultural hegemony and its growing political vulnerability in parliament vis-à-vis representatives of marginalized groups in the Israeli society. The economic elite supported the delegation of power to courts as a means of liberalizing Israel’s economic policies and to fight what its members understood to be a highly regulated market with “large government” economic policies that did not fit the emerging neoliberal global economic order. Almost all of Israel’s leading economic figures believed that the country’s centrist economic structure required liberalization and viewed constitutionalization as an effective means of achieving that goal. Aharon Dovrat (at the time the chairman of Klal, Israel’s largest economic conglomerate), Dan Proper and David Moshevitz (then among the owners of two of Israel’s

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top food production conglomerates), Al Schwimer (businessman and founder of Israel’s aviation industry), and many other top industrialists and businessmen strongly supported (both verbally and financially) the constitutionalization campaign. Also among the forces that publicly supported Israel’s constitutional revolution were the country’s major economic organizations, including the Chambers of Commerce and Manufacturing. MK Uriel Linn (Likud), one of the vocal advocates of the 1992 constitutional revolution, was appointed president of the Chambers of Commerce Union in January 2003. Indeed, the proconstitutionalization stance of Israel’s economic elite is not surprising given the American experience of “market friendly” constitutional jurisprudence. The U.S. Supreme Court—the most frequently cited producer of constitutional rights jurisprudence in the western world—has long been a zealous guardian of economic liberties and has maintained its historic position on the right of the American spectrum of economic thought. As in other western countries, there has also been a sustained attempt by economic elites in Israel in recent years to dismantle the country’s local version of the Keynesian welfare state and to install market-oriented economic policies. Over the past two decades, the developing Israeli economy, funded to a large extent by foreign aid and other external financial resources, has gradually weakened the economic authority of the Histadrut (Israel’s major labor union) in favor of private business interests.18 As a result, the Israeli economy has been moving rapidly toward a neoliberal structure that reflects and promotes an individualist, limited government and a free-market worldview. Characteristic changes of this process include the historic commodification of the health-care market (a new Medicare Law was passed by the Knesset in 1994); the dramatic rollback of the state from the social welfare arena; the privatization of media and telecommunication services; the privatization of state-owned banks (including Israel’s largest bank, Bank Ha’Poalim, in August 1997) and publicly owned industrial conglomerates (including the dramatic shrinkage in the late 1980s and the subsequent privatization of Koor, Israel’s largest industrial megaconglomerate); the emergence of private medical services and private higher education institutions; the gradual deregulation of the land, land actuary, and pension funds markets; the removal of state monopoly over agricultural exports; the deregulation of the foreign currency market (completed in May 1998); and the extensive liberalization of the capital markets and the accompanying removal of barriers on the borrowing of foreign capital and on foreign owner-

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ship of corporate assets in Israel. Beginning in the late 1980s, the local market has been opened up to multinationals and imported goods, marketing and consumption patterns have become “Americanized,” and a “stock exchange culture” has arisen. Indeed, the Israeli stock market has become one of the most important and widely referred to public institutions (much like many of its counterparts in the West) and more than quadrupled its overall value from early 1989 to early 1994 alone. In short, the free-market values of individualism, consumerism, and economic liberalization have gained the status of cultural totems. These transitions have been accompanied by changes in the traditional power bases of the labor movement and a reorganization of the Histadrut. The reorganization resulted in a sharp drop in labor union membership and a corresponding decline in the Histadrut’s (and the historic labor movement’s) political significance. Patterns of political competition and political marketing have also been Americanized, mainly due to the amendment of Basic Law: The Government in 1992, which allowed for the establishment of a new electoral system in Israel. The shift toward a neoliberal ethos in present-day Israel is also evident in the labor and welfare spheres. It is estimated that over 500,000 foreign workers have entered Israel since the late 1980s. Of these, approximately one-third did so lawfully. As of 2003, there were 300,000 foreign workers in Israel, accounting for about 10 percent of Israel’s civilian labor force—the highest proportion of foreign employees in the developed world. According to the State Comptroller’s office, over 70 percent of these workers receive less than minimum wages.19 The number of unregulated human-power agencies and private employment services has increased, circumventing of statutory labor provisions by individual and special labor contracts labor has proliferated, collective bargaining agreements have become less common, the status of the right to strike has been eroded, and minimum-wage and other mandatory social security laws are no longer rigorously enforced. Alongside these changes, a so-called structural unemployment of approximately 10 percent has established itself in recent years. All these phenomena are indicators of Israel’s movement toward a variant of the neoliberal market economy over the past two decades. And it was precisely this pervasive “Thatcherite,” proliberalization worldview that fuelled Israel’s economic elite in its vocal support for constitutionalization. A clear illustration of the shift to the market-friendly, “small state” impulse behind the 1992 constitutionalization of rights in Israel can be seen

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in the last-minute exclusion from the purview of the two new Basic Laws of provisions protecting a number of subsistence social and economic rights, as well as workers’ rights to unionize, bargain collectively, and strike. Reacting to an outcry by several leading academics committed to a traditional Keynesian welfare state agenda (most notably, by renowned labor law professor Ruth Ben-Israel of Tel-Aviv University), the initiators of the constitutional reform added to the proposed laws tentative provisions protecting workers’ freedom of association and the unqualified right to humane social and economic living conditions. However, an invisible hand eliminated the added provisions just before the final version of the new laws was submitted for legislative approval. Responding to socialist critics, the government pledged to amend the new laws at a later stage so as to include the eliminated provisions or even to enact a complementary law, Basic Law: Social Rights. However, none of these proposals have come to fruition. This meant that workers’ rights were left unprotected under Israel’s new constitutional order while employers’ rights were granted formal constitutional protection (see my detailed discussion of this issue in Chapter 4). Moreover, this meant that no positive constitutional obligation was placed on the government to promote the provision of basic health care, housing, or education to all. The coalition that sought to delegate power to the judiciary was also strongly supported by the Israeli legal elite, almost all of whom belong to the same social stratum as, and have close ties with, the secular Ashkenazi political establishment. Prominent figures in Israel’s legal academy, Israel’s top lawyers, and most of the Supreme Court justices (led by then–Deputy Chief Justice and now Chief Justice Aharon Barak) took a strongly positive position in the debate over the entrenchment of rights and the establishment of judicial review and enthusiastically supported efforts to delegate power to the judiciary.20 Prominent constitutional law professors Uriel Reichman and Baruch Bracha led the constitutionalization campaign within the legal academy. As early as 1986, they established a not-for-profit organization called Constitution for Israel, which sought to promote the idea of comprehensive constitutional reform. Throughout the late 1980s, Reichman, Bracha, and several other constitutional law professors drafted a series of detailed proposals for changing Israel’s system of government from a parliamentary to a constitutional democracy. These proposals served as the basis for the two new Basic Laws adopted in 1992 as well as for the amendment of Basic Law: The Government. Almost all of the draft proposals pertaining to the constitutionalization of rights and the fortification of judicial review had

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been submitted to Justice Barak for comments and tacit approval prior to their release. The proposals, which had gained some of the Supreme Court justices’ implicit approval, were also forwarded for review to prominent constitutional law scholars such as Owen Fiss, Cass Sunstein, and others. A special conference was held at Yale Law School (where Justice Barak has had close academic ties for over two decades) to discuss the apparent merits and disadvantages of the various constitutionalization proposals in light of Israel’s complex political and social reality. Not surprisingly, the adoption of the two new Basic Laws in 1992 was met with enthusiasm by Israel’s judicial elite. Aharon Barak, generally viewed as the judicial mastermind behind the 1992 constitutional revolution, has stated on numerous occasions that the enactment of the two new Basic Laws marked the beginning of a new era in Israel’s constitutional history. “Like the United States, Canada, Germany, and other leading constitutional democracies,” he asserted, “we now have a constitutional defense for Human Rights. We too have the central chapter in any written constitution, the subject-matter of which is Human Rights . . . We too have judicial review of statutes which unlawfully infringe upon constitutionally protected human rights.”21 Until 1992, the Knesset retained formal legislative powers that only a few parliaments in democratic countries held during the same period; after the enactment of the new Basic Laws in 1992, the balance of powers between the branches changed, enabling the Supreme Court to begin scrutinizing legislative and administrative acts. The transition to juristocracy in the post-1992 era has not been merely theoretical. As we have seen in Chapter 1, the constitutional revolution brought about a dramatic increase in the frequency and expansion in scope of judicial review as well as a significant acceleration of the judicialization of politics. The seemingly counterintuitive voluntary delegation of authority from the Knesset to the judiciary through the entrenchment of rights and the establishment of judicial review decreased the significance of majoritarian politics in determining the public policy agenda. The locus of political struggle was gradually transferred to an ostensibly apolitical arena, where the ideology of the “enlightened public”—the ruling elite of Israel and its secular, cosmopolitan, Ashkenazi constituency—has traditionally enjoyed clear dominance. This alliance between the Supreme Court, Israel’s neoliberal economic elite, and the secular bourgeoisie initiated the constitutional revolution and the transition to juristocracy, not only as a way to advance hu-

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man rights in Israel or as a solution to a systemic ungovernability crisis, but also (if not primarily) as a means of protecting the hegemony of the alliance and promoting the policies favored by its members.

Factors Facilitating the Delegation of Power to Courts In general, three factors may facilitate conscious judicial empowerment and reduce the short-term risk of those who voluntarily hand policy-making authority over to the judiciary. The first of these factors is a sufficient level of certainty among those initiating the transition to juristocracy that the judiciary in general, and the Supreme Court in particular, are likely to produce decisions that will serve their interests and reflect their ideological preferences. As will be seen in subsequent chapters, the adjudication of the Israeli Supreme Court poses only a minimal threat to the interests and ideological preferences of those who initiated the formal expansion of judicial power in Israel. Indeed, the SCI—either as a result of its members’ ideological preferences or their strategic behavior, or some combination of these and other factors—has long been inclined to rule in accordance with Israel’s national metanarratives and its prevailing ideological and cultural propensities. The adjudication of the SCI, and perhaps more important, the ideological premises and historical metanarratives upon which its adjudication tends to be based, are much closer to the shared values of Israel’s urban, secular, welloff Ashkenazi bourgeoisie than to the values and interests of any other group in Israeli society. As numerous works have shown, the SCI has a relatively poor record in terms of protecting the rights of the Arab-Israeli citizens of Israel, let alone the rights of Arab residents of the Occupied Territories.22 With a few notable exceptions, it has affirmed and legitimized state action against Arab citizens and noncitizens, including actions in clear violation of international law norms and treaties, in the name of protecting Israel’s national security interests. As Ian Lustick observes, the Court’s jurisprudence on these matters “hardly makes a dent in the massive array of institutionalized procedures and laws which bar Arab citizens (not to say non-citizens) from anything approaching equal access to economic resources or civil rights.”23 On the socioeconomic front, the Court tends to interpret the newly enacted Basic Laws from a neoliberal perspective, which advocates immunizing the economic sphere against state intervention. As I show in Chapter 4, its decisions have reflected the prevailing social and economic ideology that

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privileges individualism, efficiency, and nominal equality, and that calls for the removal of “market rigidities” and for the state’s withdrawal from labor relations, as well as from collective social and welfare spheres. The Court’s standard line of interpretation entirely ignores positive social rights and, predictably, privileges individual liberty over collective rights. Moreover, according to recent interpretive studies, the imagined “enlightened public”—a frequently used criterion by which the reasonableness of specific acts is assessed by the SCI—closely conforms to the characteristics of the secular Ashkenazi bourgeoisie and their ideological preferences.24 These studies also suggest that the Court’s conception of the rule of (secular) law, with its deep-rooted orientation toward western liberalism and formal reasoning, necessarily precludes the potential accommodation of alternative hierarchies of traditional or religious interpretation. The Court’s reluctance to grant support to “peripheral” interests also derives from its stake in retaining its status as the one and only legitimate interpreter of Israel’s laws vis-à-vis the perceived menace of alternative interpretation systems—such as the traditional rabbinical authorities, which are well established within the ultra-Orthodox and ultranationalistic communities in Israel and are now gaining support among poor Mizrahi populations in peripheral areas as well. The deep reluctance of the Supreme Court to recognize the legitimacy of alternative (primarily religious) interpretation systems is one of the main reasons for its appeal to the secular urban bourgeoisie, the managerial class, and these groups’ political representatives. A second factor that reduces the short-term risk for political elites who delegate power to the courts is their general control over the personal composition of national high courts. Compared with the United States, for example, the appointment of judges in Israel is, at least formally, an independent process. Judges (including Supreme Court justices, currently fourteen in number—twelve permanent appointees and two adjunct judges) are selected by a nine-member appointments committee, which consists of the president of the Supreme Court and two other justices of that court, two practicing lawyers who are members of the Israel Bar Association, two members of the Knesset elected in a secret ballot by majority vote, and two ministers, one of whom is the Minister of Justice (who also chairs the committee and must approve the appointments). In practice, however, since the establishment of the state, almost all of the appointments committee’s members have been representatives of the secular elite. Moreover, almost all of Israel’s justice ministers over the last two decades have supported a clear lib-

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eral and deregulatory agenda. Furthermore, all nine political figures (representing five different political parties) who served as justice ministers during the past two decades were among the main initiators and supporters of the 1992 constitutional revolution in Israel.25 The incumbent minister—Yosef Lapid—is one of the more outspoken antireligious politicians in Israel. As one would expect, Israel’s judicial elite is similar to the country’s traditionally hegemonic social and economic forces in its demographic characteristics. Of the thirty-six judges who served on the Court during the country’s first forty-five years, all were Jews and thirty were Ashkenazi.26 The very first Arab-Israeli Supreme Court judge was appointed for a twelve-month limited term in March 1999 and left the bench in 2000. Another Arab-Israeli jurist was appointed Acting Supreme Court judge in April 2003. Moreover, until recently the occupant of the customary chair reserved for a religious Justice on the Supreme Court was a tort law professor born in Germany, whose views were more in line with what the Court has often described as the secular, western “enlightened public” than Orthodox Judaism, much less other minorities in the Israeli society.27 Not surprisingly, the SCI accepted its institutional empowerment enthusiastically and reacted with a strong inclination to use its legitimacy and its newly gained policy-making authority to promote the economic, political, and cultural agenda of the social forces that had initiated the constitutional revolution. In a series of landmark decisions in the aftermath of this revolution, the SCI has pursued a distinctly antireligious, if not libertarian, agenda. As will be seen in subsequent chapters, in its recent constitutional adjudications the SCI has advanced an explicitly anticollectivist and deregulatory interpretation of the new Basic Laws. Moreover, the Court’s recent constitutional jurisprudence also establishes a clear pattern of favoring secular or secularizing solutions to highly contested matters pertaining to the secularreligious rift. Several highpoints of this line of antireligious adjudication (all of which are discussed in detail in subsequent chapters) have been the subjection of the adjudication of all rabbinical courts, including the Great Rabbinical Court, to the constitutional principles stated in the two new Basic Laws and to a corresponding review by the Supreme Court; the overturn of a series of rulings by the rabbinical court system pertaining to personal status, family law, and religious education; the Court’s series of rulings declaring unconstitutional (on equality grounds) the exclusion of women and non-Orthodox representatives from religious councils and the electoral groups that selected candidates for religious councils;28 the Court’s redefini-

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tion of “prayer rights” in holy sites, including the abolition of a centuriesold practice that allowed men only to hold prayer services at the Western Wall; and landmark rulings protecting certain rights to formal equality for those with nontraditional sexual preferences. The two pinnacles of the Court’s distinctly antireligious establishment adjudication have been the full recognition of non-Orthodox conversions to Judaism performed in Israel and abroad (thereby altering one of the cornerstones of the historic status quo concerning religious matters); and the close constitutional scrutiny of an arrangement that had been in place since the establishment of the state whereby Orthodox yeshiva students received draft deferments. But the SCI’s antireligious adjudication has not been limited to matters of religious establishment. In 1995, the Court stated that political agreements are justiciable and may be nullified on constitutional as well as natural justice grounds. Accordingly, the Court declared void a coalition agreement between the Labor Party and the Shas Orthodox Party (which had not been made public prior to the elections) that considered potential legislative reaction to antireligious judicial activism.29 This agreement was practically imposed on the Labor Party leadership as Shas’s precondition for joining the Rabin government. A few months later, the Court ordered the prime minister to discharge a minister and a deputy minister—prominent members of Shas—who had been accused of conducting unlawful acts.30 In a similar spirit, the Court went on to nullify a series of governmental policies and budgetary provisions supported by the increasingly powerful Mizrahi Orthodox parties that aimed at enhancing the political voice and socioeconomic status of these parties’ constituencies.31 In short, the Supreme Court has offered Israel’s threatened secularist-libertarian elites a safe haven amidst the growing influence of traditionally peripheral groups in Israel’s majoritarian policy-making arenas. A third factor that reduces the short-term risk for those who voluntarily hand power over to courts is the existence of widespread public trust in the political impartiality of the judiciary. The appearance of consistent political dependence bias would collapse the distinction between law and politics on which the fundamental legitimacy of the separation of powers system depends.32 As Table 3.2 indicates, in the years prior to the 1992 constitutional revolution, the SCI enjoyed a high level of legitimacy in Israeli public opinion compared to other important public bodies. According to a 1991 study conducted by the International Social Science Program (ISSP), which investi-

Hegemonic Preservation in Action Table 3.2

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Degree of national legitimacy of leading Israeli institutions before 1992

Institution Israeli Defense Force State Comptroller Supreme Court Police Knesset Government Media Parties

Positive contribution (%)

Positive and negative (%)

Negative contribution (%)

94.9 91.1 83.6 75.2 57.7 51.6 37.3 25.1

4.0 7.0 10.2 19.9 32.8 35.8 40.7 25.9

1.1 1.9 2.1 4.8 9.6 12.6 22.0 29.0

Source: Adapted from Gad Barzilai et al., The Israeli Supreme Court and the Israeli Public (Tel-Aviv: Papyrus, 1994) [Hebrew]. The data rely on a scientific poll that was conducted by the authors in July 1991 among a representative sample of the adult Jewish population in Israel. See Barzilai et al., 67–73 and 207–224 for further analysis.

gated the level of citizens’ trust in the rule of law and the court systems in their countries, Israel ranked number one, ahead of America, Britain, and Germany.33 Almost 70 percent of Israelis expressed high levels of trust in their legal system.34 In another comprehensive public opinion survey conducted in 1994, 85 percent of Israelis expressed high levels of trust in the SCI (second only to the Israeli Defense Force), whereas only 41 percent and 21 percent of Israelis expressed high levels of trust in the Knesset and Israel’s political parties respectively.35 This widespread public trust in the courts’ impartiality (as contrasted with political actors’ vested interests) has encouraged political actors to transfer political controversies to the legal arena. Although these factors may encourage conscious judicial empowerment by reducing the short-term risks to those who voluntarily hand over policy-making authority to national high courts, we should note an important caveat. Political power-holders tend to be myopic: they seek to advance their particular short-term interests without much regard for the potentially unfavorable long-term consequences to the institutional apparatus within which they operate. Moreover, they often underestimate the unfavorable long-term consequences of the policies they advocate, especially when their immediate gain as a result of adopting these policies is significant. Politics, however, is an ongoing, multidimensional, and reflective environment, which may yield unintended consequences even in cases of

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the most carefully designed institutions and policies. At least one such possible unintended long-term consequence of the judicialization of politics through the constitutionalization of rights and the establishment of judicial review comes to mind: the threat to the judiciary’s public image as politically impartial. While the delegation of policy-making authority to courts increases the courts’ formal capacity for active participation in the political arena in the short term, the abrupt change in the balance of power between the judicial branch and other branches of government may have a negative long-term effect on the popular legitimacy accorded to the courts’ decisions. Courts have historically enjoyed professional autonomy and a large measure of protection from political interference. However, as they exercise their newly awarded authority, they may come to be seen as active political bodies attempting to forward their own political agendas, rather than neutral arbiters. The delegation of power to courts may therefore pose a long-term threat to the legitimacy, impartiality, and independence of the judiciary. In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the SCI as an autonomous and politically impartial arbiter has been increasingly eroded, as political representatives of minority groups have come to realize that political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court. As a result, the Court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda, one identified primarily with the secular-liberal sector of Israeli society. Opposition to the Court’s adjudications seldom comes from the secular bourgeoisie or from proponents of the emerging neoliberal economic order in Israel. Rather, most political opposition to the Court so far has come from representatives of peripheral minorities, mainly orthodox religious circles and poor Mizrahi Jews, who accuse the Court of forwarding its own political agenda. In August 1996, for example, Aharon Barak was accused by religious circles in Israel as being “the driving force behind a sophisticated campaign against Jewish life in Israel.” They added, “We must not waste our shells. We must take off the gloves and argue with him up front. To present him as he really is, as one who is creating a ‘judicial revolution.’”36 And in the summer of 1997 police and orthodox Jews clashed in Jerusalem after the Supreme Court decision in the Bar-Ilan Road affair, which suspended a

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government ban on vehicular traffic on a busy thoroughfare that marks the boundary between secular and Jewish Orthodox neighborhoods in Jerusalem during the Jewish Sabbath.37 Another major controversy erupted in the fall of 1997 over the Court’s rulings that established the right of women and non-Orthodox Jews to serve on religious councils. The deep resentment of the Orthodox religious community toward the Israeli judiciary further intensified in 1999, following the conviction of former MK Arieh Deri (then the leader of Shas) on charges of bribery, fraud, and breach of fidelity by the Jerusalem District Court. This conviction (which led ultimately to Deri’s resignation from the political leadership of Shas) was characterized by Shas’s leaders as the outcome of a secular Ashkenazi establishment conspiracy against the whole Mizrahi Orthodox community. Fierce verbal attacks on the judiciary by Orthodox Mizrahi religious leaders resumed in the wake of the Supreme Court’s rejection of Deri’s appeal in the summer of 2000. In response to this decision, Shas’s leadership declared that the closure of the Deri case was “the signal for the start of the Mizrahi Jewry’s revolution” and that the Supreme Court’s decision was “another twist of the knife that has been stuck in the Mizrahi body for fifty-two years.”38 In February 1999, following a Supreme Court decision that expressed dissatisfaction over the delay in convening the mixed religious councils, an unprecedented uprising against the secular legal establishment in Israel in general and the Supreme Court in particular erupted in Orthodox circles. The uprising reached its zenith when some 250,000 people attended a mass demonstration against the Court in Jerusalem. The demonstration was headed by most of the Orthodox religious leaders in Israel.39 In his public speech at this event, Rabbi Ovadia Yosef, the spiritual leader of Shas and the most important Mizrahi religious leader in Israel, went so far as to declare, “The justices of the Supreme Court are wicked, stubborn, and rebellious . . . they are empty-headed and reckless . . . they violate Shabbat . . . and they are the cause of all the world’s torments . . . The justices are slaves who now rule us . . . they are not worthy of even the lowest court . . . Any seven-yearold boy is better versed in the Torah than they are.”40 Rabbi Yosef also attacked Justice Minister Tzakhi Ha’Negbi, one of the supporters of the new Basic Laws, calling him an “enemy” who “loves those people and made them judges. Did they hold elections? Who says the nation wants wicked judges like these?” Rabbi Moshe Gafni, an ultra-Orthodox MK, stated that the Court’s interpretation of the 1992 Basic Laws was “a

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complete fraud” and vowed that “these are the last Basic Laws that will pass the Knesset.” Menachem Porush, one of the Ashkenazi ultra-Orthodox religious leaders, threatened the court, saying that “if after this demonstration the Supreme Court is not convinced to cease involvement in church-state issues, there will be war . . . The people who were here are ready to invade any space.”41 These clashes between the Court and religious groups highlight Orthodox Jewish concerns that the Court will erode religious authority in areas where religious and civil laws are in conflict. In the political arena, leaders of several minority groups have called for the Knesset to alter the Basic Law: Judiciary in order to limit the scope of the Court’s adjudication. However, placing such a limit on the Court’s adjudication would run counter to the interests of influential elites in the Israeli polity, and there have not yet been any legislative amendments in this area. Moreover, in December 1999, the Knesset passed a resolution recognizing the need for judicial review of laws, and called on political figures to exercise personal restraint in their dealings with judicial authorities and to respect the independence of the courts. Not surprisingly, the resolution was initiated by MKs Dan Meridor (Center Party) and Amnon Rubinstein (Meretz), and was supported by an ad hoc coalition representing Israel’s secular population; all the religious parties opposed it. Another telling illustration of the fierce opposition to the Supreme Court in religious circles (as well as the tight cooperation between Israel’s judicial elite and its secular bourgeoisie) is the recent failure of a proposal to establish a new, more democratically representative constitutional court in Israel. Reacting to the series of antireligious rulings by the Supreme Court over the past decade, in late 2001 a number of Knesset members representing radical right, ultra-Orthodox, and Mizrahi constituencies put forward a motion to establish a new constitutional court, which would remove constitutional matters from the jurisdiction of the current Supreme Court and whose composition would proportionally reflect the demographics of Israeli society. Rather than being comprised strictly of professional judges, the proposed court would have included academics, Jewish and Muslim religious court judges, and a representative of immigrants from the former Soviet Union. The motion failed to garner a parliamentary majority and was ultimately rejected by a margin of 59 to 37 Knesset members. Not surprisingly, the opposition to the bill came from a cross-party coalition of Knesset members representing secular, liberal, and fairly cosmopolitan agendas. It was led by

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Justice Minister Meir Shetreet (Likud) and Ophir Paz (Labor), the chairman of the Knesset Constitution, Law, and Justice Committee. All Likud and Labor ministers, as well as the supposedly hawkish (albeit secular, Ashkenazi, and affluent) prime minister Ariel Sharon, voted against the proposed bill. Though the government had decided to oppose the bill, six ministers—all representing radical right and ultra-Orthodox parties—defied this decision and voted in favor of the motion. Following the defeat of the proposed bill, its supporters issued a series of public statements, lambasting Chief Justice Barak, who had lobbied vigorously against the bill. Minister Avigdor Liberman of the extreme right-wing National Union Party wrote that when he saw the Court spokeswoman sitting in the Knesset reporting directly to Barak on every MK that entered the plenum, he understood “the network of pressure and threats that the palace of justice was applying to the public’s representatives.” Another sponsor of the bill, MK Yigal Bibi (NRA), suggested that “Aharon Barak extorted politicians . . . there was a bitter, violent fight here, whose outcome destroys Israeli democracy.”42 Bibi also accused Justice Minster Shetreet and MK Paz of setting up a “war room” with Barak to pressure MKs into opposing the bill— charges that were vehemently denied by the furious Shetreet and Paz. Studies of the dynamics of public support for the U.S. Supreme Court have shown that an active and occasionally controversial Supreme Court can maintain a high level of stable aggregate public support.43 According to these studies, the U.S. Court “would enter precarious turf only if it were to rule against the tide of public opinion at an extremely frequent rate.”44 Indeed, recent public opinion polls suggest that in spite of the U.S. Supreme Court’s crucial role in determining the outcome of the 2000 presidential election—perhaps the most glaring example of the judicialization of politics in the United States—the American public continues to view the Court as a relatively impartial and apolitical decision-making body. In short, due to the diffuse nature of public support for established national high courts, the political sphere’s occasional deference to the courts is not likely to erode the judiciary’s legitimacy. There can, however, be little doubt that the unprecedented and continuous involvement of the SCI in almost every aspect of Israel’s public life, the Court’s increasing identification with specific social sectors in the Israeli polity, and the overt resentment among religious circles toward the Court in general and toward Chief Justice Barak in particular have eroded the SCI’s public image as an apolitical decision-making body. The decline in the

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Court’s legitimacy indicates that over the long term the ruling elites’ attempt to draw on the judiciary’s widespread legitimacy to maintain their political hegemony may prove to be a double-edged sword. In sum, the empowerment of courts in Israel through the constitutional revolution of 1992 marked an abrupt change in the balance of power between the judiciary, the legislature, and the executive. While the legislative and executive branches of government enjoyed clear dominance as Israel’s most important policy-making arenas until the late 1980s, in Israel’s postconstitutional revolution era, there is scarcely a public policy question that does not sooner or later turn into a judicial question. At first glance, this shift may seem to run counter to the interests of the legislature and the executive. In practice, however, the judicial empowerment and judicialization of politics in Israel can best be understood as a planned strategy on the part of Israel’s ruling elite and its bourgeois constituency—a relatively coherent social class of secular neoliberals of European origin, composed of politicians, businesspeople, and professionals striving to maintain their political hegemony. This social stratum and its political representatives initiated and carried out the 1992 constitutional revolution primarily in order to insulate and enhance their policy preferences vis-à-vis the vicissitudes of democratic politics in Israel. The primary political motivation for this initiative was a strong interest in preserving the political and cultural hegemony of the ruling elite and its secular bourgeois constituency, as well as entrenching Israel’s contested western, relatively cosmopolitan identity. Indeed, the constitutional revolution of 1992 generated an extensive judicialization of politics in Israel and enhanced values and policies favored by those who initiated the reforms at the expense of the ideological and policy preferences of peripheral groups. Relying on the one hand on the SCI’s reputation for rectitude and political impartiality and, on the other hand, on the Court’s inclination to rule in accordance with the values of the “enlightened public,” the forces behind Israel’s constitutional revolution were able to transfer sensitive political and cultural issues to the legal arena and reduce some of the growing costs they were being obliged to pay in complying with the rules of the game of proportional political representation. While the delegation of policymaking authority to the judiciary has brought short-term political relief to Israel’s ruling elite and its bourgeois constituency, the unprecedented judicialization of politics has also led to a gradual politicization of the law, thus unintentionally planting the seeds for a long-term erosion of both the judiciary’s legitimacy and the ruling elite’s future institutional maneuvering room.

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The Hegemonic Preservation Thesis in Canada, New Zealand, and South Africa My explanation for the conscious judicial empowerment witnessed in Israel may shed light on the political rationale behind judicial empowerment through constitutionalization in other countries as well. Let us consider the hegemonic preservation thesis as it may apply to the constitutional politics of Canada, New Zealand, and South Africa.

The Political Origins of the Canadian Charter As described earlier, the legislative power of the Canadian Parliament and the provincial legislatures enjoyed few formal restrictions prior to 1982. The enactment of the Constitution Act 1982, which included the Charter of Rights and Freedoms, began a new era in Canadian constitutional law and politics. The passage of the Constitution Act 1982 was the culmination of a long and arduous political battle. Its origins may be traced to the rise of Quebec nationalism in the 1960s. From the mid-1960s to the early 1980s, Justice Minister and later popular Prime Minister Pierre Elliot Trudeau (a bilingual former Montreal lawyer and law professor) was the most vocal and influential advocate of a constitutional bill of rights. Trudeau was a civil libertarian sincerely committed to protecting individual rights. However, his fight for constitutionalization was not merely a reflection of his commitment to an elevated vision of civil liberties, but also part of a broader strategic response to the growing threat of Quebec separatism and other potentially power-diffusing demographic changes in Canadian society.45 The federal government expected the proposed constitutionalization of rights and fortification of judicial review to encourage national unity in a number of ways. Such a bill would presumably shift national political debate away from regional concerns and growing calls for expanded group and province-based self-determination and toward universal questions of individual rights. The federal government also anticipated that Trudeau’s proposed constitutional overhaul might succeed in subordinating provincial legislation (such as Quebec’s) to core policy standards interpreted by a national institution, the Supreme Court. Political pressure to entrench individual rights in the Canadian constitution has existed in Canada since at least the 1930s. Examples include the “implied bill of rights” doctrine developed by the Supreme Court of Canada

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(SCC) in the Alberta Press case,46 the nonentrenched Bill of Rights of 1960,47 and the mini-charter of rights included in the Victoria Charter of 1971.48 However, all the pre-1982 attempts to grant entrenched constitutional status to basic rights failed, mainly due to federal power-holders’ disinclination to replace the traditional governing principles of parliamentary sovereignty with principles of constitutional supremacy as long as their political hegemony and control of central policy-making mechanisms remained almost unchallenged. However, the rise of Quebec nationalism in the mid-1960s, and especially the victory of the separatist Parti Québécois government under the charismatic leadership of René Lévesque in 1976 (which led to the Quebec referendum of 1980), changed the political incentive structure. The immediate catalyst for the final round of constitutional negotiations that led to “patriation” and the entrenchment of rights in 1982 was the Quebec referendum on sovereignty association. In May 1980, the separatist Parti Québécois government, led by Premier Lévesque, sought to negotiate sovereign political status for Quebec while preserving economic association with the rest of Canada. Quebec voters ultimately rejected Lévesque’s plan in a referendum, but the idea of patriating the constitution was given new momentum by the referendum campaign. Federalists attempted to fight the separatist movement in Quebec, calling for constitutional renewal as a means of both placating and promoting the concerns of francophone citizens of Quebec. This new momentum enabled Prime Minister Trudeau to initiate unilateral patriation of the constitution in spite of a constitutional convention requiring provincial consent for such an amendment. In October 1981, following extensive negotiations between Trudeau and the provincial premiers, all the provinces except Quebec accepted the proposed constitutional provisions, and in April 1982, the Constitution Act 1982 came into effect, marking the beginning of a new constitutional era in Canada. Like most scholarship on the expansion of judicial power in Israel, mainstream studies of the expansion of judicial power in Canada in the 1980s tend to stress the deep commitment of political leaders (primarily Prime Minister Trudeau) to the protection of fundamental civil liberties through judicial review, as well as functional necessity (in this case, political ungovernability) as the major catalysts for the adoption of the Charter. Because it expressed the common values of Canadians, the Charter was seen as an instrument for promoting national unity. Judicial review had been pushed to the center of the policy-making arena due to the political decision-makers’

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inability to cope with a range of contentious problems that were generated by the organic nature of Canadian federalism. Nevertheless, there is broad consensus among critical scholars of Canadian constitutional politics that the enactment of the Charter was, at least in part, a self-interested maneuver initiated by elites who found majoritarian politics not to their advantage at that particular time.49 According to these studies, the enactment of the Charter did not stem from the humanitarian or democratic impulses of its sponsors. Rather, it stemmed primarily from the desire to preserve the institutional and political status quo and to fight the growing threats to the anglophone establishment and its dominant Protestant, business-oriented culture presented by the Quebec separatist movement and other emerging demands for provincial, linguistic, and cultural autonomy (which stem in turn from dramatic changes in Canada’s sociodemographic composition over the past five decades). As was the case in Israel, New Zealand, and South Africa, calls for the adoption of an American-style constitutional catalogue of protected civil liberties in Canada were strongly supported by an influential coalition of neoliberal economic forces (mainly powerful domestic industrialists and American economic conglomerates), who viewed the constitutionalization of rights as a means to promote economic deregulation. Fierce political resistance prevented the inclusion of a property clause in the Charter. However, a few years later, the very same coalition successfully advocated the entrenchment of business-friendly economic freedoms, liberalized trade rules, and a new foreign investment regime in the form of the transnational NAFTA (primarily NAFTA’s Chapter 11), thereby circumventing the lack of an explicit property clause in the Charter.50 As recent studies have shown, economic corporations have been by far the most active organized interest litigants in the past two decades, drawing on Charter provisions to challenge regulations governing banking, international trade, foreign ownership of economic enterprises, and consumer and environmental protection regulations.51 In addition, in spite of Canada’s long-standing image as a generous welfare state, the global trend toward neoliberalism has not left the Canadian economy untouched. Whereas until the early 1980s the Keynesian economic orthodoxy had provided the underlying intellectual paradigm for Canada’s economic and social welfare policy, over the past two decades the resurgent neoliberal worldview has become the social and economic model of thinking. This has been translated into sharp cuts in governmental bud-

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gets allocated to welfare, unemployment benefits, health care, and education, and has resulted in the state’s pullback from formerly state-controlled public services and in an increasing commodification of the remaining services. As will be seen in subsequent chapters, the constitutionalization of rights has posed no impediment to these developments. In fact, the opposite is true. As in Israel, the goals of entrenching the central government’s policy preferences and liberalizing the economy were achieved in Canada partly by means of a deliberate delegation of policy-making power to the SCC by representatives of established interests in the national executive and legislature. As with the 1992 constitutionalization of rights in Israel, the Canadian Charter and the SCC have not served as decentralizing institutions that perform a checking or blocking function. Instead, threatened elites—who have easier access to and greater influence upon the legal arena—have transferred policy-making authority from majoritarian decision-making arenas to the Supreme Court primarily in order to preserve their hegemony. A few examples will help to illustrate this pattern. To begin with, we might consider Trudeau’s “change of heart” between the early 1960s and the mid-1970s. In a talk given to the Canadian Political Science Association in 1964, when he was still a law professor, Trudeau praised the Canadian constitution for doing without American-style “frills”: The authors of the Canadian federation arrived at as wise a compromise and drew up as sensible a constitution as any group of men anywhere could have done. Reading that document today, one is struck by its absence of principles, ideals, or other frills; even the regional safeguards and minority guarantees are pragmatically presented, here and there, rather than proclaimed as a thrilling bill of rights . . . By comparison [to the United States], the Canadian nation seems founded on the common sense of empirical politicians.52

But a few years later, as Minister of Justice in Lester Pearson’s government, Trudeau became fully committed to an entrenched bill of rights; and once he took the reins as prime minister, he became the driving force behind the adoption of the Charter and the fortification of judicial review. In 1971, Trudeau and the provincial premiers reached an agreement to revise the constitution and entrench a charter of rights (known as the Victoria Charter). This agreement ultimately failed because of the objections of Quebec and Alberta. The opposition of these provinces to the proposed con-

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stitutional reform was certainly not insurmountable, as the 1982 constitutionalization saga illustrated only a decade later. However, as the separatist threat was still in its formative stages, the plan’s failure removed constitutional reform from the center stage of Canadian politics until 1976, when the election of a separatist government in Quebec provoked additional demands for constitutional reform. Or consider the opposition of Trudeau’s government to the inclusion of the “notwithstanding clause” in the Charter. As mentioned in this book’s introduction, this clause (section 33) establishes formal limitations on the rights and freedoms protected by the Charter by enabling elected politicians in either the federal parliament or the provincial legislatures to legally limit rights and freedoms protected by the Charter’s fundamental freedoms, due process, and equality rights provisions by passing a renewable overriding legislation valid for a period of up to five years. In other words, any invocation of section 33 essentially grants parliamentary fiat over these rights and freedoms. This means that both the federal Parliament (with regard to federal matters) and the provincial legislatures (with regard to matters within provincial jurisdictions) are ultimately sovereign over these affairs. One would assume that Trudeau and his ministers, as elected politicians, would advocate, if not initiate, the adoption of the notwithstanding clause as a means of retaining legislative power—or at least as a way to mitigate the tension between rigid constitutionalism and fundamental democratic governing principles. However, such a clause was not part of Trudeau’s original plan for constitutional reform. In fact, throughout the federal-provincial negotiations leading up to the adoption of the Constitution Act 1982, Trudeau’s government zealously advocated an unconditional transition to juristocracy. Only when it became clear that leading provincial premiers would not endorse the proposed constitutional pact unless a notwithstanding clause was adopted did Trudeau reluctantly accept the inclusion of such a provision. It is now generally agreed that without this compromise (reached early in November 1981), the Charter would not have been adopted. In contrast to its opposition to the inclusion of the notwithstanding clause, Trudeau’s government insisted on enacting section 23, which imposes detailed obligations on provincial governments to provide minority language education facilities at public expense, thus parrying Quebec’s attempts to make immigrants to the province enter the French educational system. This section (along with all other Charter provisions dealing with

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language rights) has been formally excluded from the purview of the Charter’s override clause and is therefore not subject to legislative override. The enactment and judicial interpretation of this section clearly were part of the Canadian federal government’s constitutional war against the separatist movement in Quebec in general and the famous Bill 101 in particular.53 As in Israel, the delegation of authority to the SCC has been tied to the Court’s inclination to rule, by and large, in accordance with hegemonic ideological and cultural propensities. Based on a customary constitutional convention, the judges of the SCC are nominated to the bench according to a provincially representative formula, whereby three justices represent Ontario, three come from Quebec, two from the western provinces (one is usually from British Columbia), and one from the Maritime provinces. The selection and nomination process itself, however, is controlled exclusively by the federal government and the prime minister. Appointees to the bench and to the chief justiceship are virtually handpicked by the prime minister and his or her advisors. Judges selected through this explicitly political nomination process are not likely to hold policy preferences that are substantially at odds with those held by the rest of the political elite.54 According to a long-standing constitutional convention, the person appointed to the position of Chief Justice of Canada is the most senior Supreme Court judge serving at the time of vacancy. In 1973, when his judicial empowerment plan began to crystallize, Trudeau took the liberty of ignoring this convention and appointing Justice Bora Laskin to the top judicial position in spite of the fact that Laskin had joined the bench only three years earlier. By the time of his appointment as Chief Justice, Laskin had already established his reputation as a vigorous advocate of judicial activism, national unity, and centralized federal policy-making. Bora Laskin’s appointment paid enormous dividends to those who selected him: his chief justiceship (1973–1984) lasted through the most tumultuous period in modern Canadian politics and was a true watershed in terms of judicial activism and the transformation of the Court into one of the major policy-making bodies in present-day Canada. Indeed, in its federalism jurisprudence over the past several decades, the SCC has generally tended to adopt values and policies favored by the national government at the expense of the provinces’ political autonomy. By overturning many of the Judicial Committee of the Privy Council’s decentralizing rulings concerning the federal-provincial distribution of legislative powers, the SCC had already fortified the federal government’s powers prior

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to the constitutional revolution of 1982. Most of the Court’s centralizing rulings throughout the 1960s and 1970s drew on an expansive reading of the BNA Act’s section 91 (which establishes the federal government’s residual and overarching responsibility to enact laws and regulations for the “peace, order, and good government” of the country)55 as well as on an expansive reading of section 91’s “trade and commerce” clause (which grants the federal government exclusive legislative powers in regulating trade and commerce) combined with a narrow reading of the provinces’ legislative powers in the areas of “property and civil rights” (section 92(13) of the BNA Act) and “matters of local nature” (section 92(16) of the BNA Act).56 This general trend has not changed dramatically over the past few decades. Over the 1997–2002 period alone, for example, the federal government won seventeen significant victories and lost only three substantive appeals to provincial governments. During the same period, the provinces had twelve significant statutes and regulations struck down.57 Taken as a whole, it would be fair to say that the Court’s federalism jurisprudence over the past few decades has turned it into a centralizing policy-making body, primarily by transcending traditional (provincial) jurisdictional boundaries into a “one rule fits all” policy regime. Its rulings reflect and promote a set of cultural propensities, moral standards, and policy preferences imposed from the center on an otherwise exceptionally diverse, multiethnic, multilinguistic polity with thirteen provinces and territories stretching from the Atlantic to the Pacific to the Arctic Ocean. Moreover, as my analysis in Chapter 4 indicates, the chief beneficiaries of Charter politics and litigation have been hegemonic ideas of “negative” liberty rather than progressive notions of distributive justice.58 A clear manifestation of the central government’s tacit (if not explicit) encouragement of judicial activism is the gradual transfer of the struggle over Quebec’s political future from pertinent majoritarian decision-making arenas to the SCC. The Court has indeed become an important, if not the most important, decision-making arena for dealing with the question of Quebec secessionism. As will be shown in subsequent chapters, in all of its decisions concerning the Quebec question the SCC has expressed an explicit antisecessionist impulse. In one of the most important judgments in its history (detailed in Chapter 6), the Court ruled in 1998 that a potential unilateral secession by Quebec would be unconstitutional under both domestic and international law. At the same time, the Court upheld the federal policy of enhancing the status of language and education rights of linguistic minor-

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ities, be these the rights of francophones living outside Quebec or anglophones living in Quebec. As in Israel, the voluntary delegation of authority to the SCC has depended, among other things, on the Court’s reputation for expertise, rectitude, and political impartiality. Unlike the Israeli experience, however, there seems to have been only a minor decline in the perceived legitimacy of the SCC (at least among anglophone Canadians) over the past fifteen years in spite of the Court’s emergence as a major policy-making body. A comprehensive public opinion survey conducted in 1987, for example, found that no fewer than 90 percent of anglophone and 70 percent of francophone respondents said they had heard of the Charter, and a substantial majority within each group thought the Charter was “a good thing for Canada.” In another public opinion survey conducted in 1999, more than 87 percent of the respondents said they were aware of the Charter and 82 percent thought it was “a good thing for Canada.”59 Almost 80 percent of the respondents in the same survey said they were somewhat or very satisfied with the SCC’s performance. Moreover, both in 1987 and in 1999, more than 60 percent of the respondents thought that the courts were the most reliable institution in Canada and should have the final say when a law or administrative act was found to be in conflict with Charter provisions.60 A public opinion survey conducted in July 2001 found that although seven in ten Canadians believed SCC rulings to be influenced by partisan politics and felt that the Court was likely “to line up on the side of the federal government because the judges were appointed by it,” an overwhelming majority strongly approved of the Court.61 That said, public support for the Court appears to be less susceptible to populist criticism in the historic bastions of English Canada (Ontario and the Maritime provinces) than in Quebec and in the west, where uproars over excessive judicial activism and legal elitism are fairly common. In sum, in spite of the significant dissimilarities between the Canadian and Israeli sociopolitical scenes and their constitutional legacies, there are striking parallels in the political rationales that have supported judicial empowerment through constitutionalization in the two countries.

The Origins of the 1990 Rights Revolution in New Zealand Just fifteen years ago, New Zealand’s political system was described by leading political scientists as “a virtually perfect example of the Westminster

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model of democracy” and “the only example of the British majoritarian democracy system left.”62 The enactment of the New Zealand Bill of Rights Act (NZBORA) in 1990 marked an abrupt change in the balance of power between the judiciary, the legislature, and the executive in what had been important policy-making arenas until the late 1980s, and symbolized the demise of the “last Westminster system.”63 Along with other new civil liberties laws, the Bill of Rights Act was intended to fence off a set of fundamental freedoms from the vicissitudes of New Zealand’s increasingly volatile political system.64 The driving force behind the 1990 constitutionalization of rights in New Zealand was provided by a coalition of economic actors who were pushing for neoliberal economic reforms, together with disparate sections of elites seeking to preserve and enhance their power vis-à-vis the growing presence of “peripheral” interests in majoritarian policy-making arenas. New Zealand fully inherited the doctrine of parliamentary supremacy in 1947 when Britain removed its last constraints on New Zealand’s legislative powers. Along with the British Westminster system of government, New Zealand’s pre-1990 constitutional organization was heavily influenced by the traditional British distrust of American-style judicial review and of fundamental rights and proclamations of social or state policy. In short, until the late 1980s, New Zealand’s constitution replicated the British parliamentary system and the British common law tradition in almost every respect. After decades of almost undisturbed consensus in favor of white hegemony and an expanded welfare state, New Zealand’s stable political system began to change in the early 1970s, when a combination of newly emerging interests and changing international economic conditions started to make its presence felt in New Zealand’s majoritarian policy-making arenas. First, the traditional ties between New Zealand and Britain began to erode in the early 1970s, as Britain—the destination of the bulk of New Zealand’s exported goods during the 1950s and 1960s—edged closer to economic union with Europe.65 Reacting to this change, New Zealand’s economic elite was forced to shift away from its traditional ties with Britain in order to search for new markets in the Pacific basin. This was reflected in the signing of the 1983 Closer Economic Relations (CER) agreement with Australia, similar bilateral free trade agreements with Singapore and Hong Kong, and New Zealand’s joining multilateral economic groups such as the Asia-Pacific Economic Conference (APEC) and the South Pacific Forum. New Zealand also gradually transformed the nature of its domestic mass production—from a

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primarily agricultural emphasis on wool, meat, and dairy to an emphasis on fisheries, tropical fruits, and incoming tourism. In order to fund this overhaul of New Zealand’s production structure, the government had to borrow huge amounts of money from international sources, and public spending had to be cut back drastically. The abandonment of the local version of the welfare state and the transition to a neoliberal economic order became inevitable.66 As a result, between 1984 and 1994 New Zealand underwent radical economic reform, moving from what had likely been the most protected, regulated, and state-controlled system of any capitalist democracy to a nearly opposite position at the open, neoliberal, free-market end of the spectrum. Indeed, the sweeping transition from orthodox Keynesianism to “Thatcherite” neoliberalism in New Zealand has become the textbook case of such transitions in the international political economy literature. This historical shift in New Zealand’s economic policy was marked by the introduction of a new nexus of laws that restricted the government’s ability to intervene in the economy and in the private sphere more generally. Two pinnacles of this new legislative framework (in addition to the NZBORA 1990 itself) were the Employment Contracts Act (1991), which repealed New Zealand’s previous legislative industrial-relations framework (that had been in place for nearly a hundred years) in an attempt “to promote an efficient labor market”; and the Fiscal Responsibility Act (1994), which set out generic principles for neoconservative fiscal policy, “including that government expenditure should not exceed its revenue over a reasonable period of time.”67 The state’s wholesale retreat from the economic sphere brought about extensive deregulation and privatization of New Zealand’s telecommunication, transportation, forestry, and tourism industries; wholesale removal of barriers on import and export of goods and services; removal of subsidies from the manufacturing, food processing, and agricultural sectors; large-scale layoffs in the public sector; the commodification of numerous social services, including fundamental welfare, education, housing, and health care services; a severe erosion of labor unions and collective bargaining; and active encouragement of foreign investment and ownership. These far-reaching reforms, introduced over several years, all shared the characteristic ideological and rhetorical underpinnings of neoconservative economics at its extreme. Not surprisingly, during the same period, New Zealand witnessed a dramatic rise in the level of economic inequality; an unprecedented increase

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in the proportion of foreign ownership of corporate assets, media, and public services; and a sharp drop in trade union membership. In the political arena, these changes were shaped by and reflected in the rise of new political parties representing an explicit neoliberal stance (for example, the libertarian New Zealand Party, which has quickly become the third political power in New Zealand), the adoption of “market friendly” economic positions by the conservative National Party, and a quick conversion to neoliberalism by the established Labour Party. Indeed, by the late 1980s, writes Raymond Miller, Keynesian social democratic doctrines had been so discredited by the Labour government “as to be deemed by one commentator to be virtually ‘irretrievable’.”68 As in a number of formerly social democratic countries, the new generation of New Zealand’s Labour leaders—party leader David Lange (a lawyer), deputy leader Geoffrey Palmer (a law professor), and other leading figures in the 1984–1990 Labour government—were university educated and professionally trained. “Unlike earlier generations of Labour leaders,” notes Miller, “they were imbued with that mixture of personal ambition, individualism, and social liberalism” often associated “with the upwardly mobile middle class.”69 The rise of neoliberalism in New Zealand during the 1980s was accompanied by the growing presence of “peripheral” interests on New Zealand’s public agenda. Consider, for example, the following demographic facts. In the late 1970s, over 90 percent of New Zealand’s population identified themselves as being of European descent. By the mid-1990s, however, less than three-quarters of New Zealanders indicated that they were of European descent. During the past two decades, this group not only declined as a proportion of the population but also fell in absolute numbers. Over the same period, New Zealand’s other major ethnic groups increased significantly both in size and as proportions of the population. By 1995, New Zealand’s Maoris made up over 15 percent of the population. From less than 1 percent in 1945, the combined figure for people originating from the Pacific islands and people of Asian descent rose to 2.2 percent in 1971, to 5.2 percent in 1986, to 9.6 percent in 1996, and to just over 11 percent in 2001, each group making up over 5 percent of New Zealand’s population. Over the past two decades alone, the Maori and Pacific Islander populations have both grown by more than 50 percent. And between 1980 and the late 1990s, New Zealand’s Asian population grew by more than 250 percent, primarily as a result of increased immigration. Between 1955 and 1975, New Zealand

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granted citizenship to less than 20,000 applicants (approximately 2,000 per year); in contrast, over 450,000 new citizenship applications were granted between 1976 and 2000, with an annual average of over 18,000. In addition to these demographic changes, by the late 1980s there was a growing public awareness among the Maori of the significance of the Treaty of Waitangi (the 1840 pact between Maori chiefs and the British that opened the way for European colonization) and of unresolved Maori grievances, especially over the unjust expropriation of their land. This led to the expansion in 1985 of the Waitangi Tribunal’s jurisdiction, enabling the inclusion of Maori grievances pertaining to the post-1840 era (rather than grievances pertaining to the post-1975 period only, as permitted by the Treaty of Waitangi Act 1975).70 Vocal Maori demands for compensatory redistribution of land, fisheries, natural resources, and so forth, as well as honorable treatment of the Maori language and heritage, coincided with growing demands from established immigrants from the Pacific Islands, Asia, and the Mediterranean for the adoption of multicultural policies in education and language, and with calls from environmentalist, feminist, and militant antinuclear movements for the accommodation of their policy preferences. As in Israel, these new interests rapidly found their way into New Zealand’s parliament. Over the past several decades, Maori representation in New Zealand’s parliament increased from only 3 percent to 15 percent (their approximate proportion of New Zealand’s population). The representation of Pacific Islanders (6 percent of the population) and Asian (5 percent) has also been improved. The Green Party became a meaningful political force, primarily in the 1980s and early 1990s. In the ten elections held between 1943 and 1969, only two minor parties won 2 percent or more of the national vote on seven occasions. By contrast, in the ten elections between 1972 and 1999, ten different minor parties reached at least 2 percent of the vote on a total of twenty-two occasions. In addition, the militant Mana Motuhake faction, founded in 1980, became the principal contender for four designated Maori electorates in the pre-MMP electoral system. Overall, the minor parties’ average vote share rose from 7.5 percent in the period 1943–1969 to 19.5 percent in 1972–1999. Consequently, the average share of the popular vote gained by the winning party (either the socialist Labour Party or the populist National Party) fell from 48.1 percent to 42.5 percent.71 In the 1996 national elections, for example, the two largest parties received a joint 62 percent of the vote (National—33.8 percent, Labour—28.2 percent) as compared with 91 percent in 1975 and 79 percent in 1984. The

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breakdown of support for the two major political parties was accompanied by a sharp increase in the degree of electoral volatility (fluctuations in voting results between elections) and by a marked decline in the membership of the major political parties. Whereas in 1963, 89 percent of the voters voted for the same party that they had supported in 1960, the comparable figure for the 1987 and 1990 elections was 64 percent.72 And whereas in the 1960s and 1970s both major parties claimed over 200,000 members each in election years, by the 1990s the National Party, for example, was reported to have fewer than 50,000 ordinary members during election years, with the Labour Party claiming even fewer. Needless to say, these developments troubled social conservatives and increased the threat to established interests. The push toward judicial empowerment followed. In 1968 Geoffrey Palmer, then a young academic, had in his own words “recently returned from studying the mysteries of the United States Constitution.” He warned against a Bill of Rights on the grounds that it was not needed, would catapult the judiciary into political controversy, and would be “contrary to the pragmatist traditions of our politics.”73 But two decades later, when the white bourgeoisie’s control over New Zealand’s major policy-making arenas was challenged, that same speaker—now Sir Geoffrey Palmer—in his capacity as Minister of Justice in the two-term Lange Labour government (1984–1989) and later as Prime Minister (1989–1990) initiated and championed the empowerment of New Zealand’s judiciary through the enactment of the 1990 New Zealand Bill of Rights Act. In the second half of the 1980s, the very same politicians who introduced comprehensive neoliberal economic reform in New Zealand in 1984,74 as well as other politicians representing the policy preferences of the country’s white, urban, high-income constituents, reacted to the changing economic and demographic conditions and the growing popular political pressure on New Zealand’s majoritarian policy-makers by initiating and carrying out what scholars have described as “the rights revolution of New Zealand,” the hallmark of which was the 1990 enactment of the NZBORA.75 The White Paper proposed by the Labour government in 1985 advocated a fully entrenched bill as supreme law, controlling parliamentary legislation through judicial review. It documented the limited nature of existing checks on parliamentary and executive power, appealing to New Zealand’s obligations under the International Covenant on Civil and Political Rights (ICCPR). The authors considered the proposed bill a vital check on New Zealand’s legislature and executive power. However, the White Paper bill failed

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to garner political support, and by late 1987 it was evident that public opinion was against the proposed Bill of Rights. This fierce opposition forced Geoffrey Palmer to abandon his original proposal for an entrenched bill; instead, he introduced a nonentrenched version—the New Zealand Bill of Rights Act 1990. This was introduced in October 1989 and became law on August 28, 1990. Given the ideological preferences that surrounded the Bill of Rights initiative, it is not surprising that in spite of the Justice and Law Reform Committee’s suggestion that social rights be included in the NZBORA,76 their inclusion was successfully opposed by Palmer, and these rights were ultimately omitted from the NZBORA. In contrast, even the explicit inclusion of property rights guarantees in the bill did not prevent Palmer from saying that “unless the New Zealand system pays better attention to the taking of property, international law issues could arise that could have serious consequences. Furthermore, the effect on the investment climate is not likely to be favorable.”77 The NZBORA, although not entrenched, has gained sufficient legal and political authority to allow the courts to exercise most of the powers of scrutiny and control that they would have had under a system of full-scale judicial review. As we have seen in earlier chapters, the New Zealand Court of Appeal (NZCA) has taken the liberty of expanding the scope of review power that has been delegated to it by the nonentrenched bill by according it a de facto entrenched status. Drawing on this expansive interpretive approach, the NZCA has gradually become one of the country’s most significant policy-making bodies, dealing with the most salient moral dilemmas and political controversies on New Zealand’s public agenda.78 The Court’s generous interpretation of its judicial review powers under the NZBORA reflects the current Chief Justice Dame Sian Elias’s view, expressed prior to her elevation to the bench, that “it is time to recognize that the notion of arbitrary parliamentary sovereignty represents an obsolete and inadequate idea of the New Zealand Constitution.”79 The bill’s de facto entrenched status appears to match the expectation of Geoffrey Palmer, the act’s author, that the Bill of Rights, although formally nonentrenched, would gradually acquire sufficient legal and political authority to allow the courts to exercise at least some of the powers of scrutiny and control that they would have had under a system of full-scale judicial review. Indeed, as Palmer has recently stated, the Bill of Rights “has been more effective than many had thought it would be.”80 In sum, the enactment of the NZBORA, along with other new laws, such

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as the Human Rights Act of 1993 and the Privacy Act of 1993, was intended not only to elevate New Zealand’s traditional set of classic civil liberties to the status of prime constitutional rights, but also to empower New Zealand’s judiciary by delegating policy-making authority from parliament to the NZCA. Not surprisingly, the judicial elite and the oligarchy of wealth and political power, seeking to preserve their hegemony and to increase their impact on policy-making outcomes, quickly endorsed the constitutional change. Opposition to the enactment of the NZBORA came mainly from leftist opponents of privatization and from Maori activists who perceived the measure as a threat to the status of the Treaty of Waitangi and the success of future Maori land claims.

The Origins of South Africa’s Constitutional Revolution Yet more evidence to confirm the hegemonic preservation thesis is found in the struggle of South Africa’s white ruling elite during the late 1980s and early 1990s to ensure the inclusion of an entrenched Bill of Rights and active Constitutional Court in the post-apartheid political pact in South Africa.81 South Africa’s human rights record was nothing short of appalling for the better part of the last century. The notorious apartheid regime symbolized one of the last bastions of European colonialism and white supremacy in the post–World War II era. It is a well-documented, undisputed fact that until the early 1990s the National Party–controlled political system in South Africa functioned so as to entrench the privileges of white inhabitants while depriving black South Africans of even the most basic human rights. Explicitly discriminatory policies included: the Population Registration Act (1950), which classified every citizen into one of four racial categories (African, Coloured, Indian, or White); the prohibition of interracial sex and marriage; a strict racial segregation in the entire public domain; large-scale forced removals in thriving multiracial neighborhoods; bans on any meaningful political participation for nonwhites; the creation of the notorious Bantustans (effectively impoverished rural ghettoes); and the almost exclusive allocation of material resources to white communities (who form approximately one-seventh of the population). These policies and many others similar in nature promoted and reflected a reality of severe political, legal, social, and economic inequality between white and black South Africans. Until 1990, when President F. W. de Klerk lifted the ban on the African

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National Congress (ANC) and released its most prominent leader, Nelson Mandela, from prison, South Africa had excluded the vast majority of its population from participation in democratic politics, favoring instead a strict and select parliamentary sovereignty. Prior to the adoption of the postapartheid constitutional order, South Africa had had three previous constitutions, adopted in 1910, 1961, and 1983. These constitutions showed little or no awareness of the multiethnic and multilingual nature of South African society, catering almost exclusively to the white, Christian, Afrikaans minority instead. Indeed, prior to the enactment of the 1993 interim Bill of Rights (replaced by the final Bill of Rights in 1996), very few countries in the postwar era had seen a wider and more tragic gap between popular will and constitutional arrangements than that which prevailed in South Africa. Up until the democratic election of 1994, South Africa excluded over 80 percent of its population from any meaningful participation in democratic politics while strictly adhering to parliamentary sovereignty. Calls for entrenched rights and for the establishment of active judicial review were strongly and consistently opposed by South Africa’s ruling elites throughout the twentieth century. Until the late 1980s, the National Party (NP) leaders insisted that a bill of rights should not form part of any future constitutional order in South Africa, arguing that an emphasis on individual interests would be inconsistent with the political and religious tradition of Afrikanerdom, which preferred to emphasize the state and other supposed communitarian values over individual interests. The long-standing antagonism toward judicial review echoed former Boer President Paul Kruger’s famous century-old declaration that the power of the courts to test legislation was “a principle invented by the Devil!”82 Accordingly, the South Africa Amendment Act 1958 provided that “no court of law shall be competent to enquire into or to pronounce upon the validity of any law passed by parliament.” Prime Minister Hendrick Verwoerd rejected calls for the adoption of an entrenched bill of rights by the Natal Provincial Council, stating that it would be unthinkable, as “no suggestion was made as to how right could be effectively guaranteed without sacrificing the sovereignty of Parliament.”83 The passage of the 1961 Republican Constitution secured the dominance of parliamentary sovereignty. Section 59 specifically incorporated the language of the South Africa Amendment Act, thus constitutionalizing the exclusion of the courts from substantive review and explicitly limiting any judicial review over substantive legislative enactments affecting the language clause, which guaranteed

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the equality of English and Afrikaans. A similar attitude toward the constitutionalization of rights and the establishment of judicial review was reflected in the 1983 constitution. By the early 1980s, however, apartheid had entered a crisis born of its own contradictions and of new pressures emanating from a changing world. Domestically, the excessive costs of enforcing apartheid through a maze of social controls amidst continued violence and economic recession rendered it an unworkable scheme. As white professionals began to emigrate in the 1970s and 1980s, the country encountered shortages in the skills necessary to operate its sophisticated economy. In spite of the large presence of multinational corporations, which had always viewed South Africa as something of a gold mine (both literally and metaphorically), pressure from the international community in the form of economic and diplomatic sanctions sent a signal to the National Party that the pursuit of steps toward the abolition of at least some of their apartheid policies was necessary. The adoption of the 1983 Constitution marked the first step in this direction. In the face of increasing internal resistance and international isolation in the early 1980s, the South African government looked to the political recuperation of the “Indian” and “coloured” communities (but not the huge African majority) as a means of broadening its social base. The outcome of this shift in policy was the adoption of the 1983 Constitution, which extended the franchise to “Indians” and “coloureds” in a tricameral legislature, with its jurisdiction distributed according to a vague distinction between “particularistic” and “general” affairs. However, two mechanisms ensured that power remained safely in the hands of the dominant white party. First, the running of government was effectively centralized under an executive State President who had extraordinary powers in both the executive and the legislative arenas. Second, all significant decisions within the legislature (the election of President, for example) would automatically be resolved by the 4:2:1 ratio of white, “colored”, and “Indian” representatives, which ensured that even if the “Indian” and “colored” Houses of Parliament voted in unison, the will of the white House would prevail. Resistance from the two targeted communities, as well as an escalation of rebellion in the black community, sealed the fate of the 1983 Constitution. The attempt to preserve white hegemony amidst an uprising of the black African majority while maintaining the principle of parliamentary supremacy was put to rest, and the idea of constitutional entrenchment of rights and the establishment of judicial review was rediscovered by the white elites.

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Within a few years, it became clear that the days of legalized racial segregation were numbered. Cut off from flows of international capital, the South African economy began to shrink during the 1980s, driving the government to seek to rehabilitate itself in the eyes of the Western world. Meanwhile, the collapse of communism in the Eastern Bloc deprived the ANC of its main sources of political, financial, and military support. Driven by their intertwined self-interests, the two sides forged a relatively peaceful political transition that granted black majority rule in return for “a continued place for whites in South Africa’s economic sun.”84 When it became obvious that the apartheid regime could not be sustained by repression, the incentives of political and economic power-holders among the white minority rapidly changed, and a sudden conversion to the supposed virtues of a bill of rights followed. The call to institute a bill of rights came from the old enemies of constitutionalization—the National Party government and other political representatives of the white minority, who suddenly appeared to discover the charms of entrenched rights and judicial review while hastily abandoning their historic commitment to parliamentary sovereignty. By reconciling themselves to the idea of an entrenched constitution that would include a constitutional catalogue of rights and a constitutional court with powers of active judicial review, the apartheid government hoped to maintain some of the privileges enjoyed for so many decades by whites. Conscious judicial empowerment through constitutionalization followed.85 In April 1986, only two years after publicly declaring that a bill of rights would be inconsistent with the political and religious tradition of Afrikanerdom, Minister of Justice H. J. Coetsee asked the South African Law Commission to investigate the subject of “group and human rights.” The resulting research was made public in March 1989 when the Law Commission released a widely disseminated Working Paper, in which it recommended that South Africa should adopt an entrenched bill of rights. A further Interim Report on Group and Human Rights was published by the Law Commission in August 1991, in which it reiterated its support for the idea of adopting an entrenched bill of rights and included a draft charter for discussion.86 The commission in this way hoped to bolster some of the privileges reserved for so long for mostly white elites. Ironically, the Law Commission, on which not a single black person was represented, concluded its report by declaring, “No matter who governs this country, it goes without saying that if we are to avoid dictatorship—even the dictatorship of a democratic major-

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ity—we need such a bill.”87 The quick abandonment of the anti–bill of rights rhetoric by the National Party and other representatives of the white elite was completed in February 1990 when President F. W. de Klerk officially announced in Parliament that a future constitution would need to include a bill of rights as proposed in the Law Commission’s Working Paper. As we have seen in Chapter 1, the lifting of the ban on the ANC brought white elites and the black majority into public engagement for the first time. The Convention for a Democratic South Africa (CODESA) was launched in December 1991 to negotiate a democratic transition, but these negotiations collapsed in mid-1992 and were followed by escalating violence and mass social upheaval. In 1993, the parties entered into a series of bilateral negotiations that yielded an agreement on a two-phase transition to democracy through constitutional reform. The first stage was the drafting of the 1993 interim Constitution (which came into force in April 1994). The second phase, which completed South Africa’s constitutional revolution, was the drafting of the 1996 final Constitution by the Constitutional Assembly.88 By 1991, most white constituencies had accepted the idea of a bill of rights in its entirety, adopting a view that called for the abandonment of traditional parliamentary supremacy and the establishment of judicial review. The National Party eventually published its own version of a “Charter of Fundamental Rights” in February 1993, keenly advocating a transitional bill of rights that would constrain the power of the National Assembly and in which the National Party would have a minority representation. The draft proposal of the Charter stated that the object of the Charter is not to create or regulate legal relations amongst persons themselves. The main purpose of the Charter is to protect individuals against abuse of power by state authorities. It is not intended as a direct source of rights and obligations among individuals themselves, for example, for a dissatisfied employee to sue his employer on the grounds of alleged infringement of his fundamental rights. The Charter is a standard with which the acts of state authorities towards a citizen must comply.89

Both the 1993 interim Constitution and the 1996 final Constitution possess two distinct features that are unprecedented in South African constitutional history. First, the Constitution entrenches constitutional supremacy and a sovereign Bill of Rights. Legislative and executive acts of government can now be declared invalid if they are found to violate fundamental human rights. Second, the Constitution established a Constitutional Court

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with final jurisdiction over constitutional matters. Roelf Meyer, the National Party government’s chief constitutional negotiator, summed up the outcome of the first stage of constitutionalization from the NP’s point of view: “we wanted to build in an assurance that the Constitution be based on the principles of a constitutional state. We wanted individual rights and a Constitutional Court. So we got what we wanted.”90 The real battle over the constitutionalization of rights in the new South Africa revolved around three major bones of contention: the scope and nature of property rights, workers’ rights, and minority language educational rights under the final Bill of Rights. Throughout the pre-1996 negotiations, the National Party and the Democratic Party (both holding a base of substantial business support) advocated the constitutional entrenchment of the strongest possible protection of individual property rights (including explicit antiredistribution provisions) alongside the narrowest viable protection of workers’ rights to strike, unionize, and bargain collectively. The ANC meanwhile advocated a constitutional guarantee for extensive land reform through expropriation, thereby allowing for erosion of the traditional status of property rights. It also argued that, given the stark power imbalances between employers and employees, employees’ rights to strike should be constitutionally entrenched, whereas employers’ rights to lockout should not. The long and arduous negotiations culminated in a package deal adopted early in May 1996. The NP won out conclusively on the property rights front, ensuring that the state was barred from implementing “arbitrary or unreasonable” land redistribution measures.91 Moreover, any departure from the Bill of Rights’ “property clause” was made subject to judicial scrutiny of its constitutionality vis-à-vis the Constitution’s “limitation clause” (“limitation is reasonable and justifiable in an open and democratic society”).92 Employers’ rights to lockout were not included in the final Bill of Rights, but the Labour Relations Act continues to permit employers’ recourse to lockout. In return for these concessions, the NP accepted the ANC’s insistence on the exclusion of any state duty to fund single-language schools, particularly Afrikaans-language institutions, in post-apartheid South Africa.93 The NP’s hard line and ultimate victory on the property clause front reminds us that the struggle against the apartheid regime was not limited to voting and legal segregation—it also concerned economic and social inequality.94 Not only was South Africa legally racist, it also had one of the world’s worst situations of material inequality, with the white minority (ap-

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proximately 15 percent of the population) owning 87 percent of the land and earning on average eight times the income of the black African majority (approximately 75 percent of the population), and with the top 5 percent of the population consuming more than the bottom 85 percent, resulting in a Gini coefficient of 0.61 (matching Brazil and Nigeria as major developing countries with the highest levels of inequality). The nexus of provisions and institutions established by the apartheid regime divided the land of South Africa into zones of racial exclusivity, whereby one-eighth of the land was set aside for black South Africans while the remaining seven-eighths of the land was for the exclusive use of people classified as “other than Black.” This outrageously unequal land distribution was accomplished, inter alia, by means of the forced and brutal relocation of about 3.5 million people from the early 1960s until the mid-1980s. Furthermore, economic resources were allocated in a deliberately discriminatory manner through a program of institutionalized inequality that purchased white prosperity at the expense of the vast majority of black South Africans. State expenditure was heavily biased in favor of white inhabitants, while the allocation of land and other natural resources ensured that whites would always be those most favored by the allegedly “invisible hand” of the market. The result was the creation of an orchestrated and self-perpetuating imbalance in distribution of income among the different ethnic groups in South Africa. In 1990, just a few months before the formal abolition of apartheid, 95 percent of the productive capital in the country was held by four white conglomerates. As Michael Mandel notes, this oligarchy of wealth is one of the things the white elite attempted to protect through “a classic property-protecting Bill of Rights.”95 In sum, the white elite and its parliamentary representatives, faced with the inevitable prospect of an ANC-controlled parliament, endorsed a bill of rights as a means of fencing off certain aspects of their privilege from the reach of majoritarian politics. Yet if the claim that anti-redistribution and pro–status quo interests informed the entrenchment of a constitutional catalogue of rights and the establishment of judicial review in South Africa is correct, how can we explain the fact that by the early 1990s, even before de Klerk had committed to a negotiated settlement and a bill of fundamental rights, Nelson Mandela and the ANC had declared themselves converts to the idea of constitutional limitations on sovereignty through the adoption of a constitutional bill of rights? This was a far cry from the socialist action program of the Freedom Charter advocated by the ANC throughout the era of apartheid.96 I would

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suggest that this change can be explained by the ANC’s gradual transformation from a revolutionary opposition movement to a governing party (by the time the 1996 constitutional pact was signed, the ANC had been in power for over two years); and, more specifically, by international economic pressure, together with the ANC’s need to prevent capital flight and to attract foreign investment. Without a constitutional guarantee of property rights, for example, the new regime in South Africa would have been unable to reassure domestic and international economic elites that regardless of significant changes their predictability interest would remain secure. Massive, almost unconditional public support also helped the ANC’s leadership to renege on its long-term commitment to adopting a progressive, redistributionoriented constitutional regime. However, the ANC did not “sell out” the revolution in South Africa, because the revolution never actually materialized. Instead, there was a negotiated settlement, designed in no small part to head off the possibility of revolution. As Ian Shapiro notes, “The political pact that led to the transition seems underwritten by an implicit social contract between the new political elite and those with economic power: the still overwhelmingly white landed and business elites.”97 The ANC government has so far avoided putting large-scale expropriation or increases in taxation on the table, it has not advocated any significant redistribution of material wealth or land, it has not interfered with the self-protection of gated communities, and it has tended to toe the line as far as neoliberal economic reform is concerned. This has resulted in an unemployment rate of nearly 30 percent (up from 17 percent in 1995) and growing disillusionment among South Africa’s poor black population.98 The introduction in July 1996 of the Growth, Employment, and Redistribution (GEAR) program (a set of explicitly neoliberal economic policies) as well as the ANC government’s continued support for the strict constitutional protection of negative liberties at the expense of positive subsistence rights simply reflect the ANC’s commitment to “business-friendly” policies. The GEAR strategy reinforced the government’s emphasis on fiscal restraint, containment of inflation, and export promotion as ways to enhance competitiveness. The liberalization of foreign exchanges, the privatization of state enterprises, and the creation of a conducive and enabling environment for foreign investment were all recognized as crucial economic goals. Moreover, GEAR recommended greater labor market flexibility, possibly via a two-tier system involving the deregulation of semi- and unskilled work, and

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the exemption of small business from provisions of labor legislation. These business-friendly measures have been accompanied by continuous erosion in the political significance of the Congress of South African Trade Unions (COSATU)—the single largest trade union, which aligned formally with the ANC and the South African Communist Party—in an era in which the ANC is no longer an opposition party. Attempts by the political representatives of white settlers and domestic elites to protect their joint interests through the constitutionalization of rights, especially property rights, is not new to the African continent. As recent work has shown, British colonial decision-makers and domestic elites did not trust that the new political authorities in many soon-to-be-decolonized African countries would protect the interests of their principal constituencies—white settlers, urban intelligentsia, and foreign investors—and were therefore eager to establish seemingly autonomous judicial systems and land registration apparatus and to adopt entrenched constitutional catalogues of rights in these countries prior to completion of the decolonization process.99 While for many years Britain was unwilling to incorporate the provisions of the European Convention on Human Rights into its own legal system (let alone to enact a constitutional bill of rights of its own), it did enthusiastically promote the entrenchment of European Convention rights in the “independence constitutions” of newly self-governing African states as devices for protecting established interests from the “whims” of independent majoritarian politics. The constitutionalization of rights in the Gold Coast (Ghana) in 1957, Nigeria in 1959, and Kenya in 1960 (to name only three examples) followed this pattern. Consider too the timing of the June 1991 constitutionalization of rights in British-ruled Hong Kong, which took place less than two years after the British Parliament had ratified the Joint Declaration on the Question of Hong Kong, whereby Britain was to restore Hong Kong to China in July 1997; and the establishment of judicial review in Egypt in 1979 amidst a resurgence in Islamic fundamentalism, followed by the crucial role of the Egyptian Supreme Constitutional Court in advancing a relatively liberal interpretation of Shari’a (Islamic law) rules.100 As my analysis of the 1992 constitutional revolution in Israel and my brief discussion of other constitutional reforms suggest, the constitutional entrenchment of rights and the establishment of judicial review do not develop in isolation from a country’s central political struggles and economic

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interests. To best serve their own interests, hegemonic political, economic, and judicial elites attempt to shape the institutional structure within which they operate. Constitutional reform is one such arena in which these power struggles occur. Because entrenched rights and judicial review (like other semiautonomous, professional policy-making institutions, such as central banks, electoral committees, transnational trade organizations, supranational financial bodies, and judicial tribunals) are self-enforcing institutions that usually limit the flexibility of political decision-makers, the actors who voluntarily establish such institutions must have an interest in abiding by such limits. Moreover, because bills of rights and judiciaries lack the independent power to enforce their mandates, their authority depends mainly on the degree to which elites find judicial empowerment beneficial to their own political, economic, and cultural hegemony. Governing elites in divided, rule-of-law polities face a constant struggle to preserve their hegemony. Such elites are likely to advocate a delegation of power to the judiciary when the following three conditions exist: when their hegemony and control over crucial majoritarian decision-making arenas are increasingly challenged by peripheral groups and their policy preferences; when the judiciary in that polity enjoys a relatively high reputation for rectitude and political impartiality; and when the courts in that polity are generally inclined to rule in accordance with hegemonic ideological and cultural propensities. In many countries (such as Israel, New Zealand, and South Africa), the intentional empowerment of the judiciary by threatened but still dominant political powers has been strongly supported by influential coalitions of domestic neoliberal economic forces that view the constitutionalization of rights as a means of promoting economic deregulation, and by national high courts seeking to enhance their political influence and international profile. Indeed, the contemporaneous emergence of a neoliberal economic order and the movement toward constitutionalization in these countries is anything but accidental or fortuitous. On the contrary, the two trends go hand in hand and in fact complement each other; they share a common adherence to a “small government” worldview, a commitment to an expansive conceptualization of the private sphere, and an uneasy attitude, even hostility, toward the less than predictable political sphere. The causal mechanisms behind the trend toward constitutionalization and judicialization in divided polities have not been adequately delineated by the major theories of constitutional transformation. The democratic expan-

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sion, evolutionist, functionalist, new institutionalist, and electoral market models cannot provide a full explanation for the recent history of constitutional entrenchment of rights and judicial review in Israel, Canada, New Zealand, and South Africa. My brief analysis here of constitutional politics in these four countries reveals that their constitutional revolutions, while admittedly different from each other in scope and context, can be more productively analyzed in terms of an interest-based hegemonic preservation approach—that is, judicial empowerment through the constitutionalization of rights and the establishment of judicial review is often a conscious strategy undertaken by threatened political elites seeking to preserve or enhance their hegemony by insulating policy-making from popular political pressures, and supported by economic and judicial elites with compatible interests. Moreover, the hegemonic preservation thesis serves as a reminder that seemingly humanitarian constitutional reforms often mask an essentially self-serving agenda. The constitutionalization of rights, in other words, is often not so much the cause or a reflection of a progressive revolution in a given polity as it is a means by which preexisting and ongoing sociopolitical struggles are carried out.

CHAPTER

4

Constitutionalization and Judicial Interpretation of Rights

From Kant and Faust to Rawls and Madonna, we have known that autonomous individuality is best achieved by those whose material needs have been secured. Negative freedom cannot secure those needs. Negative liberty, which our legal regime and our rights talk are about, is good if you have cash. David Abraham, Are Rights the Right Thing?

Having reviewed the political origins of constitutional transformation in Canada, Israel, New Zealand, and South Africa, in this chapter I investigate the impact of constitutionalization of rights and fortification of judicial review in these four polities on their national high courts’ attitudes toward progressive notions of distributive justice. Constitutions and independent courts are frequently viewed as providing necessary formal safeguards against the often capricious political arena. Likewise, constitutionalization of rights and establishment of judicial review are widely perceived as having a significant positive impact on the status of rights and liberties by providing national high courts with the necessary institutional framework to become more effective in their efforts to protect the basic rights of disadvantaged groups and individuals. Canonical constitutional law scholarship tends to view the America’s Bill of Rights and that country’s deeply rooted practice of active judicial review as factors that have long held American political institutions to a paramount commitment of protecting fundamental minority rights and individual freedoms. But critical scholars who have focused on the history of the U.S. Supreme Court’s constitutional rights jurisprudence have suggested that the Court’s actual record of rights jurisprudence is far less impressive than its public image. According to their studies, the Court’s rights jurisprudence has 100

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been inclined to reflect and promote national metanarratives, prevailing ideological and cultural propensities, and the interests of ruling elites and economic power-holders.1 On the one hand, there is little doubt that at least for the better part of the post-Brown era, the U.S. Supreme Court has been a stronghold of classic civil liberties, such as freedom of expression and criminal due process rights. As a result, these liberties have gained a near-sacred status in American mass culture unmatched in any other country’s. On the other hand, the widely celebrated U.S. Bill of Rights did not prevent the U.S. Supreme Court from reconfirming the legal status of slavery and servitude before the Civil War2 or from blocking labor reform initiatives in the first decades of the twentieth century.3 The Supreme Court did not protect Japanese Americans who were held in detention camps during World War II,4 nor did the First Amendment prevent the Supreme Court from upholding the persecution of Communist Party members during the McCarthy era under a law that made it illegal to “advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States.”5 Nor did the Fourteenth Amendment’s Equal Protection Clause prevent the Supreme Court from deciding that the poor were not qualified as a “suspect class” under the legislation since they were not subject to overt discrimination and were neither an easily identified nor a politically powerless group.6 On numerous occasions the Court defended Article 1’s Contract Clause at the expense of workers’ rights and labor standards. Similarly, it invalidated gun control and public health laws in the name of protecting the National Rifle Association’s and the tobacco industry’s rights. With these examples in mind, it is fair to say that whereas its record of protecting classic civil liberties over the past five decades is quite impressive—from Lochner to Buckley, from U.S. v. Lopez to Shaw v. Reno—the U.S. Supreme Court has been anything but a bastion of progressive notions of distributive justice.7 At any rate, most works that examine the contribution of judicial review to the protection of disenfranchised groups and individuals are preoccupied almost exclusively with American constitutional history and with the United States’ Supreme Court’s constitutional jurisprudence. Drawing on a systematic analysis of the interpretations given by national high courts of the rights protected by the newly enacted bills of rights in Canada, New Zealand, Israel, and South Africa, in this chapter I seek to identify a set of hegemonic principles in contemporary judicial interpreta-

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tions of constitutional rights in the new world of constitutionalism. I then attempt a realistic assessment of the current potential for advancing progressive concepts of social justice through the constitutionalization of rights and rights litigation. The chapter is comprised of two major sections. I begin with a systematic quantitative-qualitative analysis of judicial interpretations of the newly enacted bills of rights by national high courts in all four countries. The analysis is based on a complete survey of all high court bill of rights cases from the date of enactment to the end of 2002. The object of this section is to determine to what extent a “negative,” or noninterventionist, conception of rights is upheld by the four national high courts at the expense of a more “positive,” collectivist conception of rights. I then proceed to examine recent constitutional jurisprudence in Canada, New Zealand, Israel, and South Africa with regard to four key issues: criminal due process rights (classic procedural rights); demarcation of the private sphere through jurisprudence concerning freedom of expression (classic “first generation” negative liberty) and formal equality in the context of sexual preference (the hallmark of progressive constitutional rights jurisprudence in the four examined countries); subsistence social and economic rights such as the right to health care, basic housing, education, social security and welfare, and an adequate standard of living (classic positive or “second generation” rights); and freedom of association and occupation in the context of labor relations (rights that can be interpreted either as providing entitlements to wider state-controlled legal protection for workers or as protecting the private economic sphere from state intervention). This comparative examination will serve to chart the vacillation between a relatively generous judicial interpretation of expansive notions of distributive justice (for example, positive rights claims, substantive equality, and workers’ rights to unionize and strike) and a narrower commitment to procedural justice, removal of “market rigidities,” and an uninhibited Lockeanstyle individual autonomy. What is more, looking at these four areas allows us to compare judicial attitudes toward two conceptions of rights: those whose full realization entails greater state activity in amending disturbing market failures in the realm of distributive justice, and those whose full realization calls for a broad definition of the private sphere by way of halting the encroaching state. This analysis should then enable us to distinguish types of policy arenas where the constitutionalization of rights could plant the seeds of social change.

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The Macro-Quantitative Picture The constitutionalization of rights in Canada, New Zealand, Israel, and South Africa has significantly affected the respective agendas of the national high courts in all four countries. As Table 4.1 illustrates, bill of rights (BOR) litigation has accounted for a significant portion of the courts’ agendas in these countries since their enactment of constitutional catalogues of rights. The volume of Charter litigation in the Supreme Court of Canada (SCC), for example, accounted for 20 percent of the Court’s docket during the last decade. While this percentage is higher than the percentage of BOR cases heard by national high courts in New Zealand and Israel (9 percent and 11 percent, respectively), the constitutional jurisprudence of these other countries reflects a similar pattern. A second interesting finding is the sharp increase in the ratio of constitutional rights cases versus regular civil cases following the adoption of constitutional catalogues of rights in the examined countries. While in 1975 (seven years prior to the adoption of the Canadian Charter) the number of constitutional rights cases accounted for approximately one quarter of the “regular” civil cases decided by the SCC, in 1989 (seven years after the adoption of the Charter) the number of constitutional rights cases outnumbered nonconstitutional civil cases decided by the Court by approximately 120 percent. A sharp increase in the ratio of constitutional rights cases to regular civil cases is also evident in the two other countries where such a comparison was possible (New Zealand and Israel). It is also interesting to note the significant difference between the rapid growth rate of rights jurisprudence in Canada following the adoption of the Charter versus the lower growth rate of rights jurisprudence following the constitutionalization of rights in New Zealand and Israel. These differences may be explained by the fact that in Canada, as in the United States, the Supreme Court has discretion over which cases it will hear, whereas in New Zealand and Israel a significant percentage of the national high court’s docket consists of mandatory appeals and appeals by right on decisions by courts of lower instance and tribunals. The SCC justices have greater institutional leverage in determining their docket, and they may therefore prioritize issues decided before them. It is also helpful to assess this recent constitutional jurisprudence in terms of the types of rights that tend to be given a more generous interpretation by the national high courts of the four countries. A well-known distinction

Criminal due process rights cases as percent of reported BOR cases (national high courts) 65% (286/440)

71% (225/317) 58% (58/101) 57% (208/365)

BOR cases as percent of reported cases (national high courts) 20% (440/2195)a

10% (317/3156)b 12% (101/842)c 11% (365/3319)d

Total number of reported BOR cases (national high courts) 440 (Apr. 1982– Dec. 2002)

317 (Sept. 1990– Dec. 2002) 101 (Feb. 1995– Dec. 2002) 365 (Apr. 1992– Dec. 2002)

0.19 : 1.11

N/A

0.14 : 1.21

0.24 : 2.17

Ratio of constitutional rights cases to regular civil cases (7th year prior to enactment of BOR to 7th year after enactment of BOR)

a. Includes all reported Supreme Court of Canada cases (April 1982 to December 2002). b. Includes all reported Court of Appeal and High Court cases (September 1990 to December 2002). c. Includes all reported Constitutional Court cases (180) and Supreme Court of Appeals cases (662) (February 1995 to December 2002). The reported Bill of Rights cases account for 56% (101/180) of all reported Constitutional Court cases. d. Includes all reported Supreme Court of Israel cases (April 1992 to December 2002).

Israel

South Africa

Canadian Charter of Rights and Freedoms (1982) New Zealand Bill of Rights Act (1990) South Africa Bill of Rights (1993, 1996) New Basic Laws (1992): Human Dignity and Liberty; Freedom of Occupation

Constitutional catalogue of rights

General profiles of the four countries’ constitutional rights jurisprudence

New Zealand

Canada

Polity

Table 4.1

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has been drawn by political theorists between negative (or “first generation”) rights, positive (or “second generation”) rights, and collective (or “third generation”) rights in which negative rights are understood as freedom from interference; positive rights include freedom to act in a positive way (entailing the provision by some individual of a valued service); and collective rights refer to communal, rather than individual, entitlement to public goods. Negative rights consist of fundamental freedoms (freedom of speech, religious tolerance, freedom from arbitrary arrest, and so on). Positive rights traditionally include social rights, such as the universal right to services meeting basic human needs (for example, health care, basic housing, education, social security and welfare, and an adequate standard of living). The term “positive rights” is often used to describe these basic social rights because they require the state to act positively to promote the wellbeing of its citizens, rather than merely refraining from acting. Thus, a positive right is a claim to something, while a negative right is a call for the prohibition of some action or the right not to be interfered with.8 Though positive rights require a more interventionist state, they remain essentially individualistic in their content inasmuch as it is the material welfare of each and every individual that ought to be secured by these provisions. Table 4.2 presents the results of a systematic analysis of interpretations of newly enacted bills of rights in Canada, Israel, New Zealand, and South Africa as given by national high courts in each of these countries. It is based on a complete survey of all the reported high court BOR cases from the date of enactment to the end of December 2002. As the data presented in Table 4.2 show, the traditional distinctions between negative, positive, and collective rights continue to provide an organizing principle for understanding dominant patterns in the contemporary constitutional jurisprudence of many capitalist democracies. In the constitutional rights jurisprudence of all four countries, there has been a clear trend toward minimal visible (redistributive and regulatory) state intervention both in the economic sphere and in what judges consider to be the protected bodily sphere. At least five interesting comparisons can be drawn from Table 4.2. First, negative rights litigation accounted for approximately 80 percent to 90 percent of all BOR cases heard by national high courts in all four countries, compared with the approximately 10 percent to 20 percent that dealt with positive rights and collective rights litigation. Second, the success rate of civil liberties and negative rights claims has ranged between 39 percent (Canada)

87% (264/303) 78% (73/93) 89% (311/349)

New Zealand

South Africa

Israel

117

33

103

118

14

7

11

19 (e.g., Egan)

42% (131/311)

55% (40/73)

43% (114/264)

39% (137/351)

Total success rate

11% (38/349)

22% (20/93)

13% (39/303)

17% (72/423)

As percent of all BOR cases

5

6

5

13 (e.g., Mahe)

Number of successful BOR claims both at the declarative and the de facto levelsd

3

3

7 (e.g., Delgamuukw) 2

Number of successful BOR claims at the declarative level but inconclusive at the de facto levele

21% (8/38)

45% (9/20)

18% (7/39)

28% (20/72)

Total success rate

BOR claims based primarily on positive rights/ collective rights rationaleb

Note: Excludes cases that dealt exclusively with technical aspects of the BOR (e.g. application, jurisdiction, etc.). Sources: The official collections of high court decisions for each of these countries are published several times a year under the following titles: the Supreme Court Reports (S.C.R.)—Canada; Piskey Din (Supreme Court Decisions, in Hebrew)—Israel; the South Africa Law Reports; and the New Zealand Law Reports. All the databases for this analysis are on file with the author. All decisions of the national high courts of the four countries are available on the Internet at www.law.wits.ac.za (South Africa); www.court.gov.il (Israel); www.droit.umontreal.ca/doc/csc-scc/en/index.html (Canada); and www.brookers.co.nz/legal/judgments/documents (New Zealand).

83% (351/423)

As percent of all BOR cases

Number of successful BOR claims both at the declarative and the de facto levels

Number of successful BOR claims at the declarative level but inconclusive at the de facto levelc

BOR claims based primarily on negative rights/ formal equality rationalea

“Negative” rights vs. “positive” and “collective” rights claims

Canada

Polity

Table 4.2

a. This category includes BOR cases that were based primarily on both claims to negative rights and claims for a clear demarcation of the boundaries of the private/economic sphere. More specifically, these BOR cases are primarily concerned with claims for freedom of expression, property rights, freedom of movement, privacy, claims against state regulation of various economic activities, rights of persons arrested or detained (excluding the right to publicly funded legal aid), claims against unreasonable search and seizure, rights of persons charged, formal equality, the right to life, the right to die, the right not to be subjected to torture or cruel treatment, the right to refuse to undergo medical treatment, etc. b. This category includes BOR cases which were based primarily on claims for positive entitlements (e.g. to education, health care, housing, running water, welfare and unemployment benefits, etc.), right to counsel and state funded legal aid, freedom of association in the labor relations context, as well as collective rights such as minority language rights, education rights, indigenous peoples’ rights to selfdetermination, affirmative action, etc. c. This category includes BOR claims that were based primarily on a rationale of negative rights / formal equality, which received the Court’s support at the abstract declarative level but not at the de facto level. For example, in the landmark decision in Egan v. Canada ([1995] 2 S.C.R. 513), the SCC ruled in a 5:4 majority that a law defining “spouse” so as to exclude homosexual couples unfairly discriminated against homosexuals and violated section 15 of the Charter. This decision expanded the recognition in sexual preference as a legitimate basis for BOR anti-discrimination/formal equality of opportunity claims. The specific discriminatory provision in question, however, was reinstated by the “reasonableness” test of section 1. d. This category includes BOR claims that were based primarily on a rationale of second-generation positive rights or third generation collective rights, and received the court’s support both at the abstract declarative level and at the de facto level. In Mahe v. Alberta ([1990] 1 S.C.R. 342), for example, the SCC held that in accordance with s. 23 of the Charter (which guarantees minority language education rights), the Alberta provincial government was responsible for actively providing and funding educational facilities and intensive instruction in French for the francophone minority in that province, as well as for allowing proportional representation of French-speaking parents in the management of their children’s French-language education. e. This category includes BOR claims that were based primarily on a rationale of second generation positive rights or third-generation collective rights, and received the Court’s support at the abstract declarative level but not at the de facto level. In Delgamuukw v. British Columbia ([1997] 3 S.C.R. 1010), for example, the SCC significantly expanded the judicial recognition of Aboriginal land rights in Canada, but at the same time failed to grant any substantive protection of these rights, since it simultaneously established strict legal tests for ownership. The result has been that the vast majority of Aboriginal people have already lost their rights and title to traditional lands, and are thus not entitled to compensation, except in very particular circumstances.

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to 55 percent (South Africa), whereas the success rate of positive rights and collective rights claims has ranged between 18 percent (New Zealand) to 45 percent (South Africa). Third, the relative success rate of positive and collective rights claims were higher in Canada (28 percent) and South Africa (45 percent) than in New Zealand and Israel. This finding may be explained by the fact that while second generation, positive rights are protected at least implicitly by the constitutional catalogue of rights of all four countries, positive rights (such as the right to housing, health care, social security, and education) are explicitly protected only in South Africa (sections 26–29 of the 1996 Constitution), while collective rights (such as minority language and education rights as well as certain rights of aboriginal peoples) are explicitly protected only in Canada (by sections 16–23 of the Canadian Charter of Rights and Freedoms and by section 35 of the Constitution Act 1982). In comparison, the constitutional scope of protection of such rights (equity rights, right to life) by the NZBORA is narrower and is confined to an unqualified right to human dignity in the new Israeli Basic Laws. Fourth, except in South Africa, where constitutional rights jurisprudence is still in a formative stage, a relatively high success rate for negative rights claims is combined with a relatively low success rate for positive rights and collective rights claims in each country (for example, Canada, with 39 percent and 28 percent respectively; and New Zealand, with 43 percent and 18 percent respectively). Fifth and finally, the difference in absolute numbers between cases involving successful negative rights claims and cases involving successful positive rights and collective rights claims is tremendous. Whereas negative rights claimants won 137 cases in the SCC between 1982 and 2002, claimants for positive and collective rights had only 20 victories (or a ratio of 7 to 1). In South Africa, the figures are 40 to 9 (or a ratio of approximately 4.5 to 1), in New Zealand 114 to 7 (or a ratio of 16 to 1), and in Israel the numbers are 131 to 8 (or a ratio of 16.5 to 1).

Criminal Due Process Rights Criminal due process rights include constitutional guarantees against arbitrary detention or imprisonment, against unreasonable search and seizure and the admissibility of illegally obtained evidence, and against retrospective changes to the criminal code. They also establish constitutional protection of the presumption of innocence, the right to remain silent, the right to counsel, the right to be tried within a reasonable period of time, and the right to a

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fair trial or hearing. This core bundle of procedural rights also entails a set of secondary procedural rights aimed at protecting detainees, suspects, and the accused against abuses of power by the police and other state authorities. As Table 4.1 illustrates, the greatest part of judicial activity under the Canadian Charter of Rights and Freedoms, Israel’s new Basic Laws, the New Zealand Bill of Rights Act, and the South Africa Bill of Rights have concerned the questions of criminal procedure—questions that have also formed the bulk of U.S. constitutional litigation for years. These include the right to counsel; burden of proof; trial within reasonable time; admissibility of improperly obtained evidence; and limitations on search and seizure to name but a few. As Table 4.1 shows, 65 percent of the Charter cases decided by the SCC between 1982 and 2002 were criminal due process and legal rights cases. In New Zealand (1990–2002), South Africa (1995–2002), and Israel (1992–2002) these figures were 71 percent, 58 percent, and 57 percent respectively.9 In short, criminal due process cases tend to account for the bulk of constitutional litigation in countries that have recently enacted bills of rights. This trend can be explained in a number of ways. First, it seems that following the enactment of any bill of rights, many criminal procedure cases simply frame what would have previously been “ordinary” due process cases in terms susceptible to bill of rights litigation. Second, in numerous criminal appeals to higher courts, defense lawyers draw on procedural justice claims (often in lieu of convincing substantive arguments or evidence) to defend their clients’ interests. Third, unlike many other arenas potentially influenced by bills of rights, the implementation of constitutional due process rights involves a relatively low number of intervening socioeconomic variables that might obscure judicial interpretation. In other words, the distance between adjudication and implementation is shorter when it comes to due process rights, as compared with courts’ fairly limited control over the implementation of equality rights or freedom of expression guarantees. Fourth, although members of traditionally disadvantaged groups have been among the chief beneficiaries of the constitutionalization of criminal due process rights, procedural rights are formal rather than substantive. Therefore, some commentators would argue, their enforcement does not require real change in the balance of power in society, let alone the adoption of meaningful wealth redistribution schemes or of revolutionary notions of substantive equality. Fifth, due process rights, which safeguard individuals from state intrusion into their physical and mental privacy through guaran-

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tees against unwarranted search and seizure, cruel and unusual punishment, arbitrary arrest and detention, and so forth, are closer in their underlying rationale to the prevalent view of a neoliberal society, which welcomes judicial intervention to protect the private sphere from a malevolent interventionist state. From a qualitative perspective, criminal due process cases have been celebrated as showcasing the new bills of rights’ success in protecting basic rights in all four countries. Three such cases (G’nimmat, Nahamias, and Society for Law Victims) are among the Israeli constitutional revolution’s most frequently cited benchmarks.10 The G’nimmat case dealt with the constitutionality of a warrant of arrest until completion of proceedings, citing the guarantee of personal freedom in Basic Law: Human Dignity and Liberty. The Supreme Court of Israel (SCI) held that the warrant of arrest that had been issued against Mr. G’nimmat violated his basic right to personal freedom, raising the standard of evidence required in order to detain suspects for a long period of time prior to trial. In Nahamias, the Court protected the private sphere and placed strict limitations on the use of covert surveillance and wiretapping by the police. In the same spirit, in Society for Law Victims the Court drew, inter alia, on the fundamental right to human dignity to declare void an administrative regulation that allowed for the imposition of a twenty-one-day imprisonment on defaulting debtors for failure to disburse their debt within a reasonable amount of time. In this context, it is important to note that despite the growing inclination of the SCI to give the provisions of Basic Law: Human Dignity and Liberty a generous interpretation when dealing with cases involving due process and legal rights, the Court was much less vigilant at least until the late 1990s in protecting the legal rights of security detainees and prisoners (almost all of whom were Arab-Israelis and Arab residents of the Occupied Territories).11 For example, in 1993—less than a year after the adoption of Basic Law: Human Dignity and Liberty—the Court upheld a decision by the government to deport 415 Hamas activists to Lebanon without allowing the deportees the right to a fair hearing and in spite of provisions of the fourth Geneva Treaty that explicitly prohibit any kind of collective deportation from military occupied territories.12 In a series of rulings in the mid-1990s, the SCI drew on the legal concept of necessity to uphold the legality of inhumane treatment and systematic torture of Palestinian detainees by the Israeli security services.13 The notion that fundamental due process and privacy guarantees ought to

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be respected even in situations involving national security concerns, however, has gradually established itself in SCI jurisprudence. In the 1999 GSS (General Security Service) case—one of the SCI’s most important rulings over the past decade—the Court relied upon Basic Law: Human Dignity and Liberty (specifically section 4, which reads, “All persons are entitled to protection of their life, body and dignity” and section 5, which protects personal freedom) to outlaw the use of “moderate physical pressure” on Arab-Israeli and Palestinian detainees by the GSS.14 Upholding the justiciability of national security matters, the Court stated that every administrative authority (including the GSS) wishing to interrogate a person must do so lawfully, under statutory provisions.15 As there was no provision under current Israeli law regulating the GSS’s operation, let alone authorizing its interrogators to use special investigative powers (including the exercise of physical force), the Court effectively turned the problem over to the Israeli legislature and set out the task of authorizing GSS interrogations (by enacting a law that would withstand the provisions of both the Basic Law and the Court’s review). The Court added that a “reasonable investigation,” even under circumstances of crucial national security needs, was an investigation without torture or the use of cruel, inhumane, and degrading treatment of the suspect. This landmark ruling marked a de jure termination of the systematic use of various techniques of torture on Arab-Israeli and Palestinian detainees. Protecting the detainees’ private sphere (namely, their physical autonomy) was one of the major moral principles upon which the Court’s decision was based. In a similar spirit, the Court ordered the Israeli security services to curtail its use of the “administrative detention” procedure, whereby suspected members of outlawed political and paramilitary organizations (primarily in the Occupied Territories) were detained for months, and in some cases even years, by the Israeli security services without trial or any other basic feature of legal due process. Following this ruling, the SCI went on to order the immediate release of several Lebanese citizens who had been detained in Israel without trial or any other legal rights since 1987. (These detainees were being held as potential “bargaining chips” for future negotiations with fundamentalist Islamic groups in Lebanon.)16 The high point of this line of fairly progressive due process jurisprudence was reached in late 1999, when a special bench of eleven Supreme Court judges delivered a key decision striking down an expansive provision in the Military Justice Law. Under this provision a soldier could be detained and

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held under investigation by the military police for up to ninety-six hours prior to being brought before a military judge. By a majority of 10 to 1, the Court held that this provision conflicted with Basic Law: Human Dignity and Liberty, as it infringed upon personal freedom in an unreasonable manner. The right to personal freedom, the Court ruled, [i]s not an “ordinary” constitutional right, but rather a constitutional right of the first rank. It is a precondition for the implementation of other basic rights . . . Detention by an administrative authority is the harshest impediment upon personal freedom . . . As opposed to imprisonment, is not imposed by court and is not based on judicial proceedings as a punishment for the commission of an offence. Detention is imposed on a person at a time when he is presumed innocent and on the basis of suspicion alone.17

Criminal due process cases are even more prominent in New Zealand. The most influential and frequently cited NZBORA cases involve the criminal justice system, particularly regarding issues surrounding the right to legal counsel; questions of arrest and detention, search and seizure, and admissibility of evidence; and the right to a fair trial, including the right to be tried without undue delay (sections 21–25).18 In the Kirifi and Butcher cases, the Court of Appeal established the right to legal counsel.19 In the Noort case, which dealt with the right to legal counsel before the administration of breath/blood-alcohol tests, the NZCA further elevated the right to legal counsel to the landmark status of a prime constitutional right.20 In Goodwin, Te-Kira, and Pratt, the Court ruled that incriminating evidence is presumably inadmissible unless the trial judge is satisfied that it is “fair and right” to allow it.21 Other frequently cited NZBORA cases are Jefferies, R v. A, and Grayson, which were based on section 21 of the NZBORA and established strict limitations on the admissibility of evidence obtained by the police in breaches of personal privacy through unreasonable search and seizure.22 In the Martin case, the Court of Appeal held that the accused’s trial was to be thrown out for unreasonable delay attributable solely to prosecutorial inaction.23 As we have seen in earlier chapters, the NZCA recently went on to virtually repeal legislation that retrospectively increased the minimum nonparole imprisonment period for murder.24 The NZCA’s ruling in the often-cited Simpson v. Attorney General decision (also known as Baigent’s case) demonstrates how the right to privacy and criminal due process became constitutional rights after the enactment of the NZBORA.25 In this case, which establishes one of the most important prece-

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dents proceeding from the Bill of Rights, a search warrant mistakenly identified Mrs. Baigent’s address as that of a suspected drug dealer. The police constables were explicitly told by the Baigent family that they had the wrong address and were also served a notice to this effect by Mrs. Baigent’s daughter, a barrister. Despite these warnings, the officers proceeded with their search but found nothing incriminating. Mrs. Baigent then sued the Attorney-General and the police with several causes of action, including a breach of the NZBORA. The Court held that the officers had persisted unreasonably and in bad faith with their search, even when they knew or ought to have known that they had the wrong address. As redress, the Court ordered that Mrs. Baigent be financially compensated for her distress.26 Baigent’s case thus established a new public law remedy of monetary compensation from the state for breach of privacy in relation to the legal rights protected by the NZBORA. Criminal due process constitutional rights jurisprudence is also prominent in South Africa. In its historical judgment in the Zuma case—the first judgment delivered by the South African Constitutional Court (SACC) after its inauguration by President Nelson Mandela in February 1995—the Court ruled that the new constitutional provisions concerning criminal due process place a burden on the prosecution to prove that any confession on which it wishes to rely was freely and voluntarily made.27 The practical meaning of the Court’s decision in Zuma is that the state generally bears the onus of proof in a criminal case. In two subsequent landmark decisions, the Constitutional Court abolished capital punishment (Makwanyane) and outlawed corporal punishment, including juvenile whipping (Williams), as inhuman and degrading methods of punishment.28 Recently, the SACC extended the scope of its anti–capital punishment jurisprudence by holding that no person residing in South Africa (including illegal aliens) may be deported or extradited, with or without consent, to face capital charges in another country without a safeguard granted by that country’s legal authorities against the death sentence.29 Similarly, the Court reaffirmed the unconstitutionality of corporal punishment in the face of claims to religious freedom. It declared that outlawing such measures did not infringe upon the right to freedom of religion for parents who had, in line with their religious convictions, consented to what they termed the “corporal correction” of their children by teachers in private denominational schools.30 In a series of landmark rulings over the past seven years, the SACC has declared unconstitutional numerous criminal code and criminal procedure

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provisions that imposed a “reverse onus” on the accused to prove his or her innocence.31 These provisions were held to infringe upon the constitutional right of an accused person to be presumed innocent. The SACC also recognized the right of the accused to be tried within a reasonable time (Sanderson); established the right to legal representation (Vermaas); defended the right of the accused to access relevant police documents and to consult state witnesses (Shabalala);32 and held that an indeterminate sentence imposed on habitual criminals amounted to a cruel, unusual, and inhuman punishment.33 Recently, the Court went on to establish an unconditional right to appeal to a higher court any criminal conviction involving imprisonment.34 Finally, in the Motloutsi and Mistry cases, the Court established strict limitations on the admissibility of evidence obtained by the police in breach of personal privacy through unreasonable search and seizure,35 and declared unconstitutional a law that empowered Ministry of Health inspectors to enter and search premises and to seize and remove medicines from those premises without a warrant.36 The list of important Canadian criminal due process cases is too long to reproduce here.37 It is clear, however, that the significance of legal rights litigation extends far beyond the mere fact of their prevalence. Perhaps the best example of the prominence of cases involving Charter-based due process provisions on the SCC agenda can be seen in the Singh case (1985)—one of the first Charter of Rights rulings issued by the SCC.38 At issue was Mr. Singh’s claim that the procedures under the Immigration Act—the absence of a right to a hearing to determine whether a person was entitled to stay in Canada as a political refugee—violated section 7 of the Charter of Rights (which protects the “right to life, liberty, and security of the person”). In a landmark ruling, the SCC held that section 7 of the Charter required that government procedures depriving persons of their life, liberty, or security be procedurally fair. Some justices went on to declare that the due process protections afforded by section 7 extended to “every human being who is physically present in Canada.”39 Consider also the SCC ruling in Askov (1990), which dealt with the right to be tried within a reasonable time.40 Here, the Court found a twenty-threemonth delay between committal and trial to be unreasonable and went on to define a reasonable time lag between committal and trial as one not exceeding six to eight months. In a few later rulings the Court softened the Askov guidelines to reflect more closely the realities of Canada’s criminal justice system. Nonetheless, the expansive interpretation in Askov of the right

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to be tried within a reasonable time has had far-reaching consequences over the past decade on the granting of stay or withdrawal of unreasonably overdue criminal charges. An important and less frequently discussed example of the Charter’s impact on criminal due process is the Stinchcombe case (1991), which dealt with disclosure of evidence in criminal trials.41 An Alberta lawyer was charged with breach of trust. During the police investigation, his secretary said things that were beneficial to his case. However, she refused to speak to his lawyer. The prosecution did not pass her comments along to the defense, as the prosecution did not want the evidence to be heard in court. Knowing that her remarks might assist the accused, the defense complained. The dispute reached the SCC, which in a unanimous decision ruled that based on the right to fair trial as well as the right of the accused “to present full answer and defense” the prosecution must disclose all “relevant information” in its possession (the content of which is subject to review by the trial judge), even at the expense of significantly eroding the chances of obtaining a conviction. Over the past two decades, the SCC has persistently fortified the status of procedural rights, not only by protecting Charter-based due process rights of people such as Mr. Singh, Mr. Stinchcombe, and Mr. Askov, but also by acquitting defendants whose guilt was likely to be otherwise proven, but whose cases involved a procedural error either during their investigation or trial in the lower courts. Over the past decade alone, there were acquittals of this nature for cases ranging from tax evasion, racketeering, and financial misconduct to murder, manslaughter, sexual assault on children, rape, robbery, and the importation of heroin.42 In a similar spirit, the SCC has significantly expanded the purview of solicitor-client privilege (which according to Chief Justice Beverley McLachlin is nothing short of “a principle of fundamental justice and a civil right of supreme importance in Canadian law”)43 and has recently started to block the extradition of Canadian residents facing serious criminal charges in foreign jurisdictions when application at trial of reasonable procedural fairness standards is in doubt.44 The Feeney case illustrates the generous interpretation of procedural due process rights guaranteed by the Charter in the SCC.45 In this case, a police officer investigating a murder knocked on the door of Mr. Feeney’s place of residence (an equipment trailer) and then entered. Finding Mr. Feeney asleep, the officer woke him up and found bloodstains on his shirt. The police officer seized the shirt and took Mr. Feeney to a local police detachment

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for further questioning. The officer had no warrant, and Mr. Feeney had no lawyer. Based on the interrogation, a warrant to search the trailer was obtained and additional incriminating evidence was found there the following day. At the trial, the evidence against Mr. Feeney was admitted, and he was declared guilty of second-degree murder. But Mr. Feeney appealed, citing the Charter, claiming both unreasonable search and seizure and that he had not been adequately advised of his right to counsel. In a split decision, the Court ruled that “arrests made in private dwellings must be carried out with respect for individual rights and especially the right to be secure against unreasonable search and seizures.” Moreover, the Court ruled that when the officer touched Mr. Feeney’s leg and ordered him to get out of bed, Mr. Feeney’s Charter rights to retain and instruct counsel without delay were engaged. The Court then applied the standard remedy prescribed by the Charter for such violations and excluded the improperly attained evidence—thereby overturning Mr. Feeney’s conviction.46 The trend toward a generous interpretation of procedural rights in recent Canadian constitutional jurisprudence has led to other problematic outcomes. Consider, for example, the SCC’s decision in the Seaboyer case (1991). Section 276(1) of the Canadian Criminal Code prohibited the introduction of evidence in sexual assault trials that “concern[ed] the sexual activity of the complainant with any person other than the accused.” It had been enacted in response to strong lobbying by women’s organizations, which criticized common law rules permitting evidence of past sexual history on the grounds that such evidence had little probative value, led to biased and irrelevant moral judgment of the victim, and discouraged women from reporting sexual assault because of the ordeal of being cross-examined on their past sexual histories. Nonetheless, in Seaboyer the SCC struck down section 276(1) on the basis that it violated the accused’s right, protected by section 7 of the Charter, to present a full answer and defense to a charge.47 Using the same rationale, in the O’Connor case (1995) the Court struck down restrictions on the accused’s access to the complainant’s private and confidential counseling records in rape and sexual assault cases.48 The government reacted by enacting Bill C-46, which responds to the minority opinion in O’Connor to reintroduce legislative restrictions on judicial and defense access to a complainant’s private counseling records in sexual violence cases. In its recent decision in the Mills case (1999), the Court upheld the constitutionality of Bill C-46, giving precedence to the complainant’s constitutional right to privacy over the accused’s constitutional right to present a

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full answer and defense to a charge.49 In other words, the right of the accused to a fair trial (procedural equality) was limited only in the interests of protecting the right to privacy of other right bearers. Moreover, it was only under immense political pressure from the federal government and feminist activists that the Court overruled its highly controversial decision in the O’Connor case. Consider also the recent New Zealand Court of Appeal ruling in R v. M, where the accused was charged with severe sexual assault on a woman who visited New Zealand as a tourist. The alleged perpetrator was acquitted by the Court merely because the victim refused to return to New Zealand for the trial.50 In the victim’s country of origin, any female subjected to sexual assault is ostracized; the victim thus feared that her return to New Zealand would be questioned by her family and her experience subsequently discovered. The Court noted that the alleged perpetrator would probably have been convicted had the victim agreed to return to New Zealand. However, the Court held that due weight should be given to the fundamental importance of the NZBORA guarantees of fair trial and the right to cross-examination of witnesses. In a similar vein, the NZCA ruled in another recent case (R. v. T) that a blood sample that enabled positive DNA identification of an alleged perpetrator of rape of a severely handicapped woman had not been taken in compliance with the Criminal Investigations (Blood Samples) Act 1995. Since it infringed upon the accused’s constitutional right to fair trial as protected by the NZBORA, it was deemed inadmissible.51 Such potentially problematic decisions attributable to the prioritization of procedural rights in constitutional rights jurisprudence are further illustrated in the SCC’s decision in the CIP case (1992).52 Here a company was charged under occupational health and safety legislation with causing the death of an employee and chose to invoke in its defense section 11(b) of the Charter (the right to trial within a reasonable time). As a result, the trial was adjourned several times for administrative reasons, and the case reached the SCC almost two years after the charge was initially laid. The Court eventually decided that section 11(b) protected corporations as well as human beings and that the delay in trial constituted a violation of the corporation’s section 11(b) right. According to Justice William Stevenson, the purpose of that law was to ensure that the accused (whether human or corporate) had access to a fair trial. Human rights provisions are, therefore, not limited to human beings, but include corporate entities as well. In sum, these examples indicate that the protection of formal procedural

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rights has become the signal triumph of constitutional rights adjudication in all four countries. The effects of the new constitutional catalogues of rights in Canada, Israel, New Zealand, and South Africa on the laws governing due process have been profound. The constitutionalization of rights in these countries brought their respective national high courts into the heart of debates about criminal justice, personal freedom, and human dignity. In some matters, the four national high courts have followed, and sometimes gone beyond, the U.S. Supreme Court in their interpretations of constitutional standards governing search and seizure, inadmissibility of evidence, the right to counsel and to speedy trial, and the like. However, the generous interpretation given to due process constitutional provisions has not always resulted in better judicial protection for vulnerable groups and individuals. As some of the examples illustrate, courts may draw on due process constitutional provisions to disallow legislative initiatives designed to protect victims of severe criminal offenses in the name of granting a moral priority and an elevated constitutional status to due process rights. In other words, the generous interpretation of due process rights has often overshadowed other, equally important values.

Demarcating the Private Sphere All four national high courts have drawn on the new constitutional rights framework to issue a series of groundbreaking rulings that fortify and expand the boundaries of the private sphere in the context of freedom of expression and religion, freedom of movement, the right to privacy (including reproductive freedom), and formal equality. Whereas the practical results of some of these decisions may be contested on principled or consequentialist grounds, most of these rulings reflect a deep judicial commitment to a smallgovernment worldview. Consider the following illustrations of the prevalent “negative liberty” quality of several milestone judgments concerning freedom of expression and freedom from discrimination on the basis of sexual preference. From Texas v. Johnson to R.A.V. v. City of St. Paul, the concept of “content neutrality” has traditionally enjoyed a near-mythological status in American freedom of expression jurisprudence.53 While the SCC’s adoption of the “content neutrality” doctrine in freedom of expression cases has not been as firm as the U.S. Supreme Court’s stance, it would be fair to say that disseminators of hate propaganda, for example, have done quite well

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in Canada. Mr. Keegstra, for one, taught his Alberta high school students that “Jewish people [were] evil, sadistic, money-loving child killers who caused the world’s ills, sought to destroy Christianity, and fabricated the Holocaust.” He was charged under the Criminal Code for “promoting hatred against a section of the public distinguished by religion and ethnic origin.” The Court found that Keegstra’s speech was indeed “invidious and obnoxious,” but that this was not reason to deny it protection under the Charter’s freedom of expression provision.54 The Court wrote, “The content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter how offensive it may be.” It further held that this section protected all messages, “however unpopular, distasteful or contrary to the mainstream.” The Court thus found that the Criminal Code’s restrictions on hate speech, under which Keegstra had been charged, limited his freedom of expression. However, in a 4–3 decision, the Court ruled that the limit was justified under the criteria set by section 1 and by the Oakes test and that the provisions should therefore stand. But even section 1 could not block Ernst Zundel, one of the world’s leading producers of Holocaust denial literature, from disseminating his neoNazi hate propaganda. Mr. Zundel was charged under another section of the Canadian Criminal Code for publishing a booklet entitled “Did Six Million Really Die?” the central thesis of which was that the Nazis did not kill six million Jewish people and that dissemination of this supposed fallacy was part of a worldwide Jewish conspiracy. False news, such as hate literature, might be undesirable or even harmful in some cases, the Court held in 1992, but that was not sufficient reason to deny it prima facie protection as a form of expression.55 Unlike its decision in Keegstra, however, the Court ruled that the law restricting false news was too broad in its scope; it did not specify any particular type of statement or harm to the public interest, and therefore did not meet the standards set by the Oakes test. The SCC employed a similar balancing approach in another controversial freedom of expression case—R v. Sharpe (2001).56 Mr. Sharpe was charged under the Criminal Code with two counts of possession of child pornography and two counts of possession of child pornography for the purposes of distribution and sale. Sharpe argued that the provisions under which he was charged infringed upon his constitutionally entrenched right to freedom of expression. The Crown conceded that the relevant provisions infringed section 2(b) of the Canadian Charter of Rights and Freedoms but argued that the infringement was justifiable under section 1 of the Charter. The Court

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ruled that, taken as a whole, the said provisions reflected an appropriate balance between the potential harm to children and (pedophiles’) right to free expression and should therefore be upheld. However, the Court added that when child pornography is created, depicted, and held by the accused alone and intended exclusively for personal use, it might be allowed as it poses relatively little harm to children. To this extent, held the Court, the law banning the creation and possession of child pornography was disproportionate in its effects, and the infringement of freedom of expression could not be justified by section 1. In the same spirit, the SCC has expanded the ambit of the Charter’s freedom of expression provision to protect commercial speech. A clear illustration of this trend can be seen in the SCC’s ruling in RJR MacDonald.57 At issue was a governmental act that prohibited the advertising and promotion of tobacco products offered for sale in Canada and that required manufacturers to add to their packaging an unattributed warning about the dangers of smoking. Two tobacco companies successfully challenged the act in the Supreme Court, arguing that it was inconsistent with their right to freedom of expression under section 2(b) of the Charter. The Court accepted the tobacco companies’ claim that the Charter’s freedom of expression provisions protected commercial speech and defied, in principle, unreasonable regulatory consumer protection measures. In balancing the government’s duty to protect the public health against the tobacco companies’ right to freedom of expression, the Court held that the act was not “the least drastic means” for accomplishing the objective of reducing the consumption of tobacco products. The Court also noted that when it came to regulation of commercial speech, freedom of expression should be understood as entailing not just the right to express one’s own ideas, but also the right not to speak and not to be required to communicate someone else’s message (even when this “someone else” is a government whose concern is public health). Like its Canadian counterpart, the NZCA has drawn on privacy and freedom of expression provisions of the NZBORA to minimize government censorship on sexually explicit expression. In 1999, for example, New Zealand’s Customs submitted to the Board of Film and Literature Review two publications, the property of Mr. G. A. Moonen, featuring detailed descriptions of sexual activity between men and boys as well as numerous photographs of naked children, mostly boys. The board classified the said publications as “objectionable” on the ground that they “tended to promote or exploit sexual activity with young boys.”58 Accordingly, it became an offense to pos-

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sess the two publications. Mr. Moonen appealed the classification, contending that the board had failed to apply the NZBORA’s application and freedom of expression provisions. The NZCA accepted Moonen’s argument and held that the NZBORA’s freedom of expression provisions prevailed over the Classification Act, that the board had not given due consideration to the provisions of the Bill of Rights in interpreting the Classification Act, and that the board’s classifications should impinge as little as possible on freedom of expression. Several months later, the Board of Film and Literature Review again classified as “objectionable” two videos made by a fundamentalist Christian production company in the United States and imported to New Zealand. The videos portrayed homosexual relations as morally wrong and sinful, and called for abstinence, not “safe sex,” as the appropriate public health response to the world’s HIV/AIDS crisis. In its decision, the board stated that the videos deliberately disseminated misinformation concerning homosexuality and AIDS. The importer of the videos appealed the board’s ruling to the High Court in Wellington and later to the NZCA.59 Applying its earlier ruling in Moonen, the NZCA overturned the films’ classification as objectionable and held that the NZBORA must be brought to bear in censorship decisions. The Court stated, “The Bill of Rights was a limitation on governmental, not private conduct. The balancing required under the [Classification] Act had to take into account the right to freely impart and receive information under section 14 of the New Zealand Bill of Rights Act 1990.”60 Applying similar reasoning, the South African Constitutional Court held unconstitutional restrictions on the possession and dissemination of sexually explicit material. Until 1997, for example, section 2(1) of the Indecent or Obscene Pornographic Matter Act prohibited the possession of indecent or obscene pornographic material, which was defined to include photographic matter “depicting, displaying, exhibiting, manifesting, portraying, or representing sexual intercourse, licentiousness, lust, homosexuality, lesbianism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality, or anything of a like nature.” In Case (1996), the SACC found that prohibiting possession of such material was far too broad, thereby constituting an unreasonable invasion of personal privacy protected by section 13 of the Constitution.61 So widely had the act been framed that it covered “reproductions of not a few famous works of art, ancient and modern, that are publicly displayed and can readily be viewed in major galleries of the world.” The minority judgment went a step further by holding that sexually

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explicit expression was protected by the Constitution’s guarantee of freedom of expression and that freedom of expression includes the right to “receive, hold, and consume expression transmitted by others.” The SACC went on to further fortify the status of the right to freedom of expression in a recent high-profile case involving allegedly offensive antiJewish statements broadcasted by a community radio station owned by the Islamic Unity Convention (IUC). Jewish organizations filed a complaint that led to an inquiry by the Independent Broadcasting Authority. The dispute eventually reached the SACC.62 The Court declared unconstitutional a code of conduct provision that allowed the Independent Broadcasting Authority to prohibit the broadcasting of material “that is likely to prejudice relations between sections of the population.” The prohibition was too sweeping and intrusive, held the Court. It was not sufficiently detailed to guide broadcasters in what they may or may not broadcast and therefore unreasonably infringed upon the right to free expression. A less obvious illustration of the deep judicial commitment to a negativeliberty, small-government worldview is the spate of fairly progressive judgments in Canada, Israel, New Zealand, and South Africa dealing with the divisive issue of discrimination on the grounds of sexual preference. Amidst protest from vocal conservative and religious circles, all four national high courts have drawn on new constitutional rights legislation to elevate sexual preference to the status of “suspect category” in antidiscrimination claims. The result has been that sexual preference now enjoys a status similar to that of gender or ethnic origin in judicial scrutiny of apparently discriminating polities. In three landmark rulings in the 1990s, the SCC significantly expanded the recognition accorded to sexual preference as a legitimate basis for right to privacy and antidiscrimination/formal equality of opportunity claims. In Egan (1995), the Court held that a law defining “spouse” so as to exclude homosexual couples unfairly discriminated against homosexuals and therefore violated the Charter’s equality rights provisions (section 15).63 It then went on to hold in Vriend (1998) that Alberta’s Individual Rights Protection Act contravened the Charter because it failed to include sexual orientation as a prohibited ground of discrimination and ordered that the words “sexual orientation” be read into the act, effectively expanding its scope to cover lesbians and gay men.64 The de facto meaning of this decision is that the state has an obligation to enact human rights legislation that is broad enough to allow rights claims to be made concerning discrimination based on sexual orientation. In 1999, the SCC went on to hold that

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section 15(1) of the Charter entitled same-sex couples to sue for spousal support on the same basis as common-law opposite-sex couples (M v. H).65 The Court’s decision in M v. H triggered the adoption of comprehensive legislative amendments to over sixty federal statutes to extend benefits and obligations to same-sex couples in a wide variety of arenas.66 Similarly, the SCI ruled in El Al Airlines Ltd. v. Danilowitch (1994) that the spouse of a homosexual steward at El Al Airlines was entitled to the same benefits as the spouse of a heterosexual steward based on the right to equal treatment implicit in section 1 of Basic Law: Human Dignity and Liberty.67 A few years later, in the widely publicized Open Cards affair (1997), the Court ordered the Education Minister to allow the airing of a television program dealing with homosexual teenagers.68 On the program, part of Education TV’s Open Cards series, homosexual teens and the mother of a homosexual boy told their stories to a teenage audience, followed by questions and comments from the audience. The Minister of Education (Zvulun Hammer, then the leader of the National Religious Party) delayed the broadcast, as he considered its message immoral and inappropriate for an educational medium. Following a petition by the Association for Civil Rights in Israel (ACRI), in conjunction with the Lesbian Feminist Community and the Association for the Protection of Individual Rights of Homosexuals, Lesbians, and Bisexuals in Israel, the Court held that homosexuality per se should not be considered a “deviation” to be fought. The Court also pointed out that “education” is a broad concept that certainly did not exclude the broadcasting of the said program on Education TV. In another high-profile decision concerning sexual preference released in 2000, the SCI held that the sameness principle holds not only in the employment arena but also in other social settings, including the family. Here, the Court ordered the Population Administration to register a lesbian woman as the adoptive mother of the son of her same-sex common-law spouse. Although this decision was determined on the basis of a technical argument (the couple already held a valid adoption order issued by a California court), it implicitly expanded the sameness/formal equality argument to include recognition of same-sex couples’ family-related rights.69 The NZCA also made a significant step in this direction. In its recent landmark ruling in the Quilter case (1998), for example, the Court ruled that the exclusion of gay and lesbian couples from the status of marriage under the Marriage Act 1955 is discriminatory and contradicts the NZBORA’s equality rights provision.70 The SACC followed suit in its landmark 1998 decision in

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the National Coalition for Gay and Lesbian Equality case. Here, sodomy laws that criminalized private sexual conduct between consenting adults even where it causes no harm to anyone else and a 1957 act that prohibited sexual conduct between men in certain circumstances were declared to be inconsistent with the equality rights provisions of the SABOR and discriminatory against men in general and homosexual men in particular.71 The Court also noted that such sodomy laws intruded upon the innermost sphere of human life and therefore constituted a severe violation of the constitutional right to privacy. In a 1999 judgment, the Constitutional Court further expanded its interpretation of equality rights provisions pertaining to sexual orientation by ruling that foreign same-sex partners of permanent South African residents should be entitled to the same immigration and residence rights as marital partners of heterosexual South African residents.72 In three recent judgments, the SACC continued this thread of progressive rulings pertaining to sexual orientation. In the Satchwell cases (2002–2003), the Court held unconstitutional sections of the Judges Remuneration and Conditions Act that gave benefits to the spouses of heterosexual married judges but not to same-sex life partners of judges.73 Drawing on section 9(3) of the Constitution (prohibits unfair discrimination on the grounds of sexual orientation and marital status) the SACC held that the pertinent provisions should be read as according equal provision of benefits to same-sex life partners of public service employees who have undertaken reciprocal duties of support. In its unanimous ruling in Du Toit (2002), the Court went on to hold unconstitutional statutory provisions that confined joint adoption of children to married couples, thereby denying same-sex couples joint custody and guardianship rights.74 The restriction of joint adoption to married couples, held the Court, constituted impermissible discrimination on the grounds of sexual orientation and marital status.75 Finally, in J and B (2003), the Court confirmed that section 5 of the Children’s Status Act (provides that where a heterosexual married couple use the sperm or ovum of another person to conceive a child through artificial insemination, that child will be considered the legitimate child of the married couple) was inconsistent with the Constitution’s equality rights guarantees.76 The Court ordered that the section be read to provide the same status to children born from artificial insemination to same-sex permanent life partners as it provides to such children born to heterosexual married couples. The SCC’s decisions in the Vriend and M. v. H cases, those of the SACC in Du Toit and in the two National Coalition for Gay and Lesbian Equality cases, as

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well as the NZCA’s ruling in Quilter and SCI’s decision in Danilowitch represent historic landmarks in these countries’ gay and lesbian communities’ continuing fight for recognition and equal treatment under the law.77 However, a closer look at these progressive rulings suggests that these decisions fit a preexisting pattern of protecting negative liberties simply by redefining an individual’s sexual preference as an extension of his or her private sphere. The conduct in question should therefore enjoy the same protection from the public, the state, or an employer as any other personal trait. While these landmark judgments have been crucial in enhancing the everyday lives of millions of historically discriminated-against people, the establishment of the “sameness” principle in the realm of sexual orientation simply expands the scope of personal characteristics that ought to be recognized as belonging to one’s protected private sphere. The outcome is that sexual orientation, along with other personal characteristics, cannot serve as the basis for differential treatment by the state and its organs.

Subsistence Social and Economic Rights Subsistence social and economic rights (such as the right to basic health care, housing, education, social security and welfare, and an adequate standard of living) stem from the universal right to services meeting basic human needs. It is generally agreed that the meaningful provision of such rights requires the state to act positively to promote the well-being of its citizens rather than merely refraining from acting. Conservative and libertarian constitutional theorists argue that positive, second generation social and economic rights are not really human rights at all because they are not universal, paramount, or categorical; they are impracticable and too expensive; and, most important, they imply a fundamental redistribution of goods, which ignores the fact that people may already have property rights over resources that would have to be redistributed. Prominent liberal constitutionalists, such as Ronald Dworkin and Michael Zander, argue on consequentialist grounds that economic, social, and cultural rights have no place in constitutional catalogues of rights. According to these scholars, agreement on an appropriate and conclusive list of second and third generation rights would be impossible, because people would inevitably define positive entitlements that are in reality of different orders (for example, subsistence rights versus expensive taste) as equally essential to living a healthy and decent life.

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Proponents of positive and collective rights provide at least two convincing counterarguments: the egalitarian principle argument and the basic needs argument. According to the egalitarian principle argument, no person should be worse off than others for arbitrary reasons that are beyond his or her control (such as race, gender, genetic features, and in some cases residence). In order to neutralize the impact of brute luck, egalitarians argue, the polity as a whole (through its local, national, or global governing bodies) bears a moral and practical responsibility for providing the arbitrarily deprived groups and individuals with the material means for pursuing a decent life. At the very least, arbitrarily disenfranchised groups and individuals hold a positive right against the state requiring that steps be taken so that living a decent life becomes a realistic possibility for all members of the polity. The basic needs argument suggests in a nutshell that no one can fully enjoy or exercise any classic negative right (for example, freedom of expression or the right to property) in any meaningful way if he or she lacks the essentials for a healthy and decent life in the first place. According to this argument, basic needs, such as access to food and safe water, basic housing, education, and health care, are both morally and practically more fundamental than any given classic negative right.78 Likewise, the “capabilities approach” (an approach to quality-of-life assessment pioneered within economics by Nobel laureate Amartya Sen and later adopted by the highly influential “Human Development Report” of the United Nations Human Development Program, or UNDP)79 also stresses one’s ability to live a decent life, to be adequately nourished, and to have access to health care and shelter as essential preconditions to the enjoinment of any other rights and freedoms.80 Indeed, such subsistence social and economic rights are recognized in the Universal Declaration of Human Rights (1948) and protected by a wide range of international, regional, and specialized human rights conventions. Such rights feature in a large number of national constitutions. The recognition of poverty and socioeconomic living conditions as a “suspect category” in equality rights cases and the struggle to include positive entitlements to subsistence social welfare within the scope of constitutional rights provisions is far from sinking into constitutional oblivion in countries such as India, Belgium, and Portugal.81 Moreover, subsistence social and economic rights enjoy wide acceptance, as practically applied by the International Covenant on Economic and Social Rights, the Conventions and Recommendations of the International Labour Organization, the European Social Charter of the Council of Europe, and the European Community’s Charter of Fundamental Social Rights, to name only a few examples.82

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Other critics argue that entrenching economic and social rights guarantees through a constitutional catalogue of rights is inappropriate because their enforcement through active judicial review would infringe on the separation of powers doctrine, a central tenet of democracy.83 In other words, generous judicial interpretation of positive rights provisions entails deep judicial involvement in determining the allocation of society’s resources, a task that ought to be reserved to other branches of government. This formalistic argument, however, fails to address the counterargument that effective distinction between negative rights and positive rights is difficult to sustain, primarily because many rights traditionally labeled as negative actually require some sort of public funding or state intervention.84 For example, the enforcement and preservation of property rights—a classic negative right—requires a detailed registration and protection apparatus that has traditionally been sponsored by the state. And a full realization of fundamental due process standards such as the right to counsel or the right to be tried within reasonable time also requires significant public funding. According to this view, many other seemingly negative rights would not exist if the government were unable to collect the taxes necessary to codify, protect, and enforce them. Therefore, the expenditure of collective resources is required to protect both negative and positive rights. True, the scope of resource redistribution necessary for funding property registration or prison surveillance apparatuses is narrower than the largescale resource redistribution that may be required if we are to treat positive subsistence entitlements seriously. However, if substantial public funding is indeed a necessary precondition for protecting classic negative liberties as well as basic subsistence rights, it is unclear why the constitutional entrenchment of the former type of rights is practically and morally superior to the constitutional entrenchment of the latter type. Moreover, it is not clear why we should assign the protection of negative rights to the justiciable arena of the courts while leaving the protection and enforcement of positive entitlements—such as the right to basic housing, education, health care, or access to safe drinking water—to the exclusive discretion of legislatures and executives. However convincing the theoretical argument for rethinking the negative/positive rights division might be, courts and judges in the four new constitutionalism polities examined in this study do not seem to accept its fundamental logic. From provisions protecting the unqualified right to life and to human dignity, to specific provisions protecting equality rights, several sections of the constitutional catalogues of rights in Canada, New Zea-

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land, and Israel can be interpreted by the national high courts of these countries as protecting fundamental subsistence social and economic rights. Such positive rights, however, have been effectively deprived of their binding force to the extent that they are not regarded by the high courts as essential components of full citizenship. Unlike its counterparts, the South African Constitutional Court seems to have contemplated its interpretive stand with regard to the explicit recognition of certain social rights in the newly enacted South African Bill of Rights. While attempts to entrench social welfare rights have never gained political momentum in its neighbor to the south, legislators and social rights activists in Canada have attempted several times over the past two decades to initiate the enactment of a complementary social charter explicitly requiring the state to commit to basic health, education, and housing provisions. The most important of these attempts was a “social union” provision included in the Charlottetown Accord, which was defeated by a national referendum in 1992.85 At the same time, the SCC has rejected positive claims that would have required the state to provide benefits to rights-holders, either directly through a social program (for example, health care or unemployment benefits) or indirectly, through social legislation that imposes obligations on private actors (for example, minimum wage, pay equity, rent control). According to Chief Justice Antonio Lamer in Prosper (1994): “It would be a very big step for this court to interpret the Charter in a manner which imposes a positive constitutional obligation on governments.”86 Social rights claimants have repeatedly failed in their attempts to challenge the conception of the state as leviathan embedded in the Court’s jurisprudence. Most of these attempts have been based on the Charter’s equality rights (section 15). But in its interpretation of this hotly contested section, the Court ruled that it “does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law.”87 Section 15 is thus confined to state action—“the application of law”—and does not govern state inaction—for example, its unwillingness to act to promote “equality between individuals or groups.” Another example of the exclusion of social rights from the Charter is Finlay, in which the Supreme Court held that the Canadian provinces “are not obliged by the Charter or by any other constitutional document to provide a minimum standard of welfare benefits equivalent to the basic requirements of a person in need.”88

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In its recent ruling in the Gosselin case, the SCC went on to reject the arguments of an unemployed Montrealer that section 7’s “right to security of the person” prohibits cuts to welfare that deny recipients basic necessities and that the Charter’s equality right provision entails substantive obligations to provide adequately for disadvantaged groups relying on social assistance.89 By a 5–4 decision the Court held that the “right to security of the person” does not guarantee an adequate level of social assistance by the state. In her majority opinion, Chief Justice Beverley McLachlin stated: The dominant strand of jurisprudence of s. 7 sees its purpose as protecting life, liberty, and security of the person from deprivations that occur as a result of an individual’s interaction with the justice system and its administration . . . Thus far, the jurisprudence does not suggest that s. 7 places positive obligations on the state. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of their right to life, liberty, and security of the person . . . Although s. 45 [of the Quebec Charter of Human Rights and Freedoms] requires the government to provide social assistance measures, it places the adequacy of the particular measures adopted beyond the reach of judicial review.

A somewhat different illustration of how positive duties are excluded from the purview of the Canadian Charter’s equality rights provision is the Adler affair.90 According to section 93(1) of the Constitution Act of 1867, the provinces’ exclusive power to legislate with regard to education is subject to a historical pact between Ontario and Quebec (reached prior to Canada’s unification in 1867) whereby minority denominational schools at the time of union were entitled to get funding from the provincial governments. The practical implication of this provision has been that only Roman Catholic schools in Ontario and Protestant schools in Quebec are entitled to get public funding, as they were the only recognized minority denominational schools in 1867. In 1996, the parents of children attending private Jewish schools and independent Christian schools challenged Ontario’s education funding scheme, which awards full funding only to private Catholic schools (in addition to the entire secular public school system). The parents argued that such a selective funding scheme violates their religious and equality rights protected by the Charter and asked the Court to order the government of Ontario to provide equal funding to non-Catholic denominational schools. In rejecting the petitioners’ request, the SCC held that failure to fund denominational schools not recognized by section 93 did not breach

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the Charter’s freedom of religion or equality rights, as the original intent of section 93(1) was to preserve the unique culture of Roman Catholics in Ontario and Protestants in Quebec at the time of union. This provision, the Court stated, is the product of a “historical compromise which was a crucial step along the road leading to Confederation. Without this ‘solemn pact,’ there would have been no Confederation . . . Given that the appellants cannot bring themselves within the terms of s. 93’s guarantees, they have no claim to public funding for their schools.”91 Two interesting exceptions to the SCC’s narrow interpretation of positive rights (at least at first glance) are Schachter (1992) and Eldridge (1997). In Schachter, the Court held that the right in section 15(1) to equal benefit of the law is a positive right, requiring “special considerations in the remedial context.”92 In Eldridge, the Court interpreted section 15(1) as requiring the state to ensure that disadvantaged members of society have the resources to take full advantage of benefits provided by the government to the general population.93 A closer look, however, reveals that in the specific circumstances of these two cases the Court was concerned only with imposing limits on how the state can act if it decides to act. The decisions do not require the state to act in the first place. In other words, the negative character of the Charter’s equality rights remains largely unaltered in the wake of Schachter and Eldridge. Unlike the Canadian Charter, the new South African constitutional catalogue of rights explicitly protects positive social and economic rights, such as the right to housing (section 26); the right to health care, food, water, and social security (section 27); and the right to education (section 29). All of these positive rights provisions, however, do not imply a right to housing, health care, or education per se, but ensure only that reasonable measures are taken by the state to make further housing, health care, and education available and accessible. This construction of “weak” positive rights requires the government to take reasonable measures, within its available resources, to achieve the progressive realization of each of these rights by establishing practicable programs of land reform, housing, education, and health care. An understanding of the SACC’s interpretation of the constitutional provisions protecting positive social rights requires a brief survey of the socioeconomic inequality in South Africa in the years preceding constitutionalization. During the apartheid era, an intricate panoply of statutory provisions divided the land of South Africa into zones of racial exclusivity, whereby only 12.5 percent of the land was set aside for blacks (who com-

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prise about 70 percent of the South African population) while the remaining 87.5 percent of the land was set aside for the exclusive use of people classified as “other than Black.” The right of blacks to enter “white” urban areas so as to take up employment was severely constrained. Pockets of urban land were further demarcated for the exclusive ownership and occupation of designated racial groups by the infamous Group Areas Act (which was enacted in 1966 and repealed in 1991). This land policy was implemented by means of the forced and brutal relocation of about 3.5 million people from the early 1960s to the mid-1980s.94 Furthermore, economic resources were deliberately malapportioned through a program of institutionalized inequality that purchased the prosperity of whites at the expense of the vast majority of black South Africans, who lived in abject misery. In 2001, ten years after the formal abolition of apartheid, the average disposable income of black South Africans was 13 percent of whites’. In the same year, the average disposable income of “coloreds” was 28 percent of whites’, and Asian disposable income was 42 percent of whites’. This outrageously unequal distribution of wealth obstructs any meaningful attempt to establish social justice in South Africa, and will continue to do so unless some sort of substantive redistribution scheme, imposing financial restitution for past wrongs and increased public spending in order to ensure access to basic education, health care, housing, and employment to all black South Africans, is adopted. Recognizing the need to protect positive social rights, the Constitutional Court in the Soobramoney case stated: We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order . . . This commitment is also reflected in various provisions of the Bill of Rights and in particular in sections 26 and 27 which deal with housing, health care, food, water, and social security.95

However, when the opportunity finally arose to go beyond abstract rhetoric and expand the boundaries of state duty to include the provisions of basic health care to all (an expansion that would have required the adoption of resource redistribution), the Court was much less generous in its interpreta-

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tion of the new positive rights provisions. In Soobramoney, the Court dismissed the appeal of a chronically ill patient who was refused admission to the dialysis program of a state hospital. Mr. Soobramoney’s claim was based on the unqualified right to life (section 11), and on the constitutional right to health care (section 27), which, among other things, prohibits the refusal of emergency medical treatment. The Court held that the right not to be refused medical treatment means that a person who suffers a sudden catastrophe and requires immediate medical attention cannot be denied ambulance or other emergency services. The Court also found that the KwaZulu-Natal government did not have sufficient funds to cover the costs of long-term dialysis treatment and went on to uphold the hospital policy of admitting only those patients who can be cured within a short period of time. In short, the Court upheld the policy of subjecting positive rights to availability of resources. This narrow interpretation of positive rights provisions by the SACC is further illustrated by the Gauteng School Education Bill case.96 In 1995, the Gauteng provincial government drafted a school education bill. Among its provisions were guarantees of negative liberties, such as freedom of religion and conscience, including the right not to attend religious education classes or engage in religious practices; but there were no guarantees of positive rights. Members of the provincial parliament petitioned the Constitutional Court to review these provisions, arguing that section 32(c) of the interim Constitution, which protected minority education rights, imposed positive obligations on the state to establish, where practicable, minority schools, not merely to refrain from infringing on minority education rights. Dismissing this claim, the Constitutional Court held that section 32(c) of the interim Constitution did not place a positive duty on the state to establish minority education institutions, but rather protected negative rights such as those provided for by the Gauteng School Education Bill. It held also that the section protected the right of an individual to establish and maintain minority educational institutions. According to Chief Justice Ismail Mahomed, “s. 32(c) provides a defensive right to a person who seeks to establish minority educational institutions, and it protects that right from invasion by the State, without conferring on the State an obligation to establish such educational institutions.”97 What appears to be a turning point in the SACC’s interpretation of positive rights provisions, however, is the Court’s recent ruling in the Grootboom case—a landmark decision that dealt with the enforceability of social and

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economic rights and redefined the scope of the state’s obligations under section 26 of South Africa’s Bill of Rights, which grants everyone the right to adequate housing.98 A group of 900 homeless people living in dismal circumstances in Wallacedene, an informal and unrecognized settlement in the Western Cape province, were granted the right not to be forcibly evacuated. In a unanimous decision, written by Justice Zak Yacoob, the Court ordered government authorities to refrain from bulldozing the settlement despite the fact that it was formally unrecognized as a settlement. The Court went on to note that the new South African Constitution obliges the state to act positively to ameliorate the plight of the hundreds of thousands of South Africans living in deplorable conditions throughout the country. The state must also foster conditions that enable citizens to gain access to land on an equitable basis. Having said that, the immediate practical outcome of the case was essentially a call on the government to refrain from acting (bulldozing the unrecognized settlement), not a call to act. What is more, the Court went on to recognize that ameliorating the basic life conditions of millions of poor South Africans is an extremely difficult task given the prevailing conditions, and it reiterated that the Constitution does not oblige the state to go beyond its available resources or to realize these rights immediately.99 Another new direction in the SACC’a positive rights jurisprudence was set recently by the Court’s groundbreaking ruling in the Nevirapine saga (Minister of Health v. Treatment Action Campaign). In a widely publicized judgment released in July 2002, the Court drew on section 27 of the Bill of Rights (the right to health care, subject to available resources) to order the South African government to provide the drug Nevirapine to all pregnant women who carry HIV/AIDS in order to reduce the risk of transmitting the deadly disease to their unborn children.100 The government had refused to sponsor an across-the-board distribution of the drug, citing inconclusive scientific data concerning its effectiveness as well as budgetary constraints. Accordingly, it restricted the distribution of Nevirapine to eighteen pilot sites across the country. The government’s stringent HIV/AIDS policy was an infringement of the constitutional right to health care, held the Court. “The decision to adhere to the eighteen sites during the whole of the research period . . . is unreasonable and infringes the rights of all those who would otherwise have had access to this particular form of health care,” Justice Arthur Chaskalson ruled. “The drug is available to the government at no charge; its administration is simple, efficacious, and potentially lifesaving.”101 Although

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the Court drew primarily on equal protection reasoning, it remains to be seen whether this potentially revolutionary judgment is interpreted in future court rulings as an ordinary equal protection ruling (the drug was available in several sites across the country but not in others) or as having wider implications on the provision of health care and other subsistence social and economic rights as legally enforceable rights. Whereas the SACC has been openly contemplating its position with regard to subsistence rights, such rights have had minimal success in New Zealand (see Table 4.2 above). During the pre-enactment public debate over the content and status of the Bill of Rights, the Palmer government resisted the attachment of basic social and economic rights to the bill it had just initiated. The Justice and Law Reform Committee suggested the inclusion of key economic and social rights, but government officials labeled these rights “nonjusticiable by nature” because they “fell to political rather than judicial process, and to include them would have made the legislation unmanageable.” But the government did not care to elaborate on the grounds for this exclusion of social rights from the NZBORA. They preferred to leave the question of positive versus negative rights unresolved by arbitrarily assigning positive rights (for example, basic subsistence rights) to the political realm and negative rights (such as the right to private property) to the justiciable arena of the courts. A recent example of the exclusion of social rights from the NZBORA is the Lawson case.102 The plaintiff asserted that her rights were breached by a policy whereby responsibility for renting of houses formerly owned by the state was transferred to Housing New Zealand (a semiprivate entity), which progressively increased rents to approximate market value, whereas formerly rent had been subsidized. She alleged that in determining its social objectives for housing, the government failed to have proper regard for the International Convention on Economic, Social, and Cultural Rights as well as other international covenants protecting social rights; and that the government’s decision was in breach of her right to life enshrined in section 8 of the NZBORA. But the NZCA rejected all of the plaintiff’s claims, stating that [t]he housing of lower income New Zealanders, the better use of housing stock and the means by which assistance could be better targeted across the wide range of tenants were all matters involving political judgments on the allocation of economic resources, the management of a valuable public asset and the provision of social services in which complex economic and so-

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cial considerations and trade-offs were involved . . . When such matters are considered . . . the Courts should be less inclined to intervene . . . The plaintiff’s claim requires the kind of value and policy judgments and a degree of social obligation which should properly be addressed by legislatures and responsible organs of government in a democratic society, not by courts.103

In a similar spirit, the Court of Appeal recently rejected a request for the state to intervene and protect the freedom of religion of the Centrepoint religious community in New Zealand. The request of the plaintiffs in the Mendelssohn affair was based on the alleged statutory duty of the state under the NZBORA to protect New Zealand residents’ freedom of religion. As such, it posed a direct challenge for the Court’s continuous exclusion of positive constitutional rights from the purview of the NZBORA. In a rather blunt statement, the Court held that Sections 13, 14, 15, 17, and 20 of the New Zealand Bill of Rights Act 1990 did not impose positive duties on the state in any relevant sense. Those rights were affirmed against acts of the branches of the state; the duty of the government and others bound by the Bill of Rights was not to interfere unreasonably with the individual’s right to religious freedom. There was no tenable basis for the causes of action based on failure to take positive steps to protect the plaintiff’s freedom of religion.104

Recently, the NZCA dismissed another major attempt to expand the purview of NZBORA provisions to include basic social rights. In 1999, the New Zealand government announced its intent to disestablish numerous institutions and facilities for children with special educational needs. The parents of fifteen such children challenged the new program on constitutional grounds, claiming that New Zealand’s Education Acts of 1964 and 1989, as well as section 19 of the NZBORA (which guarantees freedom from unlawful discrimination) impose a duty on the government to provide free education for children of school age as well as a corresponding duty not to discriminate against children in need of special education. In a lengthy judgment released in February 2003, the Court drew on “relevant discrimination” grounds to reject the parents’ principled arguments and held that New Zealand’s pertinent public education legislation does not establish the freestanding right of children with special educational needs to the same free education as other children. The only breach committed by the government was that of a requirement of three months’ notice to disestablish certain special

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education services. The Court drew on formalistic grounds (lack of oral argument to supplement the extensive written submissions) to avoid a headon address of the NZBORA-based challenge.105 The same antistatist impulse has dominated the Israeli legal arena since the enactment of the new Basic Laws. Although positive rights have been widely recognized by international covenants and treaties, all attempts by various political activists in Israel to challenge the dominant antistatist conception of human rights in court or parliament have failed. A rare coalition of religious and neoliberal Knesset members effectively defeated a proposal to enact a third new Basic Law, which would have granted constitutional status to various social rights and guaranteed humane living conditions to every citizen or resident. A narrow legal interpretation of the meaning of human dignity as defined by the already existing Basic Law has also contributed to the institutional disregard for positive rights in Israel.106 In 1994, Chief Justice Aharon Barak of the SCI specified guidelines for the interpretation of the new Basic Law: Human Dignity and Liberty.107 According to Barak, fundamental human dignity in this new Basic Law should be understood to include formal equality of opportunity, due process of law, freedom to pursue one’s own life plan, the right to own property, freedom from state intrusion into one’s physical and mental privacy, and the recognition that each individual is a moral being. Under this definition, however, the protection of basic human dignity translates primarily into a legal right to noninterference—a negative right. Barak explicitly noted, “Social human rights such as the right to education, to health care, and to social welfare are, of course, very important rights, but they are not, so it seems, part of ‘human dignity’.”108 In practice, the Court has consistently refused to grant constitutional status to positive entitlements. In 1996, Israel’s Supreme Court explicitly declared that the rights to basic education and child care (pertaining to developmentally challenged children) have no constitutional grounding in Basic Law: Human Dignity and Liberty or, for that matter, in any other constitutional source in Israel. The Court held that the state is not constitutionally obliged to provide its citizens with any sort of basic education or even any equality of opportunity in education.109 In the Court’s words: A constitutional right requires a constitutional source to that right. Basic Law: Human Dignity and Liberty does not anchor the right to education. The claim that human dignity includes the right to education presumes a wide model of the right to dignity which implies great difficulties. This wide

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model entitles the individual to a right vis-à-vis the government for better life. Therefore, the right to education cannot be deduced from the general right to human dignity.110

In an ironic variation on this position, the Court ruled in 1997 that based on Basic Law: Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under “humane” conditions.111 No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd, however, that alligators enjoy the constitutional right to basic “humane” living conditions while human beings are still not constitutionally entitled to this basic right. Moreover, in a curious coincidence, another ruling from the SCI declared that the right to grow a beard is protected by Basic Law: Human Dignity and Liberty regardless of one’s religious beliefs, since a beard is considered an integral part of one’s identity and being.112 In other words, while the right to basic education for developmentally challenged children or equal funding to minority religious services fall outside the purview of Basic Law: Human Dignity and Liberty, the right to keep one’s beard is protected by this law. In spite of a clear pattern of systematic discrimination and inequality in allocation of government resources between Jews and ethnic minorities in Israel (primarily Arab-Israelis), the Court went on to reject claims from ArabIsraeli municipalities against discrimination in governmental funding of educational programs and other social services.113 For example, though nonJewish religious communities make up approximately 20 percent of the Israeli citizenry, roughly only 2 percent of the total budget of the Ministry of Religious Affairs is spent on them. In a 1998 judgment the Court rejected a petition from the non-Jewish religious communities in Israel to declare pertinent provisions of the Budget Law (1998) unconstitutional on the grounds that the petition was too broad and required the Court to intrude upon ministerial prerogatives.114 In another recent ruling, the SCI denied a petition for immediate equalization in the allocation of government funds to educational enrichment programs targeted at academically weak students from low socioeconomic backgrounds, despite the fact that the Ministry of Education admitted to having subsidized such programs in the amount of $900 per Jewish pupil while spending a meager $20 per Arab pupil.115 The Court accepted instead a vague commitment by the ministry for accomplishing a proportional allocation of the funds (20 percent of the overall funds to Arab pupils) within a five-year time frame, thereby deeming superfluous a principled discussion of the question of the state’s duty to ensure parity in educa-

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tional allocations for the Arab sector. Not surprisingly, then, a decade after the constitutionalization of rights in Israel the gap in access to education between Israel’s Jewish population and Arab minority has remained as wide and as visible as it has ever been.116 Nowhere is the failure of the constitutional revolution to promote substantive equality between Arabs and Jews in Israel more obvious than in the case of the unrecognized Arab villages. Despite the fact that many of these villages existed prior to the establishment of the State of Israel, they were declared illegal by state authorities when the lands on which they were built were rezoned as nonresidential and ownership was claimed by the state. Most estimates place the number of inhabitants of these areas, primarily Arab Bedouin, at approximately 70,000. Their villages are afforded no official status: they are excluded from government maps, they neither have local councils nor belong to other local governing bodies, and they receive few or no government services (such as access to electricity, water, telephone lines, and educational and health services). Consequently, the basic living conditions in these villages are dismal. In addition, the government uses a combination of house demolitions, land confiscation, denial of services, and restrictions on infrastructure development to drive residents from their homes. Official government practice has been to relocate residents to designated areas in order to use the land for creation and expansion of Jewish cities and towns. Until recently, all of the many attempts by local and international human rights organizations to use Basic Laws litigation to change the status of the unrecognized villages have failed. In 2001—a decade after the constitutionalization of the right to human dignity and fifty-three years after the establishment of the State of Israel as a Jewish and democratic state—the Supreme Court hesitantly afforded quasi recognition to unrecognized villages by ordering the planning authorities to submit a plan to include a previously unrecognized neighborhood within the boundaries of a recognized Bedouin village in Western Galilee.117 In another noteworthy development the Court ordered the Ministry of Health to build six mother and child health clinics in a heavily populated Bedouin township where no such clinic had previously existed.118 However, like the SCC’s rulings in Schachter and Eldridge, the decision was not based on a positive-rights rationale, nor did it impose any duty on the state to act in the first place; if the Ministry of Health chooses to provide a given service it must take the necessary steps to make the same service available to all pertinent communities.

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While judges in Israel have seen fit to exclude social rights and other positive entitlements from their definitions of human dignity, the Court held that the Basic Law: Human Dignity and Liberty does strengthen some individual property rights. In a libertarian spirit, judges and members of the Israeli legal academy have recently suggested that taxation in general (and income tax in particular) contradicts a person’s or a corporation’s basic freedom to own property. In other words, redistribution of wealth through taxation violates one’s basic freedom and dignity. The new Basic Law thus empowers courts to examine and abolish (if necessary) any existing and new tax laws enacted by the Knesset.119 As we have seen in Chapter 1, in its historic ruling in United Mizrahi Bank, the Court drew on the constitutional entrenchment of the right to property, as specified in article 3 of the Basic Law: Human Dignity and Liberty, to virtually invalidate—for the first time in Israel’s constitutional history—a Knesset law that was aimed at erasing the heavy financial debts owed to major banks by collective agricultural settlements in Israel.120 In its decision, the Court noted forcefully: The right to property is the cornerstone of the liberal system. It occupies a central place in liberal ideology, as security for the existence of other rights . . . Indeed the right to property promises the individual financial freedom. It enables interpersonal cooperation. It enables a person to activate the autonomy of his personal will. Thence arises the connection between the protection of property and the protection of human dignity.121

This combination of rulings effectively denies developmentally challenged children any legal recourse against discriminatory education policy while it simultaneously allows a corporation to sue the government for return of any taxes it has levied on profits. These somewhat odd priorities further illustrate potentially distorted legal implications following from the hegemonic conception of constitutional rights as merely negative rights aimed at protecting the private sphere from the long arm of the encroaching state and its regulatory laws.

Workers’ Rights Constitutional provisions protecting freedom of association, occupation, and expression can be interpreted in the context of labor relations either as providing collective positive entitlements to wider state-underwritten legal

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protection for workers (for example, workers’ right to associate, to join labor unions, to bargain collectively, or to strike), or as protecting the private sphere from state intervention by granting priority to economic association and free bargaining over state regulation. An examination of the recent constitutional jurisprudence dealing with these issues in the four countries that stand at the core of this study may help us assess the direction that judicial interpretations of constitutional rights have taken. To this end, I have tracked movement on these issues along a continuum, from a relatively wide scope of protection for labor-related regulatory policies and positive entitlements on one end to a neoliberal commitment to minimal state intervention in an autonomous private sphere on the other.122 The right to freedom of association is protected by section 2(d) of the Canadian Charter. Therefore, with the enactment of the Charter in 1982, many saw constitutional litigation as an efficient strategy to halt the legislative rollback of labor rights. Until very recently, however, unions have petitioned the SCC on numerous occasions for the constitutional protection of picketing, strikes, and collective bargaining and have lost every time. In each of these decisions, the SCC chose to adopt a very narrow interpretation of freedom of association, defining it as merely an individual right completely devoid of any meaning that might allow a group of workers to band together against their employer. The most important cases to deal with freedom of association in the Canadian context are known as the 1987 labor trilogy.123 In these three cases, unions claimed that the Charter’s guarantee of freedom of association protected them from legislative restrictions on strikes. The result of the trilogy was a definitive statement by the Court that freedom of association did not provide any protection for the right to strike as a legitimate means of either protecting the interests of workers or pursuing the fundamental purposes of their association in unions. In the Alberta Reference case, for example, Justice Gerald Le Dain wrote in his presentation of the majority decision: The rights for which constitutional protection is sought—the modern rights to bargain collectively and to strike—are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests . . . Freedom of association is a freedom belonging to the individual and not to the group formed through its exercise. The group can exercise only the constitutional rights of its individual members on behalf of those members. If the right asserted is not found in the Charter for the individual, it cannot be implied for the group merely by the fact of association.124

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This interpretation was confirmed in subsequent cases and even extended to exclude collective bargaining from constitutional protection under section 2(d) of the Charter.125 While this position is logically valid, it is nevertheless difficult to see why the right to strike and the right to bargain collectively lie beyond the Charter’s freedom of association provisions and “are the creation of legislation, involving a balance of competing interests” any more than, say, the right to private property, movement, or freedom of occupation. In all these decisions, the SCC adopted a significantly narrower conception of workers’ rights than the European Court of Human Rights in Strasbourg and consciously ignored workers’ collective need to associate in order to overcome their vulnerability as individuals when negotiating with their employers.126 Whereas the right to strike was not granted constitutional protection under the Canadian Charter, the right not to associate, raised by antiunionists, has been elevated by the Court to the status of a constitutional right. According to the SCC’s ruling in Lavigne (1991), section 2(d) of the Charter implies an employee’s individual right not to become member of a representative labor union, despite the potentially detrimental effects of such reading of section 2(d) on fundamental principles of collective bargaining.127 True, the Court recently upheld in a 5–4 majority the constitutionality of a provision of Quebec’s labor relations legislation that required construction workers to register as members of a representative trade union as a necessary precondition for obtaining professional competency certificates.128 However, a closer look at this decision reveals that all four dissenting opinions as well as one of the majority opinions (Justice Frank Iacobucci) reiterated that in principle such mandatory membership requirements infringe on the Charter’s individual right not to associate. Unlike the four dissenting opinions, however, Justice Iacobucci held that the membership requirement met the criteria set by section 1 of the Charter and should therefore be upheld. In other words, five Supreme Court judges held that the requirement infringed on the Charter right. Justice Iacobucci, in allowing the requirement under section 1, tipped the balance, with the result that the interpretation of the Charter’s freedom of association guarantee as protecting the right not to associate was ultimately upheld. A true exception to the SCC’s traditionally narrow interpretation of the right to unionize is the Court’s recent ruling in Dunmore (2001).129 Here, the Court held unconstitutional a rather blunt Ontario labor relations provision adopted in 1995 that excluded agricultural workers in that province from the purview of protective trade union and collective bargaining legislation.

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The Court reiterated that “the purpose of s. 2(d) of the Charter is to allow the achievement of individual potential through interpersonal relationship and collective action” and that “ordinarily, the Charter does not oblige the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms.” However, the Court also stated that in order to make the freedom to organize meaningful in this very particular context, s. 2(d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups. The distinction between positive and negative state obligations ought to be nuanced in the context of labor relations, in the sense that excluding agricultural workers from a protective regime contributes substantially to the violation of protected freedoms.130

It remains to be seen whether this ruling indeed marks a genuine change in the SCC’s attitude toward unionism and collective bargaining or whether the provision’s sheer bluntness led the Court to support workers’ right to unionize in this particular case. Note too that while the collectivist aspects of workers’ rights have, by and large, been excluded by the SCC from the purview of Charter protection, the SCC has been inclined to be more generous in its interpretive attitude toward labor when dealing with workers’ freedom of expression rights (for example, in the context of so-called secondary picketing).131 True, in one of its first Charter rulings (Dolphin Delivery, 1986) the SCC rejected a union’s claim that the common law rule prohibiting many forms of picketing interfered with the Charter guarantees of freedom of speech and association.132 The union’s claim was rejected, inter alia, on the grounds that the Charter was “set up to regulate the relationship between the individual and the government. It was intended to restrain government action and to protect the individual.” The employer in this case was private, so there was no “element of governmental intervention.”133 In two more recent rulings, however, the Court revisited the issue and revised its controversial ruling in Dolphin Delivery so as to extend freedom of expression constitutional protection to peaceful secondary picketing by workers.134 In the first of these decisions (U.F.C.W. v. KMart Canada, 1999), the Court noted: “Peaceful consumer leafleting by a few individuals is very different from a picket line. It seeks to persuade members of the public to take a certain course of action. It does so through informed and rational discourse, which is the very essence of freedom of expression.”135 In the sec-

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ond case (R.W.D.S.U v. Pepsi-Cola Canada, 2002), the Court went on to state: “Whether picketing should be enjoyed should not depend on who is carrying the picket signs or indeed, whether the communication is conveyed by a placard or as a pamphlet. Such distinctions operate to deprive union members of expressive rights available to other members of the public. We can find no persuasive reason to deprive union members of an expressive right as common law that is available to all members of the public.”136 This type of reasoning should come as no surprise. After all, in the context of peaceful secondary picketing, for example, workers’ rights have more to do with demarcation and fortification of one’s individual autonomy through peaceful expression of his or her views than with maintaining collectivist aspects of labor relations such as unionism and collective bargaining. As we have seen, the SCC has never shied away from protecting fundamental negative liberties in such circumstances. What is more, as far as the court of public opinion is concerned, it would have been puzzling had the Court extended the Charter’s freedom of expression provision to protect Mr. Zundel’s hate propaganda but not striking workers’ rights for peaceful leafleting. As of 2003, the body of constitutional rights jurisprudence in South Africa does not include a sufficient number of cases to allow us to assess the interpretive approach the SACC has taken with regard to labor relations, the right to strike, and so on. However, the SACC rulings in South African National Defence Union (SANDU) v. Minister of Defense (1998) and, more recently, in National Education Health and Allied Workers Union (NEHAWU) v. University of Cape Town (2002) and National Union of Metal Workers of South Africa v. Bader Bop Ltd. (2002) suggest that it is taking workers’ rights much more seriously than its counterparts in Canada, Israel, and New Zealand.137 In SANDU, the Court declared unconstitutional a provision of the Defense Act that prohibited members of the Defense Force from becoming members of a trade union or engaging in any form of public protest as defined in the act.138 The Court held that although members of the Defense Force may not be employees in the full contractual sense of the word, their conditions of enrollment in many respects mirror those of contractual employees. Soldiers are therefore entitled to form a representative body to look after their employment interests. The Court added that prohibiting participation in acts of public protest violated the right to freedom of expression of Defense Force members. In NEHAWU, the Court drew on the constitutional right to fair labor practices to hold that the transfer of a workforce to a new employer does not extinguish the workers’ rights and obligations flowing

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from their original contracts of employment, unless all involved parties have agreed otherwise.139 In its complementary ruling in National Union of Metal Workers, the Court ruled that the relevant provisions of the Labour Relations Act do not prevent members of a minority union from engaging in lawful strike, provided such a union is sufficiently representative of the pertinent workforce.140 Like her Canadian colleagues, a prudent Israeli lawyer representing striking workers would not advise her clients to turn to their country’s Supreme Court to seek constitutional protection of their collective rights. In recent years, the SCI has adopted an even narrower interpretation of workers’ rights than its Canadian counterpart. This trend can best be illustrated by considering changes in the liability of trade unions in tort. Until the late 1980s, the Israeli legislature granted labor unions and individual workers full immunity for lawful strikes and lockouts, based on the pre-1980s assumption that breach of contract is the only tort for which trade unions are liable.141 Since the 1980s, however, claims for damages have been submitted to courts against strikers based on civil wrongs, such as misappropriation of personal property, negligence, or trespassing. A newer and narrower interpretation of the freedom to strike has emerged, holding strikers liable in tort for damages that were caused to third parties even by lawful strikes. It was held in one case that striking is a relative freedom that can be limited not only whenever public interests are threatened but also whenever the rights of third parties to “reasonable economic expectations” are threatened.142 In more recent tort cases, strikers have been held responsible for causing breach of contract and breach of statutory duty between the employer and third parties in spite of these workers’ officially recognized immunity.143 In a landmark ruling in 1995, the SCI dramatically decreased labor’s collective bargaining power by declaring the right to strike as a nonconstitutionally protected right after defining the right to freedom of association in a labor union as a merely individual right, not a collective one.144 Another illustration of the selective, neoliberal interpretation of constitutional rights in the context of the labor market is seen in the SCI’s interpretation of freedom of occupation. As discussed earlier, Basic Law: Freedom of Occupation protects the right of every citizen or resident of the state to engage in any lawful occupation, profession, or business. Given the ambiguity of the law’s wording, the range of rights it protects is potentially quite wide. Nonetheless, the new Basic Law has been selectively interpreted by the SCI to protect the autonomy of the economic sphere and employers’ rights at the expense of employee rights.

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For example, one right that has gained constitutional status under the judicial interpretation of the new law is the employer’s right to hire and dismiss workers. While this interpretation establishes the constitutionality of the employer’s right, it does not recognize that employees might possess an equally important right to be employed. Stated differently, freedom of occupation upholds employers’ rights to dismiss workers, but not employees’ rights to keep their jobs. In Chief Justice Barak’s words: “Freedom of occupation is not the right to be employed, nor the right to work. Freedom of occupation is also not the right not to be dismissed from a job; tenure in a job does not derive from freedom of occupation but from freedom of contract. Freedom of occupation is the freedom to employ or not to employ.”145 Moreover, according to Barak, government regulation of prices, wages, and employment condition (for example, through setting minimum wage standards or statutory ceilings on working hours) may amount to violation of the right to freedom of occupation.146 Other rights that can protect employees and job seekers are also ignored. For example, the Court’s interpretation of the new Basic Law: Freedom of Occupation does not include a complementary constitutional obligation for employers (or the state) to create economic, geographic, or social conditions for full employment or to provide access to employment opportunities. This lack of commitment to meeting employees’ needs demonstrates an ingrained bias, guaranteeing freedom of occupation to employers while consigning the fate of employees and job seekers to fickle market forces. The SCI, however, has interpreted freedom of occupation as a means of preserving certain boundaries between the autonomous economic sphere and the interventionist state. In one of the first cases that dealt with this new Basic Law, the Court ruled that the state’s mandatory licensing and payment requirements for companies providing erotic telephone conversation services were unconstitutional on the basis of both the principle of freedom of occupation and the proportionality requirement in article 4 of the new law.147 It is no wonder, then, why the owners of the Israeli Playboy TV channel immediately turned to the SCI, claiming a “severe violation of freedom of expression and freedom of occupation,” after the Knesset adopted a law banning the televising of pornographic material on all local television channels. In a similar spirit, the SCI went on to question the constitutionality of legislation restricting two insurance companies from entering the private pension funds market, basing their position on the notion of free economic enterprise as embedded in Basic Law: Freedom of Occupation.148 This same antistatist sentiment surfaced yet again in another important SCI deci-

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sion, which nullified a section of a new Knesset law regulating the licensing of investment consultants based on their freedom of occupation.149 The picture has been similar in New Zealand. The scope of section 17 of the NZBORA declaring everyone’s right to freedom of association was recently questioned in Capital Coast Health.150 Representatives of a company under threat of strike by its union workers contacted its employees directly, warned them of the financial consequences of strike action, and threatened them with the hiring of nonunionized replacement workers. The union representing the workers applied to the Court, claiming a breach of its freedom of association and its exclusive representative status. But the Court approved the company’s measures, holding that an employer was entitled to warn employees of the financial consequences of strike action and of the steps that it intended to take in order to minimize the costs of a strike. The Court further held that the direct threat to the workers did not amount to negotiating with staff and that the employer could not therefore be said to have breached the workers’ rights to freedom of association.151 In sum, unlike the relatively progressive interpretation of workers’ rights by the SACC, the judicial interpretation of constitutional provisions protecting freedom of association and freedom of occupation in Canada, New Zealand, and Israel is based on an individualist worldview. This neoliberal position emphasizes the autonomy of the economic sphere and its property rights and at the same time calls for the state’s withdrawal from all labor relations and collective social and welfare spheres. The constitutional rights revolutions in Canada, New Zealand, Israel, and South Africa are still in their formative stages. Although it is still too early to identify prevalent patterns of judicial interpretation of constitutional rights, I believe some general provisional conclusions can be drawn from the analysis presented in this chapter. First, these four countries’ records of constitutional rights jurisprudence reveal a clear common tendency to adopt a narrow conception of rights, emphasizing uninhibited Lockean individualism and the dyadic and antistatist aspects of constitutional rights. Despite the open-ended wording of the constitutional catalogues of rights in Canada, New Zealand, Israel, and South Africa, the national high courts of all four countries tend to conceptualize the purpose of rights as first generation liberties protecting the private sphere (human and economic) from interference by the collective (often understood as the state and its regulatory institutions). National high courts in these countries thus tend to regard state regulation as a threat to human

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liberty and equality, and more so than the potentially oppressive and exploitative social relations and institutions of the so-called private sector. Moreover, the same constitutional rights provisions are often given a generous interpretation by these courts in the context of negative rights claims, but a much narrower interpretation in the context of positive rights. That being said, a significant difference remains among the four countries in terms of absolute numbers, relative success rates, and substantive jurisprudence; positive rights claims found greater support overall in Canada (primarily in the context of minority language education rights) and South Africa (primarily in the context of fundamental subsistence rights) than in New Zealand and Israel. This may be a reflection of the more explicit protection of these rights in the Canadian and South African constitution, a reflection of the relatively more progressive social ideology in these countries, or some combination of these and other factors. Second, the comparison of all four countries’ high court BOR cases— in conjunction with an examination of recent constitutional jurisprudence dealing with criminal due process rights, rights demarcating the private sphere (for example, freedom of expression and the right to privacy), subsistence social and economic rights, and freedom of association and occupation—effectively demonstrates that constitutional rights are never interpreted or implemented in a vacuum. Judicial interpretation depends to a large extent on the ideological atmosphere as well on the economic and social conditions within which it operates. While the wording of bills of rights is deliberately open-ended, their interpretation in present-day capitalist democracies often reflects and promotes ideological processes that limit the range of meanings that are likely to be attributed to them by policy-makers. This selective interpretation stands in sharp contrast to the more common, optimistic view that sees bills of rights as enduring shields against volatile temporary changes in the ideological metanarratives that surround them. Third, the findings presented here may help us assess the prospects for advancing progressive notions of distributive justice through the constitutionalization of rights and rights litigation. All of the fundamentals of neoliberal social and economic thinking (such as individualism, deregulation, commodification of public services, and reduced social spending) owe their origins to the same concepts of antistatism, social atomism, and strict protection of the private sphere that are currently enjoying dominance in the discourse of rights. As we have seen, national high courts in the world of this new constitutionalism are inclined to support claims for procedural justice and less state interference with the private sphere and are generally hostile

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toward claims for positive entitlements, substantive equality, state regulation, and workers’ rights. Even progressive adjudications with regard to sexual preference—the hallmark of progressive constitutional rights jurisprudence in many western democracies—have been based on the same logic that conceptualizes constitutional rights as primarily negative rights of nonintervention. I therefore suggest that BOR litigation might reduce social injustice primarily where it is congruent with the prevailing conceptualization of rights as protecting and expanding the boundaries of the private sphere. In sum, the impact of constitutionalization on the creation of meaningful, enduring protection of the lower socioeconomic echelons of capitalist society is often overrated. Judicial interpretations of constitutional rights appear to possess a very limited capacity to advance progressive notions of distributive justice in arenas such as employment, health, housing, and education— arenas that require greater state intervention and more public expenditure and wealth redistribution. However, as far as negative liberties are concerned, especially those freedoms associated with the protection of privacy and personal autonomy, formal equality, economic activity, movement, and property—all of which require that the state refrain from interfering in the private human and economic spheres—the judicial interpretation of rights is inclined to be much more generous and thus has the potential to plant the seeds of social change.

CHAPTER

5

Rights and Realities

Everybody knows that the dice are loaded. Everybody rolls with their fingers crossed. Everybody knows the war is over. Everybody knows the good guys lost. Everybody knows the fight was fixed: The poor stay poor; the rich get rich. That’s how it goes. Everybody knows. Leonard Cohen, Everybody Knows

Profound extrajudicial effects, both symbolic and practical, are often attributed to constitutional rights and constitutional rights jurisprudence. It is generally agreed that the recognition of the rights of historically disenfranchised minority groups has had an important symbolic effect for these groups. As race and gender scholar Patricia Williams put it, “[f]or the historically disempowered, . . . rights imply a respect that places one in the referential range of self and other, that elevates one’s status from human body to social being.”1 In the same spirit, most scholars of American constitutional law agree that the U.S. Supreme Court’s historic decision in Brown v. Board of Education stands even to this day as a beacon of hope for the poor and the disadvantaged. According to Austin Sarat, one of the founders of the critical law and society movement in the United States, “Brown was an occasion for the ideological rebirth of America, an occasion that tells a story of struggle and liberation and points the way for a new engagement with the problem of how men and women of different backgrounds and races might live together as equals.”2 According to Owen Fiss, an enthusiastic proponent of a worldwide proliferation of constitutional rights and judicial review as an effective path to social justice, the American Bill of Rights pro149

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vides a unique source for the successful litigation of rights in America, the most successful manifestation of which is Brown v. Board of Education, which “eradicated the caste structure” in America.3 Williams further elaborates on the motivational and emotional effects of rights-based constitutional recognition: “‘Rights’ feels so new in the mouths of most Black people. It is still so deliciously empowering to say. It is a sign for and a gift of selfhood . . . [T]he concept of rights, both positive and negative, is the marker of our citizenship, our participatoriness, our relation to others.”4 What is more, the constitutionalization of rights is said to nurture a culture of liberty in a society and to increase public awareness of fundamental civil liberties. In Ronald Dworkin’s view, the enactment of a bill of rights in Britain, for example, would not only force the British courts “to take rights seriously,” but would promote the enhancement of a “culture of liberty beyond the courtroom.” Litigation provides a highly visible forum where rights claims can resonate beyond the courtroom through increased media coverage and academic writing and through greater public awareness of “liberty issues.” Thus, the enactment of a bill of rights would help shape “the community’s shared sense that individual privacy and dignity, and freedom of speech and conscience are crucially important.”5 Harold Laski notes that “bills of rights are, quite undoubtedly, a check upon possible excess in the Government of the day. They warn us that certain popular powers have had to be fought for, and may have to be fought for again. The solemnity they embody serves to set the people on their guard. It acts as a rallying point in the State for all who care deeply for the ideals of freedom.”6 Still, the question remains: What is the actual impact of the constitutionalization of rights and the establishment of judicial review on advancing progressive notions of distributive justice? As we have seen in Chapter 4, the effects of constitutionalization on prevalent patterns of judicial interpretation of rights have been much more nuanced than the firm, but mostly untested and abstract, conventional wisdom would have us believe. On the one hand, the constitutionalization of rights has proven fairly effective in enhancing the legal status of and public awareness to procedural justice, freedom of expression, and formal equality. On the other hand, courts have been far less accommodative toward claims for positive entitlements, substantive equality, redistribution of resources, and workers’ rights. What is more, the practical impact of constitutionalization on closing the socioeconomic gap between the haves and have-nots—the traditional winners and losers of capitalism—has been at best negligible. The constitu-

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tionalization of rights in Canada, New Zealand, Israel, and South Africa has achieved little or no real change in arenas such as wealth redistribution, minority political representation, and the equalization of life conditions. The constitutionalization of rights has proven virtually futile in mitigating, let alone reversing, wide-ranging social and economic processes of deregulation, privatization, reduced social spending, and the removal of “market rigidities.” It has failed to promote the notion that no one can fully enjoy or exercise any classic civil liberties in any meaningful way if he or she lacks the essentials for a healthy and decent life in the first place.7 It has done little to combat the widening disparities in fundamental living conditions within and among polities. In fact, the constitutionalization of rights has been associated with precisely the opposite ethos, placing private ownership and other economic freedoms beyond the reach of majoritarian politics and state regulation and thereby planting the seeds for greater, not lesser, disparity in essential life conditions. Even the modest progress in the socioeconomic status of the lower echelons of capitalist society has not been accomplished through the constitutional or judicial spheres, but through the political sphere. Such scattered and sporadic improvements in the status of the worse-off have been essentially “self-referential” (that is, as compared to past socioeconomic rankings of the same group) rather than “other-referential” (that is, relative to other groups ranked higher on the socioeconomic scale).

Some Methodological Difficulties Before attempting to outline the actual redistributive effects of constitutionalization, we should consider certain methodological difficulties involved. First is the question of multiple causality: disentangling the contribution of constitutionalization from that of other societal and institutional factors is an almost impossible task. It is difficult to isolate the results of other factors—social, economic, or political—from those social changes that directly or indirectly result from the constitutionalization of rights. Even in cases where it seems the bill of rights has had a significant social impact, it is difficult to tell how much other variables have had to do with the change. To point out the complexities of measurement is not to say, however, that an empirical measurement of the impact of constitutionalization on social change is of no value. If, as some advocates of constitutionalization argue, the adoption of a constitutional catalogue of rights is of significant help to

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disadvantaged minorities beyond the symbolic level, then the advantage should be identifiable. As Gerald Rosenberg notes in The Hollow Hope with regard to his “constrained court” thesis, the claim that constitutionalization of rights has a significant impact on forwarding progressive notions of distributive justice becomes stronger with each additional instance in which a causal link can be identified.8 Conversely, the fewer domains in which such links can be found, the less likely it is that that the effect of constitutionalization is as significant as suggested by the conventional view. A second difficulty is the scope of the study. A comprehensive examination of each and every potential de facto extrajudicial impact of constitutionalization in a given country (let alone four countries) would require a large group of researchers armed with almost unlimited time and research budgets and would probably yield a series of volumes, reaching thousands of pages, and even at that might be incomplete. Obviously, such an ambitious evaluation is beyond the scope of this (or indeed any other) study. Nevertheless, by comparing prelegislation and postlegislation data pertaining to the allocation and distribution of resources, capabilities, and opportunities among those groups whom constitutional rights purport to help, we can begin to answer the question of whether the constitutionalization of rights and the transition to juristocracy more generally have the potential to plant the seeds of a more egalitarian society. The third methodological difficulty involved in assessing the real impact of constitutionalization on distributive justice is the question of the appropriate time span. Critics of the constraint court thesis argue that even if the data presented by Rosenberg and others on the protracted implementation of groundbreaking judgments is successful in undermining the hyperbolic assertions on the efficacy of litigation, it fails to take into account the long-term incremental effect of rulings such as Brown. Precisely because courts lack immediate enforcement and implementation power, the effectiveness of their rulings in bringing about social change ought to be measured through a relatively long period of time, preferably several decades. Such longitudinal studies of impact, however, inherently increase the problem of multiple causality: the longer the time span of the study, the more difficult it is to disentangle the contribution of constitutionalization to social change from that of other pertinent factors. Furthermore, even the most comprehensive longitudinal study to date of the incremental longterm effects of landmark court rulings on social policy (Malcolm Feeley and Edward Rubin’s impressive study of the long-term impact of court rulings on

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prison reform in the United States) is confined to the realm of procedural justice.9 It does not refer to any effects of rights jurisprudence, immediate or incremental, on eradicating historically rooted patterns of social and economic inequality through a meaningful redistribution of resources and opportunities. In fact, proponents of the rights model cannot point to any deep and enduring evidence that bills of rights, rights litigation, or jurisprudence has ever been responsible for long-lasting and effective redistribution of resources and opportunities, let alone sustained equalization of basic living conditions. In fact, quite often the opposite is true. In zealously protecting the private sphere, the constitutionalization of rights has served as effective means for shielding the economic sphere from the potential hazards of regulation and redistribution.

Negative Liberties and Neoliberal Realities Skeptical views as to the real impact of constitutionalization on social change may be traced back to the debates preceding the adoption of the U.S. Constitution. Securing free expression, “whatever fine declarations may be inserted in any constitution respecting it,” argued U.S. Founder Alexander Hamilton in his critique of bills of rights in the Federalist Papers, “must altogether depend on public opinion, and on the general spirit of the people and of the government.”10 In the same spirit, Justice Learned Hand once stated: “I often wonder whether we not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”11 In other words, some of the early framers of the American Constitution as well as a few of the Bill of Rights’ more recent interpreters believed that a rights-supportive culture in addition to a written bill of rights is a necessary condition for the actual protection of civil liberties. Further developing the major thrust of the rights-supportive culture argument, Robert Dahl suggests that in maintaining democratic political institutions, constitutional arrangements—and bills of rights in particular—are less important than the existence of favorable sociocultural conditions.12 Responding to William Riker’s constitution-centric approach, Dahl asserts that “[c]onstitutional rules are not crucial, independent factors in maintaining

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democracy . . . [T]o assume that this country [the U.S.] remained democratic because of its Constitution seems to me an obvious reversal of the relation; it is much more plausible to suppose that the Constitution has remained because our society is essentially democratic.”13 The rights-supportive culture argument is also complemented by the more general “social capital” argument. According to Robert Putnam and others, the sociocultural factor (that is, the existence of a vibrant civil society and a democratic civic tradition), rather than the institutional factor, is the most important variable in understanding why democracy works better in specific places.14 In a nutshell, the rights-supportive culture thesis emphasizes hospitable civic traditions and sociocultural conditions, rather than formal institutional settings, as the crucial factor in making constitutional democracy work. Any sober attempt to assess constitutional rights’ actual capacity to advance progressive notions of social justice within a broader sociocultural context must therefore pay close attention to the ideological affinity between the prevalent conception of rights as essentially negative liberties and the presently ubiquitous neoliberal, small-state social and economic worldview. Deregulation and privatization, free and “flexible” markets (meaning markets with low or no wage and welfare safety nets, disincentives for collective bargaining, minimal job security, and removal of trade shields), economic efficiency and fiscal responsibility (the latter often perceived as a call for reduced public spending on social programs while corporate welfare remains largely untouched) are all fundamentals of the present-day orthodoxy of economic neoliberalism. Likewise, hyperindividualism, solipsism, and a dyadic view of society are among the fundamentals of social new liberalism. These objectives are rooted in concepts of antistatism, anticollectivism, and social atomism that inform the current hegemonic discourses of rights.15 The prevalent culture of rights not only leads people to see in others the limitation of their freedom, thereby promoting a morally distorted conception of human relations in which “my fulfillment, my freedom and my self-realization depend upon my self-assertive capacity to place limits on yours”;16 it also exponentially multiplies the occasions for clashes of rights and impedes mutual understanding and the discovery of common ground, thereby trivializing core democratic values.17 The dominant notion of rights as negative freedoms is based on a simplistic view of society: that it is composed of an unencumbered, autonomous, and self-sufficient private sphere whose members’ full realization of freedom is constantly threatened by the

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long arm of the encroaching state. It calls on the state to refrain from interfering in the private sphere, thereby precluding the conceptualization of rights as constituting positive duties on the state to actively amend morally disturbing disparities in the allocation of resources and opportunities through the provision of basic life conditions to all. At the heart of this skeptical view of individual rights’ capacity to mitigate or reverse social and economic neoliberalism lies the realization that law may be an effective means for inducing social change only when the dominant ideological ambience encompassing it is conducive to such change. Any substantial ideological divergence between the law and its relevant social and political surroundings will result in the law’s being rendered ineffective as a means of achieving social change. Accordingly, the inextricable link between the prevalent conception of rights as negative liberties and the current antistatist macroeconomic creed essentially precludes the advancement of progressive notions of distributive justice. Put bluntly, there is minimal chance of diminishing the stark disparities in life conditions within and among polities in the neoliberal age while drawing on a conception of rights that sees the protection of the private sphere as its ultimate goal and that regards state regulation and statutory decommodification of social services as greater threats to human liberty and equality than the potentially oppressive and exploitative social relations and institutions of an expanded “private” sphere. As we have seen in previous chapters, the global trend toward social and economic neoliberalism has significantly affected the four countries at the center of this study. In each of these countries there has been a sustained attempt over the past few decades to dismantle the local version of the Keynesian welfare state in favor of more market-oriented, “small state” economic policies. New or looming budgetary deficits have been used to legitimate a pullback of the state from the social welfare and labor arenas. Industrial, taxation, trade, and social policy initiatives have been used as political instruments to reestablish the complete dominance of the market in civil society. Deregulation, commodification of social services, near-sacred protection of economic liberties, and loose enforcement of cogent labor and welfare laws have become ubiquitous. In Canada, New Zealand, and Israel, these developments were accompanied and reinforced by a political vocabulary that denigrated government and promoted the virtues of fiscal responsibility and self-reliance.18 Increased foreign ownership of essential industries and services, mass (and at times conspicuous) consumption, and

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an all-encompassing (and debilitating) Americanization of popular culture have been establishing themselves as norms. Meanwhile, a stock-exchange culture and a cult of efficiency have gained a near-sacred status in professional policy-making circles as well as in academia and the popular media. In short, a practical and ideological assault on substantive equality has become standard. The constitutionalization of rights has not impeded these developments. Consider the following facts. Over the past two decades, Israel’s Gini coefficient rose from 0.222 in 1982, to 0.298 in 1991, to 0.314 in 1994, and to a record high of 0.356 in 2000, making Israel one of the three most unequal countries in the west in terms of wealth distribution (third only to New Zealand and the United States).19 According to the United Nations’ UNDP Human Development Report 2002, the share of income of Israel’s richest quintile was equivalent to almost eleven times that of the poorest quintile during the 1985–2000 period. According to Israel’s Central Bureau of Statistics’ Income Survey 2003, the gap between the rich and the poor continued to grow in 2001–2002. As of December 2002, the share of income of Israel’s richest 10 percent was more than thirteen times that of the poorest 10 percent. In 2002 alone, the richest one-fifth of the Israeli population received 52 percent of all disposable income (compared with just over 43 percent in 1988, four years prior to the adoption of the new Basic Laws), while the poorest one-fifth received approximately 4 percent of all disposable income (compared with approximately 5 percent in 1988). And by 2000, over one-third of Israel’s households (34.1 percent) were living below the official poverty line, compared with only 28 percent in 1988. A 2002 report by the Knesset’s Society and Welfare Committee confirms that Israel has become the second or third most unequal society in the west and that over two-thirds of capital assets and holdings in Israel are concentrated in the hands of less than 10 percent of the population.20 As for the ethnic basis of economic inequality, where the average monthly income of all urban wage earners in 2000 was 100, that of native Israeli of Ashkenazi descent was 139, that of native Israeli of Mizrahi descent was 95, and that of an Arab-Israeli wage earner was 65.21 In other words, as of 2000 a Jewish wage earner of Ashkenazi descent made approximately 1.5 times more than a Jewish wage earner of Mizrahi descent and approximately twice as much as an Arab Israeli wage earner. In 2000, eighteen years after the adoption of the Charter, the richest onefifth of the Canadian population received 44.5 percent of all income (compared with 41.7 percent in 1981, one year prior to the adoption of the Charter), while the poorest one-fifth of the populace got only 4.5 percent (no real

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change since 1981). Canada’s richest 10 percent collected 28 percent of the country’s total income in 2000, up from 26 percent in 1990 and 25 percent in 1980. The poorest 10 percent saw their income share hold steady at 1.6 percent.22 Studies that consider ownership of land, houses, and financial assets show that the top quintile of the Canadian population now owns or controls over 75 percent of the country’s wealth (as compared to 64 percent in 1981), while the remaining four-fifths of the populace share less than 25 percent (36 percent in 1981).23 This growing gap in the distribution of wealth is even more dramatic if we compare the poorest 10 percent and richest 10 percent of the populace. In the mid-1970s, the richest 10 percent of Canadian families had an average market income of 15 times more than the poorest 10 percent. By 1997, the richest 10 percent were making over 80 times more than the poorest 10 percent. This growing inequality is illustrated by the rise in Canada’s Gini coefficient, from 0.315 in 1981 to 0.340 in 1991 to 0.353 in 1999.24 A 2002 study by Statistics Canada confirmed that the gap between rich and poor Canadians widened between the mid-1980s and the end of the 1990s. Only the upper tenth of the population has increased its share of total net worth over the past twenty years.25 According to the same study, the vast majority of middle- and low-income families had no more in savings to protect themselves against unexpected financial hardship at the end of the 1990s than their counterparts did in the mid1980s.26 The failure of constitutionalization to block the trend toward greater disparity in income distribution has been even clearer in New Zealand. Indeed, New Zealand has become the most unequal country in the entire developed industrial world in terms of income distribution. As indicated by the UNDP Human Development Report 2002, New Zealand’s richest quintile’s share of income was equivalent to 17.5 times the income of New Zealand’s poorest quintile during the 1985–2000 period. By 2000, for example, the lowest quintile’s share of total income had dropped to just over 2.5 percent (compared with approximately 4.5 percent in the late 1980s), while the richest quintile’s share of total income was just below 50 percent (as compared with approximately 40 percent in the late 1980s). The data also show a decline in the household income of welfare beneficiaries, from 72 percent of mean household income in 1988 to 58 percent in 1999. The overall picture reveals unprecedented cuts in social benefits and extensive privatization of formerly state-controlled public services. This new reality is demonstrated by the sharp rise in the Gini coefficients—from 0.287 in 1985 to the highest coefficient of any of the Organization for Economic Cooperation and Develop-

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ment (OECD) countries, 0.398 in 2000 (the steepest increase in inequality of any OECD country over this period).27 A similar pattern of growing income disparity has established itself in all but two OECD countries over the past three decades, as has the neoliberal rhetoric justifying such disparities—regardless of the degree of formal constitutional protection of equality rights among these countries. Similarly, the constitutionalization of rights has had little impact on the vast socioeconomic gap in South Africa. As of mid-2002, South Africa’s Gini coefficient had barely shifted. At 0.58, among the world’s hundred most populated countries only that of Brazil is higher. As the UNDP Human Development Report 2002 indicates, South Africa’s richest quintile still received 65 percent of total income during the 1985–2000 period, while the poorest quintile’s share of total income during that period was just below 3 percent—a ratio of 22.5 to 1. According to the Human Rights Index of the United Nations, the lifestyle enjoyed by white South Africans in 2000 was equivalent to that of Canadians or New Zealanders, while black South Africans lived under conditions similar to their counterparts in Congo and Equatorial Guinea. Moreover, according to a June 2001 report by Statistics South Africa, the poorest 40 percent of households received only 11 percent of total income, while the richest 10 percent of households received over 40 percent of total income. Ten years after the abolition of formal racial segregation and eight years after the constitutionalization of rights in South Africa, race continues to be the most significant explanatory variable for these disparities in wealth distribution. A particularly distressing measure of the failure of constitutional catalogues of rights to promote substantive equality is their negligible impact on the ratio of women’s income to men’s income in the four countries. Recent data indicates that even when all other pertinent factors are equal, women’s average earnings remained at 65 to 85 percent of men’s in the same profession.28 While there was a slight improvement in this statistic over the past three decades in all four countries, in each case this change began prior to the constitutionalization of equality rights and does not appear to be a result of the constitutional reform in these countries. In all four countries women account for approximately two-thirds of the workers in the low income–unskilled jobs category and approximately half of the workers in the midincome jobs category, but they make up less than one-third of the workers in high income–professional jobs—a situation that has not changed since constitutionalization. In short, the constitutional entrenchment of equality rights has not significantly reduced gender-based discrimination in the job

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market. Despite the constitutionalization of equality rights in the four examined countries, female workers with equal qualifications still make an average of only about two-thirds to three-quarters of their male colleagues’ salaries. In sum, the evidence suggests that constitutionalization has had little or no impact on mitigating historically rooted patterns of socioeconomic disparities. Campaigners for better living conditions for the poor and historically disenfranchised had hoped that things would change for these groups in the years following constitutionalization. However, there is no systematic evidence that the constitutionalization of rights in Canada, New Zealand, Israel, and South Africa has significantly (or even moderately) improved the status of historically disenfranchised groups in terms of access to education, basic housing, and health care, let alone employment or wealth. Indeed, most longitudinal statistical surveys suggest that historically disenfranchised groups still leg behind badly in these pertinent socioeconomic measures. In 1981, a year before the enactment of the Charter of Rights and Freedoms in Canada, 37 percent of aboriginal people and 20 percent of nonaboriginals left school after having completed less than nine grades. In 2000, eighteen years after the constitutional recognition of aboriginal people’s rights, 25 percent of the aboriginal population left school after less than nine years, as compared with 12 percent of the nonaboriginal population (a ratio of roughly 2 to 1, similar to 1981).29 At the other end of the educational ladder, 2 percent of the aboriginal population in Canada held a university degree in 1981 as compared with 8 percent of the nonaboriginal population. In 2000, this gap had widened. In the same period, the gap between aboriginal and nonaboriginal people’s high school completion narrowed, but only slightly. While there has been an improvement in access to education and educational attainments by Maori and non-Maori populations in New Zealand between 1987 and 2000, much of the improvement in Maori educational status is “self-referential” (that is, compared to Maori educational attainments in the past), rather than “other-referential” (relative to non-Maori educational status).30 In 2000, for example, only 7 percent of the Maori population held some sort of university degree in 2000 as compared with just under 30 percent of the non-Maori population. A decade after the adoption of the NZBORA, a third of the Maori population had no educational qualifications whatsoever, as compared with 10 percent of the non-Maori population (a ratio of 3.3 to 1, as compared with a ratio of only 2.2 to 1 in 1987, three years prior to the enactment of the NZBORA). In 2000, approximately 60

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percent of the Maori population had only an elementary school education or had no formal education at all, while only 23 percent of the non-Maori population had such a limited educational record in the same year. In Israel, too, the gap between Jewish and Arab schools, for example, has remained visible on every level in spite of the 1992 constitutionalization of rights. According to Israel’s State Comptroller’s Report (2000) and a special report prepared by Human Rights Watch in late 2001, an average of 9 percent of Arab students aged 15–16 dropped out of school each year throughout the 1995–2000 period, as compared with approximately 4 percent of Jewish students of the same age. Of those aged 16–17, close to 40 percent of Arab students dropped out, as compared with 9 percent of Jewish students.31 Arab schools also lag far behind Jewish schools in the social service programs they provide to their students. As of 2001, only 25 percent of Arab schools offer career and vocational services, as compared with 75 percent of Jewish schools. In 2001, the average number of pupils per teacher stood at 24 in Arab schools and 12 in Jewish schools.32 Arab children of preschool age make up about 30 percent of the general preschool population, yet there are far fewer government resources available to them than to Jewish toddlers. Moreover, many preschool educational facilities in Arab communities are dilapidated and overcrowded and lack special education and counseling services, libraries, and sports facilities. In 2000 the Labor and Welfare Ministry sponsored the development of 64 day-care centers, 17 of which were located in Jewish settlements in the Occupied Territories. Not one of the centers was in an Arab village. Reports issued by the U.S. Department of State indicate that government spending is proportionally far lower in predominantly Arab areas than in Jewish areas.33 Yet despite the clear pattern of discrimination and inequality, attempts by domestic and international human rights organizations to draw on new Basic Laws–based constitutional litigation to fight discrimination against Arab-Israeli municipalities in governmental funding of educational programs and other social services have failed.34 In short, despite the initial hopes of the Arab minority in Israel, the constitutional entrenchment of rights in Israel does not appear to have improved the access of Arab-Israelis to education. Likewise, the constitutionalization of rights in Canada, New Zealand, Israel, and South Africa has failed to reduce the stark disparities in housing conditions and levels of health between established and disenfranchised groups in the four countries. In Canada, despite the recognition of aboriginal

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peoples’ rights by the Charter, aboriginal housing has remained in a bad state, falling in all respects below the standards that prevail elsewhere in the country; in some respects the situation has worsened in the Charter era. A recent study by Statistics Canada shows, for example, that aboriginal households are more than 90 times more likely than other Canadian households to be living without a piped-in water supply. Houses occupied by aboriginal people are twice as likely to need major repairs, and almost 20 percent are already in poor condition. In 2000, the average number of persons per dwelling in Canada was 2.7, but this figure was 3.7 for aboriginal people (3.4 in 1981). The story is not much different in New Zealand. A widely publicized report by New Zealand’s Ministry for Maori Development indicates that the disparity in housing conditions between Maori and non-Maori has persisted at roughly similar levels over the approximately twelve years since the adoption of the 1990 NZBORA.35 The racially based disparities in housing conditions and health status in present-day South Africa are so great that no survey could capture its full scope. Detailed and reliable data pertaining to the conditions in which the vast majority of black South Africans lived during the apartheid years are hard to obtain. That said, more recent data suggest that the present situation is far from encouraging. As of 2002, over 30 percent of South Africa’s black population were not expected to survive to the age of forty, and over 60 percent were not expected to reach the age of sixty. Approximately 15 percent of the black population had no access to safe water, sanitation, or basic health services. Over a third of the black population were living in tents, huts, and other forms of temporary housing. The life expectancy of black South Africans was fifty-seven years while that of whites was seventy-five. The infant mortality rate stood at 70 per 1,000 live births among blacks, as compared with 9 per 1,000 live births among whites. As of 2002, there were over 240 cases of tuberculosis per 100,000 blacks as compared with merely 4 cases per 100,000 whites. South Africa also has the world’s fastest growing HIV/AIDS epidemic, with approximately 5 million people already HIV-infected and an estimated 1,500 new cases daily. Blacks constitute over 99 percent of these cases. The right to life, education, health care, housing, food, water, and social security are all protected by the South African Bill of Rights. Recognizing the great disparities in wealth and the dismal housing and health conditions in thousands of black communities, the Constitutional Court declared its full commitment to promoting substantive equality in South Africa.36 Yet, as we

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have seen in Chapter 4, despite its rhetoric of restorative justice the Court has never even considered the option of fighting the great disparities in housing and health status by recommending the introduction of some kind of revolutionary distributive measures. So far, the judiciary has almost invariably supported the legislature’s position on any issues regarding land and asset redistribution (or lack of same). Not surprisingly, the black population’s attitude toward the SACC has been ambivalent.37 Land redistribution as restitution for dispossession of native lands during the apartheid era has also proved to be an inefficient method for closing the gaps in housing conditions in the new South Africa. Until the early 1990s, a series of legislative acts enacted during the heyday of apartheid ruled out any meaningful land ownership by nonwhites. The outcome of these policies was that 87 percent of the land in South Africa was held by whites. Given these stark inequalities in land ownership, the redistribution of land would have been a promising first step, however modest, on the way toward creating a more egalitarian South Africa. In 1994, the Redistribution of Land Rights Act established the Constitutional Land Court and the Commission on Restitution of Land Rights. The Land Court’s mission was to settle cases previously vetted and evaluated by the Commission on Restitution. The various forms of compensation offered to claimants included the return of original lands, ownership of other lands, financial remuneration, or preferential access to government housing. Of the 65,000 claims for restitution submitted by December 1998 (the deadline set for submitting claims), fewer than 3,500 had been settled as of January 2003. Less than 2 percent of these settlements involved actual land redistribution (rather than meager financial remuneration). Given these facts, we can safely say that all other variables being equal, the independent effect of constitutionalization on closing the substantive gaps in living conditions in South Africa and elsewhere has been, and will most likely continue to be, negligible. What has been the impact of constitutionalization on another fundamental building block of democracy—political representation of visible minorities? Appropriate political representation of historically underrepresented groups may be seen as one of the most crucial steps in improving the status of these groups. Under a system of representative democracy, the people rule by electing others to make decisions for them. Parliament as an elected assembly of the people’s representatives should ideally represent the various demographic characteristics of the people. In practice, however, this has

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rarely been the case. The vast majority of parliament members in most western democracies during the last two centuries have been affluent white men aged fifty and over who represent, and are representative of, the particularistic interests of the upper classes and their dominant ideological preferences.38 Constitutional rights and judicial review have not proven efficient mechanisms for overcoming these systematic inequalities in political representation. As is well known, on numerous occasions conservative forces drew on the American Bill of Rights to block attempts to enhance the political representation of visible minorities in the United States. In Buckley v. Valeo (1976), for example, the Court struck down campaign finance reform that put spending limits on political candidates and so-called third parties on the ground that such limits violate the First Amendment’s guarantee of free speech.39 In Shaw v. Reno (1993) the U.S. Supreme Court ruled that congressional districts created to maximize minority representation might be unconstitutional on equal protection grounds.40 Applying this principle, the Court in 1995 struck down a redraw of Georgia’s eleventh congressional district designed to maximize black representation, therefore calling into question the validity of hundreds of majority-minority congressional, state, and local districts created during that decade.41 In Bush v. Vera (1996) the Court went on to hold unconstitutional on equal protection grounds a Texas redistricting plan that had created two majority-black districts and a majority-Latino district.42 One of the high points of the U.S. Supreme Court’s battle against minorities’ political representation came in 1999 in the Department of Commerce case, when the Court invalidated a plan by the Clinton administration to use statistical sampling techniques in conducting the year 2000 decennial census in order to correct the chronic and growing problem of undercounting (and therefore underrepresentation) of racial minorities in past decennial censuses.43 In its landmark ruling in Bush v. Gore (2000), the Court once again gave priority to formal equality considerations over fair representation considerations.44 As in the United States, the Canadian single-member-district electoral system erects substantial barriers to direct representation of most minority groups in the Canadian House of Commons. These barriers exist mainly because of zoning problems and because minorities often lack substantial geographical concentration. Asian-Canadians (over 12 percent of the total population) and African- and Caribbean-Canadians (4 percent of the total population) are rarely represented at all, let alone proportionally, in the

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House of Commons. All proposals introduced in recent years to reserve seat quotas for Canadian First Nations and other visible minorities both in the House of Commons and in provincial legislatures (for example, the 1991 proposal to designate aboriginal electoral districts or the representation provisions of the 1992 Charlottetown Accord) have failed.45 As we have seen in Chapter 3, the parliamentary representation of historically underrepresented groups in Israel has consistently improved over the last two decades. The Knesset representation of Arab-Israelis (about 20 percent of Israel’s population) increased from 5.8 percent in 1981 to 11 percent in 1999; the percentage of MKs representing religious and orthodox-religious Jewish populations (about 25 percent of Israel’s population) rose from 9 percent in 1981 to 24 percent in 1999; and Mizrahi Jews (about 40 percent of Israel’s population) increased their representation in the Knesset from 26 percent in 1981 to a proportional 40 percent in 1999. The picture is similar with regard to other democratically elected bodies in Israel, such as municipalities. All of these changes, however, began over a decade prior to the enactment of the new Basic Laws in 1992. Indeed, as suggested in previous chapters, judicial empowerment through constitutionalization in Israel (as well as in numerous other new constitutionalism countries) was a reaction to or a preventive measure against the increasing presence of historically marginalized interests and policy preferences in crucial majoritarian policy-making arenas. Judicial empowerment was not a reflection of this presence. In other words, more demographically representative political processes are among the catalysts, not the outcomes, of constitutionalization. After all, how else can we explain the near-miraculous conversion to constitutional rights and active judicial review among white South African elites? Facing the inevitable abandonment of “ethnic democracy” and the adoption of meaningful universal suffrage practices, South Africa’s elites found in constitutionalization a response to these ominous changes. Whereas the constitutionalization of rights has had a minimal effect on reducing material inequality, it has played an important role in eroding the legal status of one of the most significant “market rigidities”—collective bargaining through trade unions. As shown in Chapter 4, the interpretation of constitutional provisions protecting freedom of association and freedom of occupation in Canada, New Zealand, and Israel is based on a neoliberal, individualist worldview that emphasizes the autonomy of the economic sphere and that calls for the state’s withdrawal from labor relations and from

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collective social-welfare concerns. By narrowly defining the right to freedom of association as an individual right, national high courts in these four countries denuded it of any meaning that might allow a group of workers to stand together against their employer. As a result, the right to strike, for example, has been excluded from the boundaries of the right to freedom of association in these countries. Not surprisingly, the new constitutionalism has emerged while workers’ collective bargaining power has declined. While in Canada there was a relatively modest decline in the rate of trade unionism over the period of the study (43 percent in 1977; 38 percent in 1995), there was a sharp drop in the percentage of workers who were unionized in New Zealand, South Africa, and Israel from 1985 to 2000 (see Figure 5.1). According to the 1998– 99 Report of the U.N. International Labour Organization (ILO), there was an astonishing 75.7 percent drop in trade union membership in Israel between 1985 and 1995—the steepest drop in labor union membership in the world during this period. Whereas in 1987 (five years prior to the enactment of the new Basic Laws), more than 85 percent of Israel’s wage earners were unionized, by 1999, only 24 percent were unionized. In real numbers, membership in labor unions, which once reached over 1.7 million, stood at less than 600,000 by 2000. Likewise, union membership in South Africa (currently at 35 percent of those employed in the wage economy) has been declining over the last decade, primarily as a result of job layoffs and declining employment, including those sectors that were previously heavily unionized, such as mining. New Zealand meanwhile witnessed a dramatic drop of almost 50 percent in trade union membership between 1985 and 1997—the second sharpest drop in labor union membership in the world over this period. In 1985, 43.5 percent (685,000 workers) of New Zealand’s wage earners were unionized. By 1999, this percentage had dropped to about 20 percent (360,000 workers). The ILO’s statistics indicate, then, that in the years since constitutionalization, there has been a sharp drop in both the number of strikes and lockouts and in the number of workers participating in strikes and lockouts in all four countries. There is little doubt that the de facto status of those classic economic freedoms that libertarians often depict as core rights has changed dramatically in the four examined countries following constitutionalization.46 In each of these countries constitutionalization provided a legal framework for litigants representing private and corporate economic interests to challenge various forms of what is often portrayed as excessive state intrusion into the suppos-

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Percent 90 80 Constitutionalization of freedom of association

70

Canada New Zealand Israel

60

South Africa

50 40 30 20 −5

−3

−1

1

3 Year

5

7

9

11

Figure 5.1 Union membership as percentage of wage earners (Source: ILO Reports, 1999–2002)

edly autonomous economic sphere. As we have seen in previous chapters, these attempts to challenge state regulation were for the most part successful and served as an important contributing factor to a change in the status of economic liberties in the four countries. The general picture of this change in economic liberties is best captured by changes in the four countries’ ratings of overall economic freedom by international surveys. Such surveys are published by a variety of think tanks, including Freedom House (an internationally renowned civil-libertarian organization), the Heritage Foundation (a right-wing American research institute), the Cato Institute (a libertarian American think tank), and several other research institutions. These international surveys base their assessments of the de facto status of economic freedoms on criteria such as the freedom to hold property, the ownership of foreign currency, the proportion of foreign ownership of economic enterprises and corporate assets, the maintenance of bank accounts abroad, the level of private investments, the freedom to trade internationally, government consumption and expenditure as a percentage of GDP, and income tax rates. Figure 5.2 presents the changes in the combined ratings of de facto economic freedoms (with the figure 10 meaning maximum economic freedom)

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10 = maximum economic freedom 10 9 Constitutional reform

8 7 6 5 4

Canada New Zealand Israel

3

South Africa

2 −10

−5

−3

−1

1 Year

3

5

7

9

11

Figure 5.2 Combined economic freedom ratings

in the four countries from ten years prior to the constitutionalization of rights to the latest year for which rating was available. The combined scores for each country were calculated as the mean of the scores given to each country by four independent international surveys of economic freedom.47 In all four countries the impact of constitutionalization on economic liberties is clear: enhancement in the status of economic liberties follows the constitutionalization of rights. In more general terms, the constitutional entrenchment of property, movement, and occupational rights appears to have promoted greater economic liberty in each of the countries. Clearly the constitutional entrenchment of rights in a given country is not the sole factor promoting economic liberty in that country. However, we can safely say that more often than not, the constitutionalization of rights has been a catalyst in enhancing such liberties. As Benjamin Disraeli reportedly said, “there are three kinds of lies: lies, damned lies, and statistics.” Indeed, numbers fall short of capturing the entire scope of the effects often attributed to the constitutionalization of rights. Nevertheless, the data presented here can shed some light on the often ab-

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stract and untested generalizations concerning the impact of constitutionalization on the de facto status of the social groups that the bills of rights of these four countries purport to help. In doing so, they may help reveal the broader social trends behind constitutional transformation. The data presented in this chapter, along with the comprehensive examination in Chapter 4 of contemporary trends in the judicial interpretation of constitutional rights, suggest that simple and sweeping claims about the unequivocally positive effects of constitutionalization on historically marginalized interests ought to be viewed skeptically. As we have seen, there is much to question regarding the claim that bills of rights have been or are likely to be agents of effective reform in advancing progressive notions of distributive justice. That the evidence of this is unclear is particularly significant, since concern for these interests is a cornerstone for validating and enhancing judicial authority. Yet the data presented here point in the opposite direction. Whereas the constitutionalization of rights does have crucial importance in affirming marginalized identities and enhancing the status of individual freedoms, its independent impact on ameliorating the socioeconomic status of historically disenfranchised groups is often exaggerated.

CHAPTER

6

Constitutionalization and the Judicialization of Mega-Politics

Nothing falls beyond the purview of judicial review. The world is filled with law; anything and everything is justiciable. Aharon Barak, Chief Justice of the Supreme Court of Israel

Though the impact of constitutionalization on forwarding progressive notions of distributive justice is often overstated, there can be no doubt that it has had a transformative effect on the political role of courts. Over the past two decades, the national high courts of Canada, Israel, New Zealand, and South Africa (as well as of many other countries) have become major loci for dealing with the most fundamental political controversies a democratic polity can contemplate. To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral or political controversy in these countries that does not sooner or later turn into a judicial one.1 Relying on newly established constitutional framework and judicial review procedures, political deference to the judiciary in these countries has reached unprecedented heights. As in other countries throughout the new constitutionalism world, the national high courts of Canada, New Zealand, Israel, and South Africa have been increasingly called on to determine a range of matters, from the scope of expression, religious freedoms, privacy, and reproductive rights to fundamental separation-of-powers principles and public policies pertaining to education, immigration, criminal justice, property, and commerce, to name only a few heavily judicialized policy realms. However, the expansion of the province of courts in determining political outcomes has extended well beyond the now-standard concept of judicial policy-making through constitutional rights jurisprudence and judicial redrawing of legislative boundaries among branches of government. Recently, judicialization of politics has expanded to include the transfer to the judicial 169

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arena of foundational nation-building challenges (such as the future of Quebec and the Canadian federation, the deep secular-religious cleavage in Israel, and the birth of multiracial democracy in South Africa) and fundamental restorative justice dilemmas (such as justice in the post-apartheid era in South Africa and the battle over the status of indigenous peoples in “settler societies” such as Canada and New Zealand). These emerging areas of judicial intervention expand the boundaries of national high court involvement in the political sphere beyond the ambit of common rights or federalism jurisprudence, taking the judicialization of politics to a point that far exceeds any previous limit. It is generally agreed that there is a close affinity between the existence of a constitutional catalogue of rights in a polity and judicial activism on the part of that polity’s judiciary. If the constitution does not list tangible and defensible rights that individuals hold against the state, then judicial review is based on limited ultra vires principles and is generally confined to procedural matters. In these circumstances, intervention by the judiciary in fundamental moral controversies or in highly political or politicized issues is generally unlikely. The existence of a constitutional catalogue of rights, by contrast, not only provides the necessary institutional framework for courts to become more vigilant in their efforts to protect the fundamental rights and liberties of a given polity’s residents, but also enables them to expand their jurisdiction to address vital moral dilemmas and political controversies of crucial significance to that polity. What is more, the existence of a constitutional framework for judicial activism may provide political actors who are unable or unwilling to advance their policy preferences through majoritarian decision-making arenas with an alternative institutional channel (the courts) for accomplishing their policy goals. Therefore, in countries where bills of rights and active judicial review procedures have been adopted, one can expect a significant change in the frequency and scope of exercise of judicial review and a corresponding intrusion by the judiciary into the prerogatives of both legislatures and executives. But however significant the presence of a constitutional framework may be, it is not itself a sufficient condition for generating the depth and extent of judicial intervention into the political sphere witnessed by the four polities under scrutiny in this study. Such an unprecedented level of political jurisprudence could not have developed without the support of influential political elites. As we have seen in earlier chapters, judicial empowerment through constitutionalization and the corresponding transfer of policy-mak-

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ing power from legislatures and executives to courts may become attractive for elites who enjoy better access to and influence on the courts. From the politicians’ point of view, however, the delegation of power to the courts (or to other semiautonomous professional policy-making bodies, such as central banks, supranational bureaucracies, and the like) poses a major dilemma: how to ensure that once courts (or other such institutions) are granted extended policy-making powers they will produce judgments that reflect the ideological preferences and serve the political interests of those who have handed policy-making over to the judiciary.2 This dilemma is intensified when one considers that, unlike ministerial delegation of authority to bureaucrats, constitutionalization may prove to be difficult or impossible to reverse. History has shown that constitutions are difficult to amend or reform after their enactment, to the extent that an entrenched constitution seems to acquire a life of its own. While increasing judicial intrusion into the prerogatives of the legislature and the executive may provide a short-term institutional solution for influential elites that are increasingly under threat, in the long term it may limit the room for institutional maneuvering available to political power-holders. Hence, judicial empowerment through constitutionalization may ultimately create an undesirable institutional setting for the ruling elites and their constituencies. What is more, opposition or minority groups could also learn to use the new constitutional framework to advance their policy preferences by presenting them as rights claims. At least in theory, once granted authority, there is the risk that courts might metamorphose into Dr. Frankenstein’s monster: unpredictable and autonomous decision-making bodies whose judgments run counter to the interests and expectations of their political advocates. But how realistic is the threat of consistent counterestablishment judicial hyperactivism in the long term? In the first two sections of this chapter, I examine postconstitutionalization political jurisprudence in Canada, Israel, New Zealand, and South Africa with these questions in mind. Because constitutional dialogues, judicial review practices, and political discourses vary from country to country, I discuss in detail an array of specific examples of judicialization of highly contentious political controversies from each country. My analysis suggests that when contemplating foundational political questions, these countries’ national high courts—either as a result of their members’ ideological preferences, or their strategic behavior, or some combination of these and other factors—are strongly inclined to rule in accordance with national

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metanarratives and the interests and expectations of ruling elites. Indeed, as Robert Dahl observes with regard to the U.S. Supreme Court, “it is unrealistic to suppose that a Court whose members are recruited in the fashion of the Supreme Court justices would long hold to norms of rights of justice that are substantially at odds with the rest of the political elite.”3 The Supreme Court may be “the forum of principle” in American life, as Ronald Dworkin argues, but the principles that justices articulate, as Dahl and others point out, are likely to be those favored by the governing elites. Political jurisprudence in the four countries studied here has certainly not been an exception to this rule. Furthermore, as I demonstrate in the third section of this chapter, when courts in these and other new constitutionalism countries do occasionally “go astray,” such unsolicited manifestations of judicial intervention in the political sphere seldom survive the stern reactive pressures brought to bear by the political forces whose policy preferences or room for political maneuvering was curtailed by overactive courts.

Judicialization of Foundational Nation-Building Questions The judicialization of foundational nation-building processes—the transformation of national high courts into major decision-making bodies dealing with fundamental questions concerning the very definition, or raison d’être, of the polity as such—is common in fragmented polities facing deep ethnic, linguistic, and religious cleavages that may result in political crises of ungovernability or threats of political breakdown. The constitutional revolutions in Canada, Israel, and South Africa (and to a lesser degree in New Zealand) have had a dramatic impact on the transformation of these countries’ judiciaries into central arenas for contemplating (and some would say redefining) their respective polities’ formative national narrative. A few textbook examples of this increasingly common scenario of political jurisprudence include the unprecedented involvement of the Canadian judiciary in dealing with the political future of Quebec and the Canadian federation, the highpoint of which has been the Supreme Court of Canada’s landmark ruling in the Quebec Secession Reference (1998)—the first time in the history of modern constitutionalism a democratic country tested in advance the legal terms of its own dissolution; the wholesale transfer of the problems relating to the deep religious-secular cleavage in Israeli society to the judiciary through the judicialization of the question “Who is a Jew?” and the corresponding entanglement of the SCI in interpreting Israel’s fundamental

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definition as a “Jewish and democratic state”; and the constitutional certification saga in South Africa—the first time a court refused to accept a national constitutional text drafted by a representative constitution-making body. In all of these cases, national high courts were called on by powerful political elements to assert their authority over the political sphere. In each case, the courts adhered to the ideological propensities and policy preferences of those who initiated the transfer of power to the judiciary. Perhaps nowhere has this trend been as clear as in Israel, with its judicialization of formative nation-building questions. Although the judicialization of such questions began before 1992, it has accelerated significantly in the aftermath of the constitutional revolution. A clear manifestation of this trend is the transfer to the judiciary of the most fundamental challenge the Israeli polity has faced since its foundation: the creation of an ideologically plausible and politically feasible synthesis between Israel’s commitment to both particularistic (Jewish) and universalistic (democratic) values. Reaching such a synthesis is especially problematic given that approximately one-fifth of Israel’s citizenry (excluding the Palestinian residents of the West Bank and Gaza Strip) consists of non-Jews (primarily Muslims, Christians, and Druzes). Even within the Jewish population itself, the exact meaning of Israel as a Jewish state has been bitterly contested. Historically, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. In practice, however, opinions differ bitterly as to whether Jews are citizens of a state, members of a nation, participants in a culture, or adherents of a religion. Even within the latter interpretation—arguably the most stable of these constructions—there are widely divergent beliefs and degrees of practice. As the historical political hegemony of Israel’s secular Ashkenazi elite and its grip on the country’s important political decision-making forums have become increasingly challenged, its willingness (if not eagerness) to transfer these crucial questions from the political sphere to the Supreme Court has increased. Based on the SCI’s record of adjudication and personal composition, as well as the ideological preferences of its justices, Israel’s secular Ashkenazi bourgeoisie can safely assume that its policy preferences on these formative questions of collective identity will be less effectively contested in the judicial sphere. As expected, the Court has delivered the goods. Consider the following examples. The Meatrael affair—one of the first post-1992 landmark cases

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dealing with the normative foundations of Israel—raised a prima facie contradiction between the constitutional right to freedom of occupation and Israel’s primary character as a Jewish state.4 Meatrael, a private company that intended to import nonkosher meat products into Israel, appealed to the SCI against the Ministry of Religious Affairs’ refusal to license the company to do so. The company argued that the ministry’s refusal violated its constitutional right to freedom of occupation. The ministry’s refusal was based on the claim that Israel’s Jewish character was one of the state’s supreme constitutional norms and thus had priority over any other norm. In its first decision in the case, the Court declared the ministry’s refusal unconstitutional because it stood in contradiction to the principles of the new Basic Law and thus infringed the company’s right to engage in any legal economic initiative. Under pressure from the religious parties, the Basic Law was then amended, in the spirit of the Canadian “override” clause, to allow for future modifications by ordinary laws endorsed by an absolute majority of Knesset members. Such an amendment, forbidding the import of nonkosher meat, was subsequently enacted in 1994. Based on the new 1994 “Meat Law,” the government renewed its refusal to license the import of nonkosher meat. In response, Meatrael appealed to the Supreme Court again, arguing for its right to engage in any legal economic initiative and for the unconstitutionality of the Meat Law. This time the Court ruled against the company, based on the reasonableness of the new law, given the conditions for modification mentioned in the Basic Law.5 Behind this decision, however, lay immense political pressure on the Court not to allow any further erosion of the idea of “Israel as a Jewish state” as the highest constitutional norm. In spite of its somewhat anticlimactic ending—the legislature ultimately managed to circumvent judicial scrutiny of its decision—the Meatrael affair clearly illustrates the impact of the new Basic Laws on the contours of political discourse concerning the ideological foundations of Israel. Indeed, prior to the adoption of the new Basic Laws, it would have been unthinkable for the legislature to scramble to assert its will in such matters and obviate a constitutional crisis in the courts. In a follow-up ruling the SCI went on to harshly criticize the Central Rabbinate for its continuous misuse of authority and blunt contempt of court rulings in illegally denying kashrut certificates from kosher meat producers trading with merchants of nonkosher foods.6 More important, the Court stated that the Central Rabbinate and the entire rabbinical court system are first and foremost statutory bodies created through state laws and that the

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decrees and verdicts issued by these bodies must therefore conform to state laws and constitutional norms, even when these laws and norms appear not to be in line with religious norms. The potential implications of this statement to the autonomy of the rabbinical court system are far reaching. But the Meatrael saga and its aftermath was only the first round in a wave of postconstitutionalization adjudications related to the deep secularreligious cleavage in the Israeli polity. Armed with the provisions of the new Basic Laws, appellants representing an explicitly secular policy agenda have been successful in recent years in transforming the SCI into a promoter of their policy preferences. Several illustrations of this trend include the curtailment of the exclusive jurisdiction of rabbinical courts in matters of personal status; the liberalization of prayer rights in Jewish holy sites; the Court’s continuous questioning of the constitutionality of the draft deferment arrangement; and the Court’s revolutionary answer to the question “Who is a Jew?” In the Bavli case (1995), the Court subjected the adjudication of all religious tribunals, including the Great Rabbinical Court, to general principles of constitutional law. While the Court recognized the special jurisdictional mandate awarded to Jewish, Muslim, Christian, and Druze courts by the legislature, it nevertheless asserted its power to impose constitutional norms on their exercise of authority.7 Rabbinical court officials have responded by publicly asserting their resistance to the idea that the SCI, a secular entity, possesses a mandate to review their sphere of adjudication, which rests on religious law. Some have gone so far as to declare their intention to ignore the Court’s ruling in Bavli, which they view as an illegitimate intrusion into their protected jurisdictional sphere. Based on its landmark decision in Bavli, the SCI went on to rule in Katz (1996) that the rabbinical courts were not authorized to excommunicate or ostracize an individual who refused to submit to the adjudication of a rabbinical court in a civil matter. The majority opinion stated that since the rabbinical court system was a public organ that existed by force of law and drew its authority from the law, it could only exercise those prerogatives vested in it by law.8 A year later, the Court overturned a rabbinical court decision that held that a divorced father who had become religious was entitled to decide where his children would be educated, even though his wife, who remained secular, had been granted custody of the children.9 In 1998, the Court overturned yet another rabbinical court decision that had forced a divorcee to send her son to a religious school at the demand of her ex-husband.10 In a

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similar spirit, the Court held in March 2001 that the rabbinical courts were not authorized to rule on a request by a man to prohibit his ex-wife from letting their children spend time with her lesbian partner.11 In 2002, the SCI went on to overturn two rulings of the Great Rabbinical Court that gave undue preference to religious rules over general law when determining the distribution of property between sides in personal status disputes.12 Yet another illustration of the wholesale judicialization of the secular-religious cleavage in post-1992 Israel, and the anti-Orthodox impulse that lies at the heart of this process, can be seen in the Women of the Wall affair. The Women of the Wall is a group of observant Jewish women who pray together in a minyan—a religious quorum traditionally reserved for men. This form of worship is not acceptable to ultra-orthodox Jews when practiced by women. It was therefore prohibited by the “Rabbi of the Wall,” a state-nominated official authorized to regulate the prayer arrangements concerning Jews at the Western Wall. In 1994, after several years of political deliberation had failed to yield a solution to the problem of women’s prayer rights at the Western Wall, the Court was called upon to resolve the dispute. In its first ruling on this matter, the Court held that when the principle of gender equality came into direct conflict with the religious beliefs of some groups (as in this case), preference should be given to the religious groups in order to avoid scenes of confrontation at the Western Wall, a holy site and a highly volatile political area.13 However, the Court also urged the government to find a fair solution to the problem—one that would balance religious-based accommodations with women’s rights to equality. A government committee was set up to find such a solution, but it failed to reach an agreement that was acceptable to the parties involved. The Women of the Wall then returned to the Court to reassert their prayer rights based on the equality principle. This time, given the failure to achieve a negotiated settlement in good faith, the Court reversed its original decision and ruled in favor of the Women of the Wall.14 Given that prior to this decision the rules excluded women (Orthodox or otherwise) from conducting minyan prayer services at the wall, the government was ordered to make the technical arrangements that would enable the women to pray as they wished while minimizing the disturbance to other worshippers. Following a government appeal, an extended panel of nine judges revised the ruling yet again in early 2003, instructing the government to designate the adjacent Robinson’s Arch area of the wall plaza for women’s prayer. In another historic decision, released in December 1998, the SCI harshly

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criticized (based on the constitutional principle of equality as well as fundamental principles of administrative law) the validity of a fifty-year-old arrangement under which Orthodox yeshiva students had received draft deferments.15 According to long-standing practice, deferments had been decided solely by the Defense Minister. A rare, expanded panel of eleven justices handed the matter to the Knesset, ordering it to create legislation within a year to replace the existing system, which was based on ministerial decrees rather than on primary legislation. Following this decision, a public committee was appointed to propose amendments to the draft-deferments arrangement that would be acceptable to all the relevant parties. Following two extensions granted by the Court, the committee published its final recommendations for modest revisions to the traditional draft-deferments arrangement. These were endorsed by the government and enacted as an interim law in 2000. The new law (which still awards fairly broad draft exemptions to ultra-Orthodox Jews) barely survived constitutional scrutiny in early 2002 and was saved primarily because of its temporary standing. In 2002, the Knesset granted permanent status to the interim law, effectively overriding the Court’s 1998 ruling. In any event, given the perennial inability, or unwillingness, of Israel’s political elites to reach a consensus and the availability of a constitutional framework that encourages deference to the judiciary, it is highly unlikely that any new arrangement reached through legislative means will go unchallenged in the courts. Arguably the clearest example of the SCI’s deep entanglement with formative questions of collective identity is its recent spate of rulings concerning just who is a Jew and who qualifies for the right to return to Israel.16 As explained earlier, the Orthodox stream of Judaism has been the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near monopoly over the supply of public religious services as well as to impose rigid standards on the process of determining who is defined as a Jew. This issue has crucial symbolic and practical implications as, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the immediate right to full citizenship. Non-Jewish immigrants are not entitled to these benefits. Since being Jewish is sufficient to qualify for citizenship, the state’s self-definition as a Jewish state is inextricably caught up with defining who is a Jew. As in the case of draft deferral, the growing political deference to the judiciary soon brought the question to the SCI. In 1989, when the constitutional

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revolution initiative was in its formative stages, the Court held that for purposes of immigration, any person who converted to Judaism outside Israel, whether under the auspices of an Orthodox, Conservative, or Reform religious institution, was automatically entitled to all the rights of an oleh (Jewish immigrant), as stated in the Law of Return and the Citizenship Law.17 In 1995, the Court was once again drawn into the muddy waters of identity politics. This time, the question before the Court was whether a non-Jewish person who underwent non-Orthodox conversion in Israel was entitled to automatic citizenship based on the right of return. The Court avoided giving a clear answer while explicitly reaffirming its 1989 ruling validating non-Orthodox conversions made abroad.18 Following this ruling, an increasing number of non-Jewish persons residing in Israel (primarily foreign workers and non-Jewish immigrants from the former Soviet Union) went abroad to pursue non-Orthodox conversion in order to claim the benefits awarded by the state to new immigrants recognized as Jews. In response, the Ministry of the Interior (controlled by the ultra-Orthodox Shas party) renewed its refusal to recognize Reform and Conservative conversions to Judaism made abroad. In November 1999, the Court revisited the issue by stating that if the involved parties had failed to reach a settlement by April 2000, an expanded panel of eleven judges would address the conversion issue soon thereafter. No agreeable compromise was reached by the deadline, and the Court resumed its deliberation on the issue later that year. The judicialization of the conversion question culminated in early 2002 with the Court’s historic decision to recognize non-Orthodox conversions to Judaism performed both in Israel and abroad.19 In spite of the judges’ continuous attempts to portray the judgment’s applicability as limited only to the specific group of petitioners (instead of an across-the-board legitimization of non-Orthodox conversions), the ruling has been perceived by the Israeli public as a significant step toward the ultimate legitimization of non-Orthodox conversions and therefore as one of most glaring examples of the Court’s anti-Orthodox line of adjudication. Just as the intrinsic tension created by Israel’s simultaneous commitment to particularistic and cosmopolitan values has troubled the Israeli polity for decades, the struggle between anglophone and francophone Canadians over the status of French language and culture and the question of the Canadian polity and Quebec’s place in it have been the most fraught issues on Canada’s public agenda since the inception of the Canadian confederation in 1867. The controversy intensified with the “Quiet Revolution” and the rise

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of Quebec nationalism in the 1960s. Since the enactment of the Constitution Act 1982, the Supreme Court of Canada has become one of the most important decision-making bodies with regard to the battle over French Canadians’ demands for greater political, cultural, and linguistic autonomy. In nearly all of its important rulings on these matters, the SCC has sided with the policy preferences of the federal government. Consider the following examples. In the Patriation Reference (1981) the SCC held that although a constitutional convention requiring provincial approval for any constitutional overhaul did exist, the federal government could still unilaterally initiate a major constitutional reform because the provincial consent requirement was not formally entrenched in any constitutional provision.20 A year later, the Court held in the Quebec Veto Reference that there was no constitutional convention requiring unanimous provincial consent or awarding Quebec a veto power.21 The Court also rejected Quebec’s claim to a special veto power based on the “distinct society” and the “two founding peoples” arguments.22 In spite of this ruling, Quebec continued to maintain that its legislature had a right to veto constitutional provisions. Drawing primarily on this perennial bone of contention, Quebec remains the only Canadian province that has not endorsed the constitutional arrangement of 1982. The SCC’s antisecessionist impulse did not end with the Quebec Veto Reference. Two years after the adoption of the Charter of Rights and Freedoms, the Court ruled in Quebec Protestant School Board (1984) that the education provisions of Quebec’s Bill 101 (requiring that public education in Quebec be in French only) contradicted section 23 of the Charter and should therefore be struck down.23 This ruling echoed the Court’s pre-Charter ruling in the Blaikie cases (1979–1981), where it upheld the federal bilingualism policy by determining that the Quebec National Assembly’s production of only unofficial English translations of its enactments did not meet the requirements of section 133 of the Constitution Act 1867.24 In the spirit of the Quebec Protestant School Board case,25 the Court went on in 1988 to rule that the provisions of Quebec’s Bill 101 that required all public signs and advertisements to be in French violated only the Charter’s freedom of expression guarantee.26 It also held that the blanket use of an override declaration by the Quebec government (Bill 178) was an improper and invalid application of the Charter’s override clause. The Court’s support of anglophone elite political sentiment regarding fundamental nation-building questions has not been confined to the struggles

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generated by Quebec’s separatist aspirations. It extends to unequivocal acceptance of the federal government’s official bilingualism policy. Appropriate recognition of Canada’s two major linguistic communities has been a matter of crucial importance at every stage of Canadian constitutional development and rights discourse. Accordingly, language rights in Canada are protected by section 133 of the Constitution Act 1867 and by sections 16–23 of the Charter. The introduction of the latter provisions marked a fairly expansive conceptualization of Canadian citizenship entitlements for members of French and English minority-language communities. This pattern is reflected in the amendment provisions of the Constitution Act 1982, which require unanimous provincial support for changes to the constitution with respect to language. Some would even argue that the very enactment of these language-rights provisions was part of the Canadian federal government’s constitutional battle against the separatist movement in Quebec in general and against the contentious Bill 101 in particular. The SCC has played a key role in promoting these policy preferences, from its reaffirmation of the privileges of Roman Catholic schools protected under section 93 of the Constitution Act 1867 to its keen promotion of dual-language school systems for francophones and anglophones throughout the country. In the 1985 Manitoba Language Rights Reference, for example, the SCC declared unconstitutional an 1890 Manitoba act that only English could be the language of the legislature and the courts in that province, further stipulating that Manitoba be granted five years “to translate, re-enact, and publish” all its legislation into French as well as English.27 In a similar vein, in its landmark decision in Mahe v. Alberta, the Court held that in accordance with section 23 of the Charter, the Alberta provincial government was responsible for actively providing and funding educational facilities and intensive instruction in French for the francophone minority in that province, as well as for ensuring proportional representation of French-speaking parents in the management of their children’s French-language education.28 In its recent decision in Aresenault-Cameron v. Prince Edward Island, the Court reaffirmed its decision in Mahe, holding that section 23 mandates that provincial governments do whatever is practically possible to preserve and promote minority-language education.29 In this case, francophone children in a town in Prince Edward Island had to endure a daily two-hour ride to and from a French school in another town in order to receive education in French. The SCI held that the imposition of this commute, instead of funding on-site schooling in French, constituted an unreasonable constraint upon the children’s parents’ section 23 rights.

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But the most dramatic step (so far) in the transformation of the Canadian judiciary into a major forum for dealing with issues concerning the rights and status of French Canadians came with the recent referral of the Quebec secession question to the SCC. Following a slim 50.6 percent to 49.4 percent loss by the Quebecois secessionist movement in the 1995 referendum, the Court was asked by the federal government, using the reference procedure, to determine whether a hypothetical unilateral secession declaration by the Quebec government would be constitutional.30 In the reference submitted to the SCC, three specific questions were asked: (1) Under the Constitution of Canada, can the National Assembly, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally? (2) Does international law give the National Assembly, legislature, or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? (In other words, is there a right to self-determination in international law that applies to Quebec?) and (3) If there is a conflict between international law and the Canadian Constitution on the secession of Quebec, which takes precedence? In a widely publicized ruling in August 1998, the SCC held that unilateral secession would be an unconstitutional act under both domestic and international law and that a majority vote in Quebec was not sufficient to allow the French-speaking province to separate legally from the rest of Canada. However, the Court also noted that if and when secession was approved by a clear majority of people in Quebec voting in a referendum on a clear question, the parties involved should then negotiate the terms of the subsequent break-up in good faith. As for the question of unilateral secession under Canadian law, the Court’s ruling provided both federalists and separatists with congenial answers. In strictly legal terms, the Court ruled that the secession of Quebec would involve a major change to the structure of Canada that would require an amendment to the Constitution. This in turn would require negotiations between the involved parties. On the normative level, the Court stated that the Canadian Constitution was based on four equally significant underlying principles: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. None of these principles trumped any other. Hence, even a majority vote (that is, strict adherence to the fundamental democratic principle of majority rule) would not entitle Quebec to secede unilaterally. However, the Court stated that if a clear majority of Quebecois voted “oui/yes” to an unambiguous question on Quebec separation, this would “confer legitimacy on the efforts of the government of Quebec to initiate the Constitution’s amendment process in or-

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der to secede by constitutional means.” Such “a clear majority on a clear question” would require the federal government to negotiate in good faith with Quebec in order to reach an agreement on the terms of separation. As for international law, the Court’s answer was much shorter and less ambiguous: it found that although the right of self-determination of peoples did exist in international law, it did not apply to Quebec. While avoiding the contentious question of whether the Quebec population or part of it constituted a “people” as understood in international law, the Court held that the right to unilateral secession did not apply to Quebec, as it was clear that Quebecois were not being denied their rightful ability to pursue their “political, economic, social, and cultural development within the framework of an existing state,” nor were they a colonized or oppressed people. The government of Quebec responded to the judgment by enacting a bill stating that if a majority of “50 percent plus one” of those Quebecois who cast ballots in a provincial referendum on the future of Quebec supported the idea of secession, this would satisfy the requirement for a “a clear majority” set by the Court decision. The federal government, on its part, responded in late 1999 by proposing the “Clarity Bill,” which was enacted into law in June 2000. In a nutshell, this states that only “a clear majority on a clear question” would require the federal government to negotiate the terms of separation with Quebec; that given the importance of the question at stake, the term “clear majority” should mean more than “50 percent plus one”; and that the federal government should reserve the right to determine whether the question posed by the Quebec government in any future referendum on this issue met the criteria of a “clear question.” Without the political and cultural context to make sense of these events and rulings, the non-Canadian reader may find this chain of judicial events regarding the status of Quebec somewhat perplexing. However, one thing is indisputable: over the past twenty years, the SCC has become one of the most important public forums (if not the most important one) for dealing with the highly contentious issue of Quebec’s status and its future relationship with the rest of Canada. Drawing on the new constitutional framework established by the Constitution Act 1982 and the SCC’s willingness (if not eagerness) to play a central role in the Quebec saga, the involved parties (primarily the federalists) were able to translate the question of Quebec’s political status—arguably the most fundamental question pertaining to the very being and raison d’être of the Canadian confederation in its current form—into a judicial one.

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Alternatively, we can consider the South African Constitutional Court’s deep involvement in the creation of the new South Africa. Until the late 1980s, the South African judiciary had been largely ineffectual in its halfhearted (at best) efforts to oppose the horrors of the apartheid regime. However, since the termination of apartheid in South Africa and the establishment of the new political order, and especially since the inauguration of the Constitutional Court in February 1995, the South African judiciary has become deeply involved in matters arising from South Africa’s dark political past as well as issues pertaining to its future as a nation. Immediately following its establishment, the Constitutional Court became the major forum for settling disputes over the national-provincial division of legislative powers and appropriate limits on the power of the President. In its first two rulings on the former issue—the Western Cape decision and the KwaZulu-Natal decision (both released within a year of the Constitutional Court’s inauguration)—the Court had to deal with the distribution of political jurisdiction in the new South Africa. It maneuvered expertly between the desire to enhance the public profile of the democratically elected, ANC-controlled central government on the one hand, and the wish to expand the powers of provincial legislatures in order to move to a nonracial system of local government on the other.31 Beyond the important ramifications for the distribution of legislative powers, these two decisions were crucial because they dealt with disputes resulting in part from partisan conflicts—namely the political tension between an ANC-controlled national government and two provincial governments controlled by other political parties. Primarily due to the vested party political interests in the situation, the Court acted as a broker in a series of political disputes over the division of powers between these two provinces and the central government.32 While various interested parties in South Africa have transferred other major political controversies concerning national-provincial division of legislative powers to the Constitutional Court, a brief discussion of one such case (dealing with the regulation of trade and commerce) may help to illustrate the transformation of South Africa’s political and constitutional discourse in the postconstitutionalization era. In the Liquor Bill Case (1999), President Nelson Mandela referred the Liquor Bill passed by the National Assembly to the Constitutional Court, requesting it to consider the appropriate national-provincial legislative powers in the area of liquor licensing.33 In doing so, the President invoked for the first time his power under the final Constitution to refer a bill to the Constitutional Court if he had reservations

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about its constitutionality. The recalcitrant province of the Western Cape argued before the Court that the bill’s comprehensive regulation of the manufacture, distribution, and sale of liquor through a national system of registration intruded into the exclusive authority of the provinces over liquor licensing. The Minister of Trade and Industry asserted, however, that the bill aimed to make the liquor industry more accessible to this historically disenfranchised group by breaking down the historical concentration of the industry in the hands of the few. The minister argued that these issues were national in scope and that any intervention into an exclusive provincial power was incidental to achieving the overall effect of the bill. The Court held that the provinces’ exclusive legislative competence with regard to “liquor licensing” was narrower in its scope than the national government’s concurrent power to regulate “trade” and “industrial promotion.”34 The Court also stated that the bill’s prohibition of cross-holdings, as well as the national system of registration for producers and wholesalers, fell within the national legislature’s competence to regulate trade.35 The Liquor Bill affair, as well as the more recent Land Registration matter36 and other similar cases, clearly illustrate the impact of the new constitutional framework on the scope of judicial involvement in national-level policy-making in present-day South Africa. A case may reach the SACC either as an appeal transferred from another court or as the result of a direct approach to the Court, primarily through the use of the reference procedure by the President, the National Assembly, the Senate, or the provincial legislatures. Before 1995 it would have been both unthinkable and impossible to submit national and provincial statutes dealing with the division of legislative powers to the courts to examine their constitutionality. Another unique path by which the SACC may be called on to establish its authority over the political sphere is through the certification of constitutional texts. South Africa’s final Constitution states that after passing a new constitutional text, the Constitutional Assembly must submit that text to the Court for certification before it enters into effect. Given the formative stage of the new South African constitutional order, the SACC’s involvement since 1995 in separation of powers issues is not surprising. However, the Court’s profound (and invited) involvement in the very certification of the final national Constitution has no equivalent in the history of modern constitutionalism.37 After a long and arduous political battle, in May 1996 the Constitutional Assembly voted in favor of a new constitutional text, which was to form the

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basis of the final Constitution. Once adopted by the Constitutional Assembly, the new text was submitted to the SACC for certification to ensure that it complied with the constitutional principles agreed upon in multiparty negotiations in 1993 and contained in Schedule 4 of the interim Constitution. With the exception of the African National Congress (ANC) and the Pan Africanist Congress (PAC), all the political parties represented in the National Assembly lodged objections to certification with the Court. In addition, eighty-four private interveners objected. The political parties and twenty-seven of the private parties were given the opportunity to make oral submissions to the Court during a nine-day certification hearing in July 1996. In its landmark decision, delivered in September 1996, the Court identified nine elements of the new text that failed to comply with certain constitutional principles. The draft Constitution was sent back to the Constitutional Assembly so that certain provisions could be reworked. The provisions requiring revision included a section that failed to recognize the right of individual employers to engage in collective bargaining; a section that unlawfully shielded an ordinary statute from constitutional review; a section that failed to recognize the special procedures necessary for amending the Constitution and that failed to afford adequate protection (in the form of entrenchment) to the Bill of Rights; a section that failed to provide for and safeguard the independence and impartiality of the Public Prosecutor and other public organs; and a set of provisions that failed to provide a framework for the structures, fiscal powers, and functions of local government and that did not provide that formal legislative procedure should be adhered to by local legislatures. The various arguments underpinning the SACC’s decision to require revisions to the draft Constitution illustrate the scope of the Court’s monitoring of nearly every aspect of the political sphere in the new South Africa. For example, the first certification judgment ensured that it would be even more difficult for future governments to amend the final Constitution, and the Bill of Rights in particular, and that no specific pieces of legislation could be placed beyond constitutional scrutiny by the Court. As several scholars have noted, even the question of reduced provincial powers, which was one of the most politically controversial topics canvassed at the certification hearings, was ultimately resolved by the court into an issue of judicial power rather than one of national-provincial distribution of powers. The Court urged the Constitutional Assembly to remove the presumption in favor of

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national legislation (“residual legislative power” and the doctrine of “paramountcy”) and to return to the interim Constitution’s approach to nationalprovincial conflicts of law—an approach that essentially left it to the courts to develop principles for determining the resolutions of such conflicts.38 Following the refusal of the Court to certify the draft constitution, the Constitutional Assembly was recalled in an attempt to pass an amended text that would satisfy the Constitutional Principles. In October 1996, barely a month after the first certification judgment was handed down, the Constitutional Assembly passed an amended text addressing all of the concerns raised by the Constitutional Court in the first certification hearing. In December 1996, the Court approved the amended text. A few observations should be made regarding this certification saga. First, just as the Quebec Secession Reference was the first instance of a democratic country testing in advance the legal terms of its own dissolution, the initial certification judgment in South Africa was the first court refusal of acceptance of a national constitutional text drafted by a representative constitution-making body. Second, the initial certification hearing took place less than eighteen months after the inauguration of the SACC. Its relative youth notwithstanding, none of the political actors and parties questioned the legitimacy of either the certification process itself or the particular decisions taken by the Court during that process. By the end of the certification process, the transformation of the Court into a pivotal decision-maker in constituting the new South Africa was complete. From a normative perspective, the deliberate transfer of foundational nation-building questions to the judiciary is troubling. The transfer to the judiciary of political controversies such as the struggle over the nature of Canada as a confederation of two founding peoples, Israel’s wrestling with the question “Who is a Jew?” and its status as a Jewish and democratic state, or the transition to democracy in South Africa may be justified on consequentialist grounds (consociational or “national healing” considerations, for instance). However, the practice still raises concerns. Informed public deliberation and citizen participation are at the heart of democratic governance. When contentious political questions are transformed into legal questions, however, the bulk of the citizenry (who are neither judges nor lawyers) are deprived of the opportunity to shape public policy outcomes in a meaningful way and are forced to relinquish their responsibility for working out reasonable and mutually acceptable resolutions of the issues that divide them. The contours of political debate are conse-

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quently shaped by a narrow class of professionals—usually lawyers, academics, and judges, all employing technical jargon and legalistic reasoning— instead of through open public deliberation framed by the people and their representatives. Put differently, the transfer of fundamental questions of collective identity from the political sphere to the courts favors those who have specific professional knowledge and better access to and influence upon the legal system. “They the Jurists” are granted an elevated status in determining policy outcomes at the expense of “We the People,” laypersons who make up the vast majority of the populace. Such transfer represents a large-scale abrogation of political responsibility, if not outright abdication of power, by legislatures whose primary task is to make political decisions for which they are accountable to their constituents. Therefore, an excessive reliance on courts to determine contentious issues such as a polity’s raison d’être may undermine the very essence of democratic politics as an enterprise involving a relatively open, at times controversial, but arguably informed and accountable deliberation by elected representatives. After all, the primary function of legislatures should be to confront and resolve problems, not to pass them on to others. By transferring political decision-making authority to the judiciary, these legislatures take advantage of (or worse, actively support the establishment and maintenance of) a strong judiciary to avoid difficult, unpopular, or unwanted outcomes. Legislatures thus grant priority to their short-term political interests at the expense of fulfilling the public task they were elected to do—make principled, well-informed, and accountable decisions. Moreover, the unprecedented involvement of national high courts in formative nation-building processes is difficult to reconcile with some of the widely accepted fundamental principles of canonical constitutional theory. In The Least Dangerous Branch, Alexander Bickel argues in defense of judicial review by suggesting that governments should serve not only what people conceive from time to time to be their immediate material needs, but also certain enduring values.39 Legislative assemblies often fail to uphold this function because the pressure for immediate results is powerful and “men will ordinarily prefer to act on expediency rather than take the long view.” The proven weakness of legislatures, Bickel argues, relates not only to their lack of respect for the rule of established principles, but also to their failure to refer to and respect a coherent body of principled rules. The courts, by contrast, have distinct capacities for dealing with matters of principle. Judges, according to Bickel, “have, or should have, the leisure, the training,

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and the insulation to follow the ways of the scholar in pursuing the ends of government.” This “is crucial in sorting out the enduring values of a society, and it is not something that institutions can do well occasionally, while operating for the most part with a different set of gears. It calls for a habit of mind, and for undeviating institutional customs.” Bickel thus justifies judicial review as “the principled process of enunciating and applying certain enduring values.”40 Questions as to what constitutes “enduring” or “fundamental values” and “the background political morality of society,” and who should decide them, however, are not easily answered.41 There is no consensus as to whether such values exist at all, what these values are if they do exist, and whether they are indeed worthy of further preservation. In fact, fundamental political controversies, such as the struggle over the nature of Canada as a confederation of two founding peoples, Israel’s definition of itself as a Jewish and democratic state, and the fight over appropriate reparative justice in postapartheid South Africa, are all battles over just what qualities should be recognized as enduring values that constitute the body politic and whether these values ought to be preserved. It is hard to see how judges can deal with such open-ended struggles concerning the very definition and scope of a given polity’s constitutive values while employing preexisting sets of (inherently judicially created) supposedly enduring values. Moreover, the more often national high courts deal with fundamental controversies over such values, the less convincing the rationale behind Bickel’s “enduring values” approach becomes. In Taking Rights Seriously, Ronald Dworkin admits that in order to determine the “enduring values” of their particular societies, judges inevitably have to make value choices.42 Although they might conscientiously seek to decide on the basis of objective principles, it is difficult to see how they could make a determination about enduring values without personal preferences and political opinions coming into play. It is therefore hard to understand how judges would be able to base their decisions on principles that are qualitatively different from principles that are supposed to characterize the legislative process. Perhaps, then, these decisions might be better determined by the legislature. Nor does John Hart Ely’s theory of judicial review as a means of policing the process of representation rescue the expansion of judicial review from critique on democratic grounds. Ely’s “participation-oriented, representation-reinforcing approach to judicial review” endorses an avowedly second-

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ary and supportive role for the court, which, “unlike its rival value-protecting approach, is not inconsistent with, but on the contrary, . . . entirely supportive of, the underlying premises of representative democracy.”43 According to Ely, the court would not be concerned with rejecting laws with which it disagreed, but would be justified in striking down legislation only when the democratic process itself was malfunctioning. Courts, according to this process-centered justification of judicial review, should promote “the achievement of a political process open to all on an equal basis and a consequent enforcement of the representative’s duty of equal concern and respect to minorities and majorities alike.”44 The proper scope of judicial review should therefore be confined to procedural questions of participation and representation. Judicial inquiries into the substantive merits of impugned political decisions should be avoided, primarily because they might impose the normative or prescriptive views of appointed and nonaccountable judges on citizens.45 Democracy requires that the choice of substantive political values be made by elected representatives rather than by unelected judges. As such, substantive political choices should be left to elected and accountable officials. Whereas the U.S. Supreme Court’s decision in Bush v. Gore, for example, can be seen as fulfilling Ely’s criteria, as it is a decision dealing with procedural aspects of democracy (for example, due process and standardized vote counting), the SCC’s ruling in the Quebec Secession Reference and the South African Constitutional Court’s Constitutional certification decisions clearly fall outside of these parameters. All of these decisions represented clear manifestations of substantive political choices by judges. In fact, most cases that would fall within the judicialization of disputes over electoral procedures and outcomes would appear to fit Ely’s process-centered justification of confined judicial review. In contrast, most instances of deep judicial entanglement in nation-building processes and restorative justice schemes fall far beyond the scope and nature of judicial activism permitted by Ely’s processoriented justifications. Likewise, the global transition to juristocracy questions the soundness of Bruce Ackerman’s dualist conception of lawmaking as justifying judicial review.46 Unlike ordinary lawmaking, argues Ackerman, constitutional (or higher) lawmaking is the legitimate outcome of a large-scale political mobilization of vast numbers of citizens over a substantial period of time. According to Ackerman, three periods in the history of the United States meet the criteria for such constitutional moments: the foundation of the coun-

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try; the Civil War; and the New Deal. By scrutinizing ordinary legislation, courts protect, not erode, the true democratic will of the people as expressed through those rare historic moments of higher constitutional lawmaking. If constitutional norms, not ordinary law, are indeed a genuine expression of mass popular will, ordinary law cannot legitimately contradict or override it. However, as several scholars have argued, Ackerman’s distinction between constitutional politics and ordinary politics is dubious.47 First, it is questionable whether the constitutional revisions adopted through what Ackerman describes as constitutional moments indeed reflect the popular will of vast numbers of citizens over a substantial period of time. As the history of modern constitutionalism tells us, we have every good reason to be skeptical about the practical ability of the powerless and the disenfranchised to shape constitutional lawmaking in any meaningful way. Second, it is unclear whether landmark political judgments such as the Quebec Secession Reference reflect or create constitutional moments. But perhaps more important, not all constitutional revolutions under the new constitutionalism meet Ackerman’s definition of genuine historical moments in which sheer popular will brought about higher lawmaking. Whereas the constitutional revolution in South Africa or in the former Eastern Bloc may be portrayed as meeting Ackerman’s standards, it is very much in doubt to what extent the constitutionalization of rights and the establishment of judicial review in Canada or Israel reflect such authentic constitutional moments. And if they do not, the entire basis of the dualist lawmaking justification of judicial review collapses.

Judicialization of Fundamental Restorative Justice Dilemmas The wave of judicial activism that has swept over the world in the past few decades has not bypassed one of the most contentious issues a democratic polity ought to address—that of coming to terms with its own (often not so admirable) past. The increasingly common transfer of fundamental moral and political dilemmas concerning extreme injustices and human rights abuses committed against historically disenfranchised groups from the political sphere to the courts involves several subcategories that reflect different notions of restorative justice. These include persecution of individuals deemed responsible for past wrongdoing; quasi-judicial commissions of inquiry; equalization and affirmative action policies; and constitutional recog-

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nition of the cultural and material rights of indigenous populations. Concrete examples include the judicialization of restorative justice in the wake of the large-scale atrocities of the apartheid era in South Africa (for example, through the establishment of the quasi-judicial Truth and Reconciliation Commission and the corresponding 1995 AZAPO ruling); the Pinochet affair as the epitome of the ongoing judicialization of restorative justice in Chile and other postauthoritarian Latin American countries; the exercise of universal criminal jurisdiction against war crimes, crimes against humanity, and genocide in the courts of countries such as Spain or Belgium; the major role played by the newly established constitutional courts in post-communist Europe in confronting their respective countries’ past during World War II and the communist era; and the ever-accelerating judicialization of the battle over the status of indigenous peoples in “settler societies” such as Canada, Australia, and New Zealand. The question of restorative justice in post-apartheid South Africa, for example, presents a set of moral and practical dilemmas that on the face of it ought to be resolved in the political rather than in the judicial sphere. Nonetheless, the constitutional revolution of the mid-1990s, combined with a political environment conducive to judicial activism, facilitated the transfer of the difficult questions of restorative justice and reconciliation from majoritarian decision-making bodies to the courts. Consequently, the newly established Constitutional Court, which unlike its Canadian and Israeli counterparts has not yet developed a broad, uncontested institutional legitimacy, has become a major site for dealing with the dilemma of restorative justice in the post-apartheid era. Ironically, this transfer has turned the South African judiciary, with its history of almost unbroken silence during the apartheid years, into one of the primary forums for promoting the socalled national healing process.48 Consider, for example, the AZAPO case.49 The background is well known. In 1995, following two years of negotiations between the ANC and the National Party, the South African Parliament passed the Promotion of National Unity and Reconciliation Act (PNURA). This reflected a policy of national healing through reconciliation and established the Truth and Reconciliation Commission (TRC), which was designed to establish, through hearings and investigations, as full a picture as possible of the gross violations of human rights committed during the apartheid era. In order to fulfill its mission, the TRC was awarded the authority to grant amnesty to officials and agents of the apartheid regime who made full disclosure of the crimes they had com-

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mitted against those perceived as appropriate racial or political targets during the apartheid era. The Azanian Peoples Organization (AZAPO) and the relatives of some of apartheid’s best-known martyrs—Steve Biko, Griffith Mxenge, and Fabian Ribeiro—sought to set aside the conditional amnesty procedure established by the PNURA on the grounds that it was inconsistent with section 22 of the interim Constitution, which provided that every person should have the right to have justiciable disputes settled by a court of law. In an eloquent judgment released in July 1996, the SACC acknowledged that the conditional amnesty procedure established by the PNURA limited the applicants’ section 22 rights. However, citing the interim Constitution’s “limitation clause,” the Court ruled that the violation of this right was permissible and justified by the epilogue to the Constitution, which called for “national unity and reconciliation.” Specifically, the Court ruled that the proposed conditional amnesty for criminal, civil, or international liability was permitted by the epilogue, because without it there would be no incentive for offenders to disclose the truth about past atrocities. Furthermore, the Court noted that such amnesties were a crucial component of the negotiated settlement itself, without which the interim Constitution would not have come into being. The political and legal ramifications of the AZAPO decision were far-reaching. The TRC conducted a thorough quasi-legal investigation into the mass atrocities of the apartheid era and published its findings in a comprehensive and widely publicized report in 1999. Throughout its deliberations, the TRC drew upon the “amnesty for confession” formula that had been given a green light by the Court in AZAPO. Beyond the implications of the controversial decision in AZAPO, this case clearly illustrates how moral and political quandaries pertaining to restorative justice in the wake of large-scale human rights abuses can be turned into judicial questions. As in the question of political self-determination and secession in the case of the ongoing battle between Quebec and the rest of Canada and the question of secularism versus religiosity as the predominant feature of a polity in the case of Israel, so the problem of restorative justice in the wake of mass atrocities is, first and foremost, a deep moral and political dilemma, not a judicial one. Nevertheless, a combination of institutional factors (such as the presence of a constitutional catalogue of rights and the availability of active judicial review practices) and the active or tacit support of political power-holders and judicial elites have helped turn these countries’ national high courts into the princi-

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pal arenas in which these fundamentally political and moral questions are contemplated. Another manifestation of this trend can be seen in the judicialization of the struggle over the status of indigenous peoples in settler societies such as Canada and New Zealand. Consider, for example, the comprehensive adjudication dealing with the most fraught issue on New Zealand’s public agenda: the recognition and application of Maori rights. Over the past few decades, the Maori have become increasingly outspoken in their search for cultural recognition and equal entitlement to public goods. Specifically, there has been a revival of the public debate over the status of the Treaty of Waitangi 1840.50 The establishment of the Waitangi Tribunal in 1975, and the expansion in 1985 of the tribunal’s authority to hear Maori grievances pertaining to the post-1840 era (rather than grievances pertaining to the post-1975 period only, as permitted by the Treaty of Waitangi Act 1975), brought about a slew of claims by Maori groups concerning apparent violations of their economic and cultural rights. Following the enactment of the NZBORA in 1990, the New Zealand Court of Appeal has become a central forum for dealing with these claims. In a series of landmark judgments since 1990 concerning Maori language and cultural rights, based both on NZBORA provisions and on the Treaty of Waitangi, the NZCA ruled in the Radio Frequencies case that the promotion of Maori language and culture was a mandatory and relevant consideration in the decision to allocate radio frequencies and therefore that communities were entitled to a proportional share of radio broadcasting frequencies allocated by the state.51 In the Broadcasting Assets case, however, the Court ruled that the Minister of Communication’s decision to allocate only a few radio frequencies to Maori radio stations, following his consideration of the principle set in Radio Frequencies, was reasonable.52 According to the Court, the privatization of broadcasting assets, including Radio New Zealand, did not contravene the principles of the NZBORA and the Treaty of Waitangi, and public radio was not essential for the preservation of Maori language rights. It concluded that the government was not constitutionally obliged to support the status of the Maori language by maintaining its ownership of commercial radio assets.53 On appeal, the Judicial Committee of Privy Council affirmed the Court of Appeal decision.54 In other NZBORA and Treaty of Waitangi–based landmark decisions, the NZCA found in the Maori Electoral Option case that the government had acted reasonably in its management of the Maori electoral option under the new

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electoral system, whereby Maori electors were to be given notice of their entitlement to be registered on a Maori electoral roll.55 And in the Whale-Watch case, the Court also held that the Maori were entitled to “a reasonable degree of preference” in matters touching their ancestral lands.56 It also instructed that fishery assets worth NZ$300 million should be allocated by the Treaty of Waitangi Fisheries Commission on the basis of iwi (tribe) size, as the populous northern tribes demanded, and not on the basis of the length of coastline and traditional fishing grounds, as the South Island’s Ngai Tahu tribe (one of New Zealand’s smallest Maori tribes) demanded.57 As one last example of the judicialization of the question of Maori rights, the cases sparked by the Maori fisheries allocation issue are worth mentioning. After a period of negotiation and litigation, the government settled Maori claims to commercial fisheries by enacting the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. According to this settlement, certain assets, comprising fishing quotas and cash already transferred to the Treaty of Waitangi Fisheries Commission, were required to be distributed to the Maori. The preamble to the act stated that the Crown had an obligation pursuant to the Treaty of Waitangi to confirm and guarantee to chiefs, tribes, and individual Maori full, exclusive, and undisturbed possession of their fisheries. However, the act did not define who is a Maori (for purposes of redistributing the assets allocated by the act), and this fundamental question soon reached New Zealand’s judiciary. In its first judgment, the NZCA ruled that the distribution of assets to the Maori people through the Treaty of Waitangi Fisheries Commission unjustly bypassed most urban Maori or those Maori lacking tribal affiliation, as it depended entirely on a tribal definition of Maori as iwi—people who live according to the traditional Maori lifestyle (the Maori Fisheries Allocation I case).58 The Court declared in this landmark decision that, in spite of having no coastline, urban Maori constituted an iwi (tribe) and were therefore directly entitled to a share of the fishery assets allocated by the Treaty of Waitangi Fisheries Commission. The case was subsequently referred to the Judicial Committee of the Privy Council in London. The latter’s decision, announced in January 1997, overruled the NZCA’s decision and remitted the issue to the New Zealand court system for further deliberation. The High Court in Auckland resumed its deliberations in March 1998, and the Court of Appeal in Wellington took over in August 1999, releasing its final decision in October 1999. In brief, in rehearing the case, the Court had to answer two questions: (1) Does the 1992 settlement require that relevant

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assets be allocated solely to iwi and/or bodies representing iwi? (2) If the answer to the first question is in the affirmative, does iwi mean only traditional Maori tribes? In the longest judgment it ever released, the Court answered the first question in the affirmative, stating that the original intention of the settlement had been to allocate fishing quotas and other assets exclusively to iwi. As for the second question, the Court this time held that the word iwi meant “tribe” in the sense of traditional tribes—a group of Maori people claiming descent from a common ancestor, sharing a common culture, and either living in a specified geographical area or descended from ancestors who lived in that area. The agreement to allocate assets to iwi had therefore meant an allocation exclusively to traditional tribes. Urban Maori and their representative bodies could not claim to be tribes or successors of tribes, and those who participated in the 1992 negotiations had never contemplated making any allocations to urban Maori and their representative bodies.59 Another example of the impact of constitutionalization on the judicialization of fundamental restorative justice dilemmas is the recent wave of adjudication with regard to Canadian First Nations’ rights. The status of First Nation Canadians has been one of the more contentious issues on Canada’s political agenda since the late 1960s. Reaction to and outrage over the government’s assimilationist (and many would argue undignified) policies regarding Canada’s aboriginal population has generated national resistance, violent at times, during the past three decades.60 National bodies such as the Assembly of First Nations maintain a high public profile in their determined struggle to enhance the socioeconomic status of aboriginal peoples and to secure wide public acknowledgment of their cultural rights. As in other settler societies, the calls for recognition for indigenous peoples’ collective rights in Canada have met with fierce objections on the part of right-wing civil libertarians, nonaboriginal landowners, and proponents of assimilationist policies. Questions of collective responsibility and intergenerational justice, the structure of Canadian federalism, and the development and management of natural resources (to name some contested issues) also contribute to the mixed reaction of the federal and provincial governments to aboriginal people’s claims. What is clear, however, is that the Supreme Court of Canada has become the central national arena for dealing with the claims to recognition, land, and political voice by Canada’s indigenous population. The consequences of this judicialization have been a mixed blessing from the perspective of the aboriginal peoples themselves. The rights of aboriginal peoples are formally distinguished from the rights

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protected by the Charter of Rights and Freedoms, which occupy the first 34 sections of the Constitution Act 1982. Section 35 of the act recognizes and affirms “existing” aboriginal and treaty rights, defines aboriginal peoples as including Indians, Inuit, and Metis, and provides that modern land claim agreements are “treaties” within the meaning of this section. Section 35 is therefore the main constitutional source for the protection of the rights of Canada’s indigenous peoples. In a series of section 35–based petitions since the mid-1980s, the SCC has been called on to interpret the somewhat vague wording of this section and has therefore become the most important forum for determining the status, rights, and entitlements of First Nation Canadians. Consider the following examples, which are only a few of the spate of recent landmark rulings by the SCC regarding section 35. In the Sparrow case (1990), the SCC was asked to determine the meaning of the word “existing” in section 35, to set concrete legal tests to establish when an infringement of an existing right had occurred, and to establish when such an infringement might be justified.61 In what has become the most important judgment pertaining to the status of aboriginal peoples’ rights, the SCC ruled that the word “existing” in section 35 meant “unextinguished”—that if a right had been validly extinguished before 1982, it was not protected by section 35. A federal regulatory statute would have the effect of extinguishing aboriginal rights only if its intention to do so was “clear and plain.” In this case, the federal Fisheries Act did not demonstrate a “clear and plain intention to extinguish the Indian aboriginal right to fish.” Therefore, the aboriginal right to fish was an “existing” right within the scope of section 35. In more practical terms, the Court ruled that aboriginals’ right to fish was protected under section 35 of the Charter, but that the scope of this protection should be narrowly defined.62 To receive constitutional protection, an aboriginal right must have existed in 1982, and it must relate to aboriginal practices that were in place at the time of contact between First Nations and European settlers. The SCC added that even when an aboriginal right meets these criteria, a court may still find that government restrictions on it were justified. This means, for example, that commercial fishing rights are not protected in most cases—a fact that has grave implications for the economic well-being of many aboriginal communities in Canada. The SCC’s vital role in translating the various constitutional provisions dealing with aboriginal peoples’ rights into a set of practical guidelines has not been limited to its interpretation of aboriginal peoples’ economic rights.

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In Delgamuukw (1997) it ruled that when aboriginal rights to specific land are infringed (a situation that, given the tough tests set by the Court, should rarely come about), fair compensation by the government would be the appropriate remedy.63 Nonetheless, the practical implications of Delgamuukw remain unclear. While the Court was fairly generous in its interpretation of aboriginal peoples’ title at the declarative level, it has not been determined how this abstract concept of aboriginal title will translate into redistribution of land in practice. More recently, the SCC was called on to interpret the constitutional status of Canada’s indigenous population’s rights to fish and hunt vis-à-vis regulatory provincial and federal laws.64 In Marshall I, for example, the Court found that there was an unjustified infringement by the Crown of an unextinguished Mi’kmaq treaty right to fish for eel for food and to obtain moderate livelihood through trading their catch. In Marshall II, however, the Court reopened the case by drawing on a rarely used procedure, declaring that the outcome of its first judgment could not be generalized to a declaration that licensing restrictions or closed seasons could never be imposed as part of the government’s regulation of aboriginal peoples’ limited commercial right to fish. In September 2003, the SCC released two landmark rulings pertaining to the status of Canada’s Métis population—approximately 300,000 people who have mixed aboriginal and nonaboriginal, primarily French, ancestry, and whose entitlement to aboriginal rights has not been clearly defined under Canada’s Indian Act and other pertinent statutes and constitutional provisions.65 In R. v. Powley, the Court ruled that members of an Ontario Métis community have a full-status “Indian” right to hunt for food. (So-called status Indians are permitted to hunt for food without provincial licenses and out of season.) The ruling is expected to compel the federal government and provincial governments throughout Canada to redefine Métis rights on issues ranging from natural resources to health services and taxation. In the companion case of R. v. Blais, the Court rejected an appeal by a Manitoba Métis, who claimed he had the right to hunt for food under the Natural Resources Transfer Agreement—a Manitoba provincial statute that gave the right to “Indians,” “subject to the continuing right of the Indians to hunt, trap, and fish for food on unoccupied Crown lands.” The Court ruled that the historical context of the treaties the NRTA was based upon suggested that the term “Indians” did not include the Métis. Finally, in Shilling (2002), the SCC upheld a federal court ruling that an aboriginal woman working outside designated aboriginal territory was not

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entitled to tax credits granted to aboriginal people who had significant ties to a given reserve.66 Canadian revenue rules stipulate that Canadian First Nation workers must pay income tax unless their work is closely connected to a given reserve. Rachel Shilling, a member of the Rama Indian band, worked for an aboriginal health center in Toronto. She was hired through an employment agency on a recognized reserve. Although her pay came from a company based on Indian land, she performed all her work in Toronto. Following long-established custom, the SCC gave no reasons for refusing to hear the appeal. The Court’s non-ruling in Shilling has been portrayed by advocates of aboriginal rights as a serious blow to Canada’s growing urban aboriginal community and as an indication of the Court’s support of the Indian reserve system, felt by many to be an outdated vestige of the colonial era. Whereas some of these recently judicialized questions of restorative justice have certain important constitutional aspects, they are neither purely, nor even primarily, legal dilemmas. As such, they ought to be resolved, at least on the level of principle, through public deliberation in the political sphere. Nonetheless, following the constitutional revolutions in South Africa, Canada, and New Zealand, these polities’ national high courts have gradually become major decision-making bodies for dealing with precisely such restorative justice quandaries. Distributive justice questions concerning collective responsibility for crimes against humanity masterminded by political power-holders (and tacitly supported by certain of their subjects) and questions of reconciliation and reparative justice have been framed in terms of constitutional claims for rights and entitlements. As such, these claims have rapidly found their way to the national high courts. Furthermore, as Stuart Scheingold suggests in his classic The Politics of Rights, the “‘myth of rights’ contrasts the openness of judicial proceedings to the secret bargaining of interest group pluralism so as to underscore the integrity and incorruptibility of the judicial process. The aim, of course, is to enhance the attractiveness of legal and constitutional solutions to political problems.”67 Channeling pressures for social justice to courts has a considerable potential to harm reformist social movements by pacifying activists with the illusion of change and by luring resources away from political processes and lobbying strategies through which more substantial change might be achieved. The institutional, pro–status-quo, and inherently pacifying nature of the legal system is especially significant when claims for restorative justice that have potentially revolutionary implications for the redistribution of wealth and power (such as the reconstruction of post-apartheid South Af-

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rica or the struggle over indigenous peoples’ rights in settler societies) are transferred from the potentially open-ended political sphere to the inherently more conservative judicial sphere. After all, the struggle against the apartheid regime, for example, was about more than voting rights and legal segregation—it was also about concrete economic and social inequality. South Africa was not only legally racist; during the heyday of apartheid (and, as we have seen, in the postapartheid era as well) it had one of the world’s worst situations of material inequality. The white minority (about 15 percent of the population) owned approximately 90 percent of the land and earned on average eight times the income of the black majority (over 75 percent of the population), with the top 5 percent of the population consuming more resources than the bottom 85 percent. Given the gross injustice and wrongdoing committed during the apartheid era and the fact that over three-quarters of the new South African electorate were direct or indirect victims of the apartheid regime, it is doubtful that a genuinely open-ended public deliberation would have led to the selection of the truth and reconciliation process (rather than a comprehensive wealth redistribution program, for example) as the most popular scheme for restorative justice during the transition to the new South African regime. The judicialization of restorative justice, in other words, might have become a means of placing certain historic privileges beyond the reach of majoritarian politics.

Political Reaction to Judicial Divergence The transfer of foundational collective identity questions to the courts seldom yields judgments that run counter to the interests of those who chose to delegate more power to courts in the first place. Likewise, the advancement of restorative justice through the courts has been, at best, incremental and lethargic. Judicial empowerment is therefore unlikely to pose a major threat to formative national metanarratives or to the interests of social groups that have been the main beneficiaries of such foundational narratives. That said, the constitutionalization of rights and the establishment of judicial review may provide both opposition legislators and historically disenfranchised groups with the necessary institutional framework for challenging government policy in courts. As the numerous illustrative cases surveyed in Chapter 4 suggest, so long as such challenges are articulated as calls on the government to refrain from

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violating procedural justice safeguards or to avoid excessive interference in the private sphere, they have a reasonable chance of succeeding. Positive and collective rights claims are far less likely to find support with national high courts. The efficacy (or indeed availability) of opposition use of the new constitutional framework to accomplish political goals depends to a considerable extent on the question of standing (locus standi) and access rights; who may initiate a legal challenge to the constitutionality of legislation or official action; and at what stage of the process a given polity’s supreme court may become involved. As a general rule of thumb, the more liberal a polity’s standards of standing and access rights, the greater the likelihood of frequent opposition use of courts in that polity. In the United States, standing rights have been traditionally limited to individuals who claim to have been affected by an allegedly unconstitutional legislation or official action. The U.S. Supreme Court will not hear a challenge to the constitutionality of legislation unless all other possible legal paths and remedies have been exhausted. Moreover, the Court has full discretion over which cases it will hear—its docket therefore consists of “discretionary leave” cases rather than appeals by right. While this mechanism does not block political opposition groups from pursuing constitutional litigation, it significantly raises the costs (and therefore lowers the probability) of such action. Several polities authorize their constitutional court judges, in an ex officio capacity, to initiate proceedings against an apparently unconstitutional law. Other countries (South Africa, for example) impose mandatory referrals of constitutional questions by lower courts to a constitutional tribunal. However, the only path by which a question of supreme constitutional significance can reach the SACC or to the SCC in a prompt fashion is when it is referred directly by authorized state organs (the President of South Africa; Canada’s federal government and/or provincial governments) to the judiciary. This in turn renders opposition use of courts as a deliberate counterestablishment political tool close to impossible. Constitutional democracies that employ a priori and abstract judicial review (such as France) allow for, and even encourage, public officials and political actors to challenge the constitutionality of proposed legislation. Other countries allow private-person constitutional grievances to be submitted directly to their respective high courts. The Supreme Court of Israel, for example, has jurisdiction as appellate court over appeals from the district courts in all matters, both civil and criminal. In addition, it is a court of first instance (sitting as a High Court of Justice) in direct actions launched by individual

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stakeholders against public authorities and in matters where the Court considers it necessary to grant relief in the interests of justice not normally within the jurisdiction of any other court or tribunal. Originally, the Court demanded that a petitioner to the High Court of Justice (HCJ) show possible harm to a direct and material personal interest. Since 1988, however, the Court has significantly liberalized the rules of standing pertaining to direct individual petitions, effectively recognizing standing rights of public petitioners and lowering the barrier of nonjusticiability. This in turn has resulted in countless attempts by political opposition groups, “watchdog” organizations, and even Knesset members to challenge the constitutionality of legislative decisions and executive policies before the HCJ. Opposition challenges to the constitutionality of core executive prerogatives concerning national security, political agreements, and appointments have become an everyday practice. That said, these challenges very rarely come from those who oppose the very legitimacy of judicial empowerment through constitutionalization—the ultra-Orthodox community. In addition to the many cases already discussed, the Court has been asked by opposition groups to determine the rights of extreme nationalist Jewish activists (or any other uninvited Jews) to enter areas in Eastern Jerusalem designated as Muslim holy places, as well as their right to access the El-Aktza mosque on Temple Mount (known to Muslims as the Noble Sanctuary);68 to address the issue of reserve soldiers’ conscientious objection to serve in the occupied territories; and to appraise the Israeli army’s policy of targeted assassinations of Palestinian military activists said to be masterminding attacks on Israeli civilians, as well as the less than dignified burial arrangements for Palestinian casualties of Israel’s military operations in the West Bank and Gaza Strip. Regarding political agreements and appointments, the SCI has responded to opposition petitions to hold that the nomination of a ex–security service agent as Housing Ministry director-general should be void because the nominee was not fit for public office, given that he had perjured himself in two high-profile security service scandals.69 Based on the same reasoning, the Court more recently went on to declare unconstitutional and therefore void the direct appointment by the Prime Minister of another top ex–security service officer as the head of Israel’s antiterrorism authority.70 In the so-called “Bar-on affair”—a widely publicized scandal that troubled Israel’s political sphere for the better part of 1997—the Court ruled that the Attorney General’s decision to ignore police recommendations to file charges against the Prime Minister for administrative miscon-

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duct (which could have led to the his resignation or impeachment) was reasonable and should thus be upheld. Numerous other decisions by senior government officials concerning appointments and layoffs of top civil servants, directors, and ambassadors, and even executive decisions regarding the promotion of high-ranking army officers, have been subject to frequent judicial scrutiny by the SCI. In most of these cases, the petitioners were able to draw on the new constitutional framework, the liberal standing and access rights, and not least on the Court’s willingness (if not eagerness) to adjudicate such political issues. In spite of this flurry of opposition-initiated jurisprudence, Israel’s fundamental political framework and national metanarratives have remained largely unchanged. The same holds true for the vast majority of new constitutionalism polities in which less liberal standing and access rights limit the level of opposition use of courts. Occasionally, courts may respond to opposition counterestablishment challenges by releasing rulings that threaten to alter the political power relations in which the courts are embedded. However, legislatures in most new constitutionalism countries have been able to respond effectively to such unfavorable judgments or simply to hinder their implementation. As several studies have shown, American executives and legislatures have frequently revised, hampered, or circumvented constitutional court rulings.71 As the recent history of comparative constitutional politics tells us, recurrent manifestations of unsolicited judicial intervention in the political sphere in general, and unwelcome judgments concerning contentious political issues in particular, have brought about popular political backlashes and, more important, have triggered legislative override of controversial rulings and “court packing” attempts by political power-holders. In some instances they have resulted in constitutional crises leading to the dissolution of high courts. Examples of the legislative override scenario are ample. Consider the 1985 Indian Supreme Court Shah Bano ruling and its political aftermath.72 Shah Bano, a seventy-three-year-old Muslim Indian woman, was unilaterally divorced by her husband by way of a Muslim talaq divorce after fortythree years of marriage. She then turned to a magistrate’s court to obtain state-decreed alimony payments from her ex-husband, although according to a standard reading of Muslim personal law, she was entitled to alimony for only the first three months following the dissolution of the marriage. When the case reached the Supreme Court of India, it imposed on Shah Bano’s ex-husband monthly maintenance payments for as long as she had

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not remarried and was unable to maintain herself. The Court held that the state-defined statutory right of a neglected wife to maintenance stood regardless of the personal law applicable to the parties. This decision had potentially far-reaching implications for India’s long-standing practice of Muslim self-jurisdiction in core religious matters. Traditionalist representatives of the Muslim community considered this to be proof of Hindu homogenizing trends that threatened to weaken Muslim identity. In 1986, a year after the Supreme Court handed down its controversial decision, the Indian Parliament bowed to massive political pressure by conservative Muslims and overruled the Court’s decision in Shah Bano by passing the Muslim Women’s (Protection of Rights of Divorce) Act. This new bill, its reassuring title notwithstanding, undid the Court’s ruling by removing the rights of Muslim women to appeal to state courts for postdivorce maintenance payments. It also exempted Muslim ex-husbands from other postdivorce obligations.73 Another illustration of this scenario is found in the harsh political reaction to, and corresponding legislative override of, the Australian High Court’s expansion of aboriginal rights. In its historic ruling in Mabo No. 2 (1992), the High Court abandoned the legal concept of terra nullius (vacant land) that had served for centuries as the basis for the institutional denial of aboriginal title, established native title as a basis for proprietary rights in land, and held that aboriginal title was not extinguished by the change in sovereignty.74 At the practical level, however, aboriginal people still needed to prove continuous occupancy of the disputed land prior to and after contact with white settlers in order to be entitled to compensation. In Wik (1996), the High Court went on to hold that leases of pastoral land by the government to private third parties did not necessarily extinguish native title.75 Such extinguishment depended on the specific terms of the pastoral lease and the legislation upon which it was granted. The redistribution implications of Mabo and Wik brought about an immediate popular backlash, with the powerful agricultural and mining sectors, backed by the governments of Queensland, Western Australia, and the Northern Territory, demanding an across-the-board statutory extinguishment of native title. In early 1997, the conservative central government under John Howard willingly bowed to the countercourt political backlash by introducing amendments to the Native Title Act that to all intents and purposes overrode Wik. Recognizing the crucial political significance of the judiciary, politicians in other new constitutionalism countries have tightened their control over judicial appointment processes. In late 1997, for example, a serious rift devel-

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oped between Pakistan’s Prime Minister, Nawaz Sharif, and the Chief Justice of the Supreme Court, Sajjad Ali Shah, over the appointment of new judges to the court. The constitutional crisis came to a dramatic end when the Chief Justice was suspended from office by rebel members of the Supreme Court. A crisis of a similar nature occurred in January 2000, when President Pervez Musharraf insisted that all members of the Supreme Court pledge allegiance to the military administration. The judges who refused to take the oath were expelled from the Court. Responding promptly to an unfavorable ruling by the Singapore Supreme Court concerning due process rights of political dissidents detained for “communist conspiracy to overthrow the government” (Chng Suan Tze, 1988) the government of Singapore (controlled for the past four decades by the People’s Action Party) amended the constitution to revoke the Court’s authority to exercise any meaningful judicial review over governmental powers of preventive detention.76 In a widely publicized ruling in late 1988, the Judicial Committee of the Privy Council (JCPC) in London overturned a decision of the High Court of Singapore to expel Mr. J. B. Jeyaretnam, a leading opposition politician, from the Singapore bar association.77 Prior to its judgment in the Jeyartenam case, the JCPC’s status at the apex of Singapore’s judicial system appeared inviolable. But as soon as the JCPC issued a ruling that ran against the political interests of Singapore’s ruling elite, it was denounced by government officials as “interventionist,” “going outside its prescribed role,” “out of touch” with local conditions, and as “playing politics.”78 Consequently, the Singapore government went on to pass a constitutional amendment that completely abolished appeals to the JCPC. Several new national high courts in former Eastern Bloc countries also endured a series of direct challenges to their authority and independence by political elites and power-holders. Such challenges confronted the newly established national high courts in Albania (the 1998 suspension of the Albanian Constitutional Court, the arrest of its Chair, and the adoption of a constitutional amendment limiting the justices’ tenure in office to nine years); Belarus (the referendum crisis of 1996); Bulgaria (“court packing” attempts by the former Communist party-controlled parliament throughout 1994– 1995); Kazakhstan (the dissolution of the initial Constitutional Court following the 1995 election crisis and the inauguration of a new French-style Constitutional Council); Tajikistan (the 1997 parliamentary restriction of the Constitutional Court’s jurisdiction after the Court declared several parliamentary by-laws unconstitutional); Hungary (the 1998 “court packing”

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and the decision by parliament not to renew the term of Justice László Sólyom, who had led an active and powerful Constitutional Court throughout the 1990s); and of course the 1993 constitutional crisis in Russia—perhaps the most telling illustration of the volatility of the status of judges and supreme courts in the early days of constitutional design in post-communist societies. Immediately after its establishment in 1991, the first Russian Constitutional Court found itself entangled in several politically charged cases. These included the ISS-MVD case, involving a parliamentary challenge to a presidential decree merging the remnants of the KGB with the Ministry of Interior (MVD), which controlled the police;79 the Tatarstan case, in which the Court declared unconstitutional a proposed referendum question concerning the Republic of Tatarstan’s status within the Russian federation—a ruling that was flagrantly ignored by the Tatar government;80 and the landmark Communist Party case in 1992, where the Court dealt with a petition filed by a group of Duma members (mostly former Communist Party officials) challenging the constitutionality of a decree issued by President Boris Yeltsin suspending the Communist Party and taking some of its property in the aftermath of the failed August 1991 coup. These proceedings were then turned by anticommunist members of the Duma into a widely publicized counterattack on the Communist Party, resulting in a semiformal judicial inquest by the first Russian Constitutional Court into the alleged atrocities committed by the Communist Party during its seventy years of dominance. In 1993, the involvement of the Constitutional Court in Russia’s political sphere brought about its dissolution. By late 1993, the Court’s proactive Chair, Valerii Zorkin, had become deeply involved in a fierce political struggle over presidential and legislative prerogatives, which resulted in President Yeltsin’s dissolution of Parliament. Throughout the events leading up to the political crisis of 1993, the Court invoked its ex officio right to initiate constitutional scrutiny of a number of decrees issued by Yeltsin. This led to a split within the Constitutional Court, with the group headed by Zorkin declaring Yeltsin’s dissolution of Parliament to be unconstitutional. Yeltsin reacted by signing a decree suspending the Constitutional Court until the adoption of a new constitution—an act that marked the demise of the first Constitutional Court as well as its controversial Chair.81 Not surprisingly then, in a marked departure from the first Court era, in the years following the constitutional overhaul the second Russian Constitutional Court resorted to the safer area of individual rights jurisprudence and tended to avoid separation-of-powers

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disputes.82 Beyond their immediate ramifications, these and other examples of harsh political responses to unwelcome activism or intervention on the part of the courts no doubt have had a chilling effect on judges’ patterns of decision-making. In short, the political sphere may exercise various effective measures to clip the wings of a divergent or overactive court. Justices are strategic decision-makers who realize that their range of choices is constrained by the preferences and anticipated reaction of the surrounding political sphere. They may learn to exercise self-restraint, strategically select their issue agenda and reasoning, and shift their positions on contentious political questions not only in order to minimize the potential overriding of their decisions, but also to avoid or defuse conflict with other, more powerful branches of government. To this we may add the much more common and subtle (and perhaps more lethal) political response to unwelcome rulings: sheer bureaucratic disregard and protracted or reluctant implementation. Consider, for example, the result of the SCI’s ruling in the Qa’adan case (2000)—arguably one of the most revolutionary rulings concerning a question of major political significance the Court has ever delivered. The case involved an Arab-Israeli couple who in 1994 decided to move from their native village, Baka alGharbiye, to the nearby Jewish communal settlement of Katzir. The Jewish Agency owned the land on which the settlement was built and opposed their move on the grounds that the land was reserved for Jews. The couple appealed to the Supreme Court, which, in a much delayed judgment, cited principles of equality to hold that Arab citizens of Israel were free to settle on land designated by the Jewish Agency for Jews-only communal settlement.83 In somewhat oxymoronic fashion, the SCI held that “a Jewish and democratic state cannot allocate land to members of one national or religious group only.” The implications of this judgment were potentially farreaching: the state of Israel, despite its being a Jewish state, could not discriminate between Jews and Arabs in land allocation, including the allocation of land purchased by the Jewish Agency for purposes of Jewish settlement in Israel. Essentially, this ruling declared unconstitutional a practice that had been implemented for over five decades via the Jewish Agency and that was aimed at fulfilling the Zionist project of “Judaizing” the land, thereby emphasizing the Jewish, rather than the democratic, character of the state. Four years after the SCI’s potentially revolutionary ruling in Qa’adan, very

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little has changed. Katzir has not opened its gates to Arab families. A complex bureaucratic maze has thus far prevented the Qa’adan family from settling in Katzir. As a result of the Court ruling, numerous Jewish families have sold their property in the settlement. Beyond Katzir, Israeli-Arab citizens continue to face the worsening of an already serious housing shortage that stems, at least in part, from a nexus of systematic discriminatory government policies. Constitutionalization of rights and corresponding rights litigation have thus far failed to change, let alone eliminate, this problem. In spite of the Court’s ruling in Qa’adan, over 90 percent of Israel’s land is still owned by the state, through the Israel Land Authority and quasi-governmental Zionist organizations such as the Jewish National Fund and the Jewish Agency. Since the establishment of Israel in 1948, the state has neither built nor supported the construction of a single Arab town, city, or village. Moreover, Israel restricts the expansion or development of existing Arab towns in numerous ways, including massive confiscation of land and limitations on Arab towns’ jurisdiction. Whereas Arab-Israelis make up about 19 percent of Israel’s population, less than 3 percent of Israeli land is allocated to Arab municipalities. Newly built Jewish towns frequently receive permits to expand their jurisdiction, even when neighboring Arab towns have larger populations. A comparison of the state-regulated jurisdiction of Nazareth (the largest Arab city) and Nazareth Illit (Upper Nazareth—a nearby Jewish town), for example, reveals that while the former includes over 80,000 people living on a total area of 16 square kilometers, the latter includes only 40,000 people who live on a total area of 40 square kilometers. As of 2002, the average housing density among Jewish citizens was 0.97 persons per room, as compared with 1.62 persons per room among Arabs and other minorities. These figures indicate a disparity in housing density between the two major ethnic groups in Israel that has been increasing since 1988.84 Since the Court’s controversial judgment was released, the Israeli government has been contemplating overriding Qa’adan altogether by adopting a new law that would provide the Jewish Agency with “as much governmentowned land as needed for the Agency to fulfill its statutory goals” (that is, of Judaizing the land).85 In short, the gap between court rulings and their implementation—between rights and realities—has rendered the practical impact of Qa’adan negligible. This finding should come as little surprise to those familiar with Gerald Rosenberg’s argument in The Hollow Hope. As Rosenberg suggests in his po-

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lemic against the prevalent “dynamic court” approach, the U.S. Supreme Court’s role in producing social reforms (at least in the domains of racial desegregation and abortion) has been far less significant than conventional wisdom would suggest. In fact, hostile opposition forces were able to neutralize the Court’s seemingly groundbreaking ruling in Brown v. Board of Education, at least in the decade following the decision. The limited progress eventually made after the ruling was due to a shift in political forces that had everything to do with the changing economic role of African-Americans and their own extralegal activism—changes that had little to do with the Supreme Court’s ruling. Moreover, courts lack independent enforcement and implementation powers and are therefore institutionally constrained in their efforts to bring about social change; their decisions can be fairly easily stymied if met by strong political opposition. Therefore, courts may effectively produce significant social reform only when extrajudicial political factors are conducive to such change or when market forces offer positive incentives to induce compliance. In this context, Rosenberg argues that “[t]o ask courts to produce significant social reform is to forget their history and ignore their constraints: it is to cloud our vision with a naive and romantic belief in the triumph of rights over politics. And while romance and even naivete have their charms, they are not best exhibited in court rooms.”86 In sum, the impact of constitutionalization on political discourse in Canada, New Zealand, Israel, and South Africa has been nothing less than revolutionary. Constitutional reform in these countries has had a profound effect on the size, scope, and nature of the practice of judicial review and the consequent diminution of legislation. As the examples discussed in this chapter illustrate, the adoption of a constitutional catalogue of rights and the accompanying fortification of judicial review have provided the necessary institutional framework for turning the most contentious political controversies in these four countries into legal battles over constitutional provisions. In spite of the differences in political contexts and judicial traditions among these countries, the constitutionalization of rights and the establishment of judicial review have transformed the national high courts into crucial political decision-making bodies. Issues such as the future of Quebec and the Canadian federation, the deep secular-religious cleavage in Israel, the status of New Zealand’s Maori population, and the question of restorative justice in the wake of the apartheid era in South Africa (to name only a handful of the questions discussed

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in this chapter) were all framed in terms of constitutional claims for rights and entitlements. As such, these issues swiftly found their way to these countries’ national high courts. In spite of the apparent nonjusticiability of these and other fundamentally political questions, these high courts have accepted their new role as key political decision-makers willingly, if not with sheer enthusiasm. In fact, with the exception of the NZCA, all these courts have formally rejected the political question doctrine, according to which there are certain kinds of explicitly political questions that a court ought to refuse to rule on.87 And this is not even to mention these courts’ “expanded justiciability” approach in cases involving “nonfoundational” yet salient political issues such as immigration and privatization policies (New Zealand) or political agreements and national security matters (Israel). A close comparative look at constitutional politics in many other countries suggests that while the specific details of judicialized politics in each of the four countries remain unique, the growing reliance on adjudicative means for clarifying and settling fundamental political questions in these countries is anything but idiosyncratic. A few examples include the Maastricht ruling (1993) by Germany’s Federal Constitutional Court (determining the status of postunification Germany vis-à-vis the emerging European supranational polity); the Russian Constitutional Court ruling (1995) in the Chechnya case (affirming the constitutionality of the Russian military invasion of Chechnya) or its 1998 ruling to disqualify Boris Yeltsin from seeking a third term as president; the Hungarian Constitutional Court nullification of a comprehensive economic emergency plan introduced by the government (the 1995 Austerity Package decisions, or the so-called “Bokros cases”); the Turkish Constitutional Court dissolution of major Islamic opposition parties (for example, the dissolution of the Virtue Party in 2001 and the Welfare Party in 1998); the Fijian Court of Appeal’s landmark ruling in Fiji v. Prasad (2001), the first time in the history of modern constitutionalism that a polity’s high court restored a constitution (the 1997 constitution) and the democratic system of government it had created, following a constitutionally illegitimate coup d’êtat; the 1993 ruling by the reinstalled Supreme Court of Pakistan nullifying a presidential decree that ordered the dissolution of Pakistan’s National Assembly, thereby restoring the democratically elected Nawaz Sharif government; and the 2001 landmark ruling by the same court, affirming the constitutionality of the Pervez Musharraf–led military coup d’êtat of 1999 and ordering Musharraf to restore democratic order in Pakistan no later than October 2002. This is not to mention the Bush v.

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Gore courtroom saga following the 2000 presidential election in the United States.88 In principle, the delegation of policy-making powers to courts may reduce legislators’ impact and control over policy outcomes. In most rule-of-law countries the costs of reversing constitutional arrangements or overriding court judgments are often significant. In addition, judicial empowerment may allow judges to become less accountable to the political sphere and to drift away from the policy preferences of those who decided to delegate decision-making power to the courts. However, although constitutionalization has a profound impact on the articulation, framing, and settling of fundamental moral dilemmas and political mega-questions, the dilemma of delegation embedded in judicial empowerment remains primarily a theoretical concern. As the examples in this book illustrate, national high courts tend to adhere closely to prevalent worldviews, national metanarratives, and the interests of influential elites when dealing with major political issues. Occasionally courts may deliver counterestablishment, groundbreaking rulings on fundamental political questions. However, these rare occasions of uninvited judicial intervention in the political sphere are not likely to transform a given polity’s formative metanarratives or alter its historically rooted patterns of power inequalities. Nor are such occasional judicial deviations likely to survive the long-term resistance of a recalcitrant and often still more powerful political sphere. Those who initiated and carried out the process of judicial empowerment in these countries as an antidote to the vicissitudes of democratic politics therefore have obtained precisely what they wanted: a means of insulating their policy preferences against popular political pressures without risking the potential perils of delegating power to courts.

Conclusion: The Road to Juristocracy and the Limits of Constitutionalization

The constitutional rights revolutions in Canada, New Zealand, Israel, and South Africa (as well as in numerous other countries throughout the world of new constitutionalism) are still in their formative stages. Any attempt to generalize about the impact of constitutionalization of rights on these and other countries must therefore be tentative. Yet although no definitive conclusions as to the origins and consequences of constitutionalization can be offered, I believe that some general (though admittedly speculative) lessons can be drawn from the findings presented here. The expansion of judicial power through constitutionalization and the corresponding acceleration of the judicialization of politics in so many countries over the past few decades may shed light on an aspect of constitutional politics that is often overlooked: the political origins of constitutionalization. Although the adoption of a constitutional catalogue of rights provides the necessary institutional framework for the judicialization of politics, it is certainly not a sufficient condition for generating the high level of judicialized politics we have seen in the four countries studied here. The rise of constitutionalization and judicial review, and the corresponding transfer to the courts of questions such as the future of the Canadian confederation, national healing in the wake of apartheid, the fate of the Maori, or the meaning of a “Jewish and democratic” state could not have developed and cannot be understood in isolation from the major struggles that form the Canadian, South African, New Zealand, and Israeli political systems. To be sure, none of these problems is uniquely or intrinsically legal. It is therefore unclear at first glance why a political regime would vest extended authority in the courts to resolve them. What is more, the broadened political jurisdiction of the courts vis-à-vis the declining power of legislatures is especially perplexing since courts, even with their new powers, still do not hold indepen211

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dent purse strings, nor have they any means of independently enforcing their power. Yet they have been given authority to limit the institutional flexibility of political decision-makers. Judicial empowerment through constitutionalization seems, prima facie, to run counter to the interests of power-holders in legislatures and executives. How then can we explain the increasingly common transfer of power from majoritarian policy-making arenas to national high courts? Mainstream constitutional politics scholarship tends to emphasize the decentralizing, power-diffusing effects of constitutionalization and judicial review. Judicial empowerment through constitutionalization is therefore commonly perceived as reflecting progressive social or political change; as derivative of a general waning of confidence in technocratic government and a consequent desire to restrict discretionary powers of the state; or simply as the result of societies’ or politicians’ genuine devotion to a post–World War II “thick” notion of democracy and a universal notion of human rights. However, none of these grand theories is based on a genuinely comparative systematic and detailed analysis of the political vectors behind any of the actual constitutional revolutions of the past few decades. What is more, these explanations ignore the role of human agency in constitutional innovation as well as the interest of economic elites in confining the boundaries of the state through constitutionalization. More important, they fail to account for the significant variations in the timing, scope, and nature of this phenomenon throughout the world. If we apply the extant theories of constitutional transformation to any concrete example, they fail to explain why relatively open, rule-of-law polities such as Canada, Israel, and New Zealand reached their highest stage of political and judicial progress precisely when they did and not, say, a decade earlier or later. Institutional economics and public choice theories of constitutional transformation (essentially suggesting that constitutions and judicial review increase economic predictability and efficiently mitigate systemic collectiveaction problems such as coordination, commitment, and enforcement) do not fare much better than mainstream constitutional politics theories in accounting for the variations in the timing, scope, and nature of the transition to constituionalization and judicial review. Such theories focus exclusively on explaining constitutional change while overlooking constitutional stalemate. If a given polity indeed requires efficient mitigation of systemic collective-action problems, then how can we explain the fact that earlier attempts in that polity to resolve these problems through constitutionalization failed?

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Furthermore, the very notion of judicial empowerment as an efficient response to systemic deficiencies is based on a simplistic and static understanding of political sociology in divided polities, not to mention a thin functionalist perception of constitutional and political change. And as we have seen, it ignores influential economic stakeholders’ and prominent judicial figures’ contribution to the constitutionalization of rights and the establishment of judicial review. As one of those people who (as it was said of Lyndon Johnson) “seldom think of politics more than 18 hours a day,” I have advanced here a strategic notion of judicial empowerment through constitutionalization as driven primarily by political interests to insulate certain policy preferences from popular pressures. At the very least, the judicialization of fundamental political questions offers a convenient refuge for politicians seeking to avoid making difficult no-win moral and political decisions. After all, when contentious political issues are treated as legal questions, the concomitant assumption is that judges and courts, rather than elected representatives in majoritarian decision-making arenas, should resolve them. A more astute examination suggests that the transfer of these and other “big questions” from the political sphere to the courts has been tacitly supported, if not actively initiated, by political actors representing hegemonic elites and established interests. Judicial empowerment through constitutionalization provides these elites and their political representatives with effective means for reducing the risks to themselves and to the institutional apparatus within which they operate. The removal of policy-making power from legislatures and executives and its investiture in courts may become attractive to political power-holders for any of several reasons: when they seek to gain public support for their contentious views by relying on national high courts’ public image as professional and apolitical decision-making bodies; when they regard public disputes in majoritarian decision-making arenas as likely to put their own policy preferences at risk; or when they estimate that abiding by the limits imposed by expanded judicial power will enhance their absolute or relative position vis-à-vis rival political elements and their alternative worldviews or policy preferences. The constitutionalization of rights and the establishment of judicial review is therefore not driven solely, or even primarily, by politicians’ genuine commitment to progressive notions of social justice or to an elevated vision of universal rights. It is driven in many cases by attempts to maintain the social and political status quo and to block attempts to seriously challenge it

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through democratic politics. As my analysis of the political origins of the constitutional revolution in these four polities suggests, judicial empowerment through constitutionalization is more often than not the result of a strategic tripartite pact between hegemonic, yet increasingly threatened, political elites seeking to insulate their policy preferences from the vicissitudes of democratic politics; economic elites who share a commitment to free markets and a concomitant antipathy to government; and supreme courts seeking to enhance their symbolic power and institutional position. Unlike economic and judicial elites, whose interest in constitutionalization is self-evident, political power-holders’ proconstitutionalization impulse appears to be counterintuitive. However, the analysis presented here reveals that political support for constitutionalization can be productively analyzed in terms of an interest-based hegemonic preservation approach. Governing elites in divided, rule-of-law polities face a constant struggle to preserve their hegemony. Such elites are likely to advocate a delegation of power to the judiciary (a) when their hegemony is increasingly challenged in majoritarian decision-making arenas by policy preferences of peripheral groups; (b) when the judiciary in that polity enjoys a reputation for rectitude and political impartiality; and (c) when the courts in that polity are inclined to rule in accordance with hegemonic ideological and cultural propensities. Indeed, as we have seen, national high courts seldom diverge on a longterm basis from national metanarratives and the interests of hegemonic political forces. The rare exceptions to this pattern are not likely to transform a given polity’s formative metanarratives or to alter its historically rooted patterns of power inequalities. Furthermore, even occasional judicial deviations are not likely to survive in the face of a more powerful political sphere. Those who established judicial empowerment as a response to challenges to their political hegemony have succeeded in protecting their policy preferences from the vagaries of democratic politics without risking the dangers of delegation. The hegemonic preservation thesis may help us understand judicial empowerment through constitutionalization as part of a broader trend whereby crucial policy-making functions are increasingly insulated from majoritarian control. As we have seen, the world seems to have been seized by a craze for constitutionalization and judicial review. The transformation of judicial institutions into major political actors has not been limited to the national level; at the supranational level, the European Court of Justice in-

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terprets the treaties upon which the European Union is founded and has been awarded an increasingly important status by legislators, executives, and judiciaries in the EU member-states in dealing with interstate legal and economic disputes. The European Court of Human Rights in Strasbourg, the judicial arm of the forty-one-member Council of Europe, has in effect become the final court of appeal on human-rights issues for most of Europe. The judgments of these European courts (as well as of other supranational tribunals, such as the Inter-American Court of Human Rights) carry great weight and have forced many countries to incorporate transnational legal standards into their domestic legal system. The expansion of the EU and the consequent territorial expansion of its courts not only transformed European politics, it also extended the exercise of judicial power to new or charged political settings. Present calls for the adoption of a global constitution and for the establishment of a permanent international tribunal for war crimes and human rights violations also suggest that the law and courts in general, and the constitutionalization of rights in particular, are increasingly becoming key factors in international politics. Over the past several decades, the delegation of policy-making authority to semiautonomous, professional bodies has also expanded in other, nonjudicial realms. In many countries, for example, there has been a general move toward granting greater independence to central banks. Countries such as Belgium, Britain, France, Spain, Brazil, and Argentina have all increased the autonomy of their respective central banks. In these and many other countries, democratically elected governments no longer have exclusive control over monetary policy-making. Likewise, supranational policymaking bodies (mostly EU-affiliated) have gained authority over many aspects of everyday life in the European continent over the past three decades. This process has included the establishment of the new European Central Bank; the recent launch of a single European currency; the emergence of a complex nexus of supranational legal provisions regulating production, import, and export of goods, as well as taxation and customs throughout the European continent; and the reconstruction and expansion of NATO—not to mention the creation of new transnational bodies dealing with immigration, natural resources, labor relations, food and drug licensing and regulation, consumer protection, environmental preservation, and so on. A similar process has taken place, albeit at a slower pace, in other continents (for example, the emergence of transnational trade treaties such as NAFTA in North America, MERCOSUR in South America, and ASEAN in Asia), as well

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as at the intercontinental level (for example, the rise of supranational bodies such as the International Monetary Fund and the World Trade Organization, which monitor substantive aspects of global trade and international monetary policies). Almost all of these supranational entities have established powerful judicial or quasi-judicial binding adjudication apparatuses. In short, a large-scale transfer of crucial policy-making prerogatives from majoritarian decision-making arenas to relatively insulated domestic and transnational policy-making bodies has been established over the past thirty years. This has occurred alongside growing popular demands for political representation; the spread throughout the globe of universal suffrage (which has included an erosion of the historical dependence of voting rights on property ownership, gender, race, or ethnic origin); a global decline in politically formalized group-based discrimination and segregation; a rapid growth in the level of education and political awareness among the general population; an unprecedented influx of immigration to prosperous western countries over the past three decades, which threatens to change the foundational demographics in these countries; increasing demands by ethnic and religious communities for greater representation; and above all the growing presence of new or historically recessive interests and policy preferences (for example, environmentalism, disarmament, multiculturalism, nontraditional sexual preferences) in crucial majoritarian policy-making arenas. Consequently, the institutions of democratic governance now operate in a profoundly different environment than that in which they were founded. All these recent developments imply a profoundly more versatile electorate and consequently an increasing potential threat to established interests and hegemonic cultural, economic, and political worldviews. The expanded representation of such “peripheral” interests has further emphasized the tension between powerful centripetal forces of convergence acting on the state from outside (such as formal democracy, economic neoliberalism, global capitalism, an international stock-exchange culture, and media production and consumption controlled to a large extent by a handful of international mega-conglomerates) and reemerging centrifugal forces of divergence acting on it from inside (such as regionalism, differentiated citizenship, and growing economic inequality). In the face of such challenges, supporters of dominant but increasingly threatened interests may choose to limit the policy-making authority of majoritarian decision-making arenas by gradually transferring authority to relatively insulated, professional policy-

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making institutions, such as national high courts, central banks, transnational trade and monetary organizations, and supranational bureaucracies and tribunals. By keeping popular decision-making mechanisms at the forefront of the formal democratic political processes while simultaneously shifting the power to formulate and promulgate certain policies from majoritarian policy-making arenas to semiautonomous professional policy-making bodies, those who possess disproportionate access to and have a decisive influence upon such bodies minimize the potential threat to their hegemony. I therefore suggest that the current global trend toward judicial empowerment through constitutionalization is part of a broader process whereby self-interested political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policy-making from the vagaries of democratic politics. Given the increasing presence of previously excluded groups and interests in majoritarian policy-making arenas, this largescale insulation of policy-making is perhaps the least dangerous course of action for threatened elites. Put bluntly, it can best be understood as an attempt to defend established interests from the potential threats posed by the voices of cultural divergence, growing economic inequality, regionalism, and other centrifugal forces that have been given a public platform through the proliferation of representative democracy. As Michael Mandel points out, the recent history of the new constitutionalism provides a perfect illustration of this logic.1 As long as representative political decision-making institutions were kept safely in the hands of the established social circles (typically economic magnates, the political aristocracy, professionals, and the urban intelligentsia), parliamentary sovereignty was praised by politicians and constitutional theorists alike as the most sacred of democratic values. The delegation of policy-making to national high courts was relatively limited. As political representatives of the established interests started to lose control of these institutions (at different times in different polities), they started to worry about the “tyranny of the majority.”2 This led to high praise for and conversion to judicial review and to the subsequent transfer of crucial policy-making functions to the courts. Thus, the new constitutionalism—“the transformation in the relations between courts and representative institutions through the enactment of bills of rights that has swept the world during the past few decades”—appears from our present vantage point to be a transformation that “changes everything so that everything may remain the same.”3 This counterintuitive in-

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sight concerning the origins and consequences of one of the most significant political phenomena of our times—the transition to juristocracy—serves as a rather grim testament to the real nature of twenty-first-century constitutional democracy. For the reasons just outlined, simple, sweeping claims about the positive effects of the constitutionalization of rights ought to be viewed skeptically. Whereas this development may affirm identities previously marginalized or promote the status and visibility of procedural justice and negative liberties, its influence on promoting progressive notions of distributive justice has been exaggerated. The comprehensive examination of the bill of rights cases adjudicated by the high courts of the four countries presented in Chapter 4, as well as the variety of sociopolitical indicators presented in Chapter 5, demonstrate that constitutional rights are never interpreted or implemented in a political or ideological vacuum. Judicial interpretation and implementation of constitutional rights depend to a large extent on the ideological atmosphere, specific institutional constraints, and economic and social metaconditions within which they operate. In an age of social and economic neoliberalism, constitutional rights appear to have only a limited capacity to advance nonmarket notions of social justice into arenas that require wider state intervention and more public expenditure (for example, basic housing, health care, education, employment, and welfare). Redistribution of resources and opportunities, eradication of illiteracy and poverty, the provision of minimal life conditions—all lie beyond the reach of constitutional rights as currently interpreted by national high courts. By contrast, constitutional entrenchment of rights and rights litigation has proven effective in enhancing the status of classic civil liberties, protecting and expanding the boundaries of the private (human or economic) sphere. It may therefore mitigate injustice primarily where it is congruent with the prevalent conceptualization of rights as safeguards against state interference with the private sphere. And even that much progress in a given polity largely depends on the existence of hospitable sociocultural conditions as well as a more concrete “support structure for legal mobilization” that allows groups and individuals to invoke rights provisions through strategic litigation in the first place.4 Unfortunately, as this study has shown, the increasingly popular constitutionalization of rights has not proven to be a significant step toward egalitarianism. In fact, constitutionalization has more often served as effective means for shielding the economic sphere from attempts to reduce socioeconomic disparity through regulatory and redistributive means. South

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Africa’s new constitution is one of the most progressive in the world. Nonetheless, the unemployment rate among Black South Africans exceeds 40 percent, crime is escalating, and the distribution of wealth along racial lines remains almost undisturbed, as 95 percent of the poor are black and 4 percent are “coloured” (mixed race), while white and Indian South Africans make up less than 1 percent of that country’s poor. Inadequate access to basic life conditions is prevalent, with more than half the country’s population living within households that earn on average less than $100 per month, and with fewer than one-third of blacks having internal taps, flush toilets, and electricity. While the NZBORA guarantees equality rights, New Zealand has witnessed skyrocketing social and economic inequality, mostly concentrated along ethnic lines. New Zealand’s rights revolution has been described by scholars as one of the most significant developments in the country’s history; but in its aftermath the total income of the richest quintile is seventeen times higher than that of the poorest, and Maori inmates continue to account for 50 percent of New Zealand’s prison population. Although Canada has been ranked among the top three countries in the United Nations’ Human Development Report for nine years in a row, the human development of its aboriginal population (whose rights have been fully recognized by the Canadian Constitution for over two decades) was ranked only seventy-third in the world in the most recent report. While the adoption of the Canadian Charter of Rights and Freedoms helped fortify the formal status of some first-generation negative rights and bilingualism, it also eroded the status of the right to strike and helped to lower trade barriers between Canada and its southern neighbor. Astonishingly, over two-thirds of Canada’s private-sector economy is now owned by American economic conglomerates. In Israel, despite the adoption of two new Basic Laws protecting fundamental rights, not a single Arab town has been built in Israel over the past fifty years, and tens of thousands of Arab-Israelis continue to live in “unrecognized” villages. At the same time as Israel’s new Basic Laws provided the necessary constitutional framework for expansively demarcating the boundaries of the private sphere, the formerly collectivist Israeli society has become the third most unequal society among established democracies in terms of income distribution. In other words, as Harry Glasbeek put it, “better manners at the dining table do not necessarily mean better food on it.”5

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Given the stark socioeconomic disparities among and within nations and groups, and given the extrajudicial social and economic conditions that preclude a full realization of substantive equality, it is questionable whether an even more extensive constitutionalization of rights or a more generous judicial interpretation of these rights would significantly improve the real socioeconomic status of capitalism’s traditional losers—especially given the clear gap between the rhetoric that celebrates the supposedly unequivocal positive impact of constitutionalization on creating a just society and the actually negligible effect of bills of rights on advancing progressive notions of distributive justice. These findings are consistent with the experience of the United States, which is perhaps the clearest contemporary example of a country with a long and established tradition of constitutional protection of freedoms and active judicial review that does not disturb the polity’s basic political and economic organization. The United States has one of the most unequal distributions of income among advanced industrial societies; it has vast social and economic disparity (the second largest among western societies); and it is controlled to a large extent by the sheer power of corporate capital. Norway and Sweden, two of the most developed and prosperous nations on earth, have long adhered to a relatively egalitarian conception of democracy while being less than enthusiastic (to put it mildly) about the American notion of rights and judicial review. Does this attitude negatively affect individual liberties in these countries? Hardly. And, as another example, the status of individual freedoms in the Netherlands—which until very recently stringently opposed the idea and practice of judicial review—has certainly not been lower than in the United States, which has had more than two centuries’ experience with a widely celebrated Bill of Rights and two centuries of active judicial review. The very fact that the constitutionalization of rights has become a booming industry over the past three decades may bring into question the authenticity of the benevolent vision behind this trend. Now, at the beginning of a new millennium, it is clearer than ever that mega-conglomerates shape and control much of our economic and cultural supply and demand; that a rather shallow international stock-exchange culture has been elevated to a status of cultural totem; that transnational bodies that govern global trade and monetary affairs have become more powerful than ever before, successfully imposing self-defeating neoliberal economic reforms on poor developing countries; that closing the stark and growing disparities in life conditions

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among members of a polity as well as among polities is not viewed as essential for the fulfillment of democracy; and that a prevalent Schumpeterian (or minimalist) conception of democracy has established itself, in which the essence of democracy is relegated to the existence of some sort of electoral routine, controlled to a large extent by those who have greater access to and influence on the public agenda. These and other dominant phenomena of our times are hostile to the active state and unsympathetic (at best) to the notion of substantive social and economic equality. In light of the common nature of these phenomena, we have no real reason to believe that the current wave of constitutionalization is likely to develop in an altogether different manner. Whereas their impact on judicial and extrajudicial attitudes toward social justice seems overrated or, at the very least, more nuanced than the conventional wisdom suggests, the constitutionalization of rights and the corresponding establishment of judicial review do have a transformative impact on political discourse. The existence of a political environment conducive to judicial empowerment and the consequent creation of a constitutional framework that encourages deference to the courts provided the necessary conditions for the wholesale judicialization of the most salient and contested issues in Canada, Israel, New Zealand, and South Africa. Foundational collective identity, nation-building, and questions of restorative justice have been framed as constitutional controversies and as such rapidly found their way to the national high courts of these countries. “Anything and everything is justiciable” appears to have become a widely accepted motto by courts worldwide. Many countries have seen a growing legislative deference to the judiciary, an increasing (and often welcomed) intrusion of the judiciary into the prerogatives of legislatures and executives, and a corresponding acceleration of the process whereby political agendas have been judicialized. Together, these developments have helped bring about a growing reliance on adjudicative means for clarifying and settling fundamental moral controversies and highly contentious political questions and have transformed national high courts into major political decisionmaking bodies. The increasing power of supranational tribunals, such as the European Court of Justice, the European Court of Human Rights, the United Nations Human Rights Committee, or the World Trade Organization’s compulsory and binding adjudication apparatus, as well as the proliferation of numerous quasi-judicial tribunals, panels, and commissions dealing with international human rights, transnational governance, trade, and monetary

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affairs suggest that law, courts, and judicial power are becoming key factors in international politics. Most critics of these developments on democratic grounds have been preoccupied with the countermajoritarian nature and questionable democratic credentials of fundamental moral choices made by unelected, unaccountable judges, primarily in the context of rights jurisprudence. But the everaccelerating judicialization train has left the rights jurisprudence station. The expansion of the province of courts in determining political outcomes at the expense of politicians, civil servants, and/or the populace has not only become more globally widespread than ever before; it has also expanded to become a manifold, multifaceted phenomenon, extending well beyond the now-standard concept of judge-made policy-making through constitutional rights jurisprudence and judicial redrawing of legislative boundaries. The judicialization of politics now includes the wholesale transfer to the courts of some of the most pertinent and polemical political controversies a democratic polity can contemplate. What has been loosely termed “judicial activism” has evolved beyond the existing conventions found in normative constitutional theory literature. A new political order—juristocracy—has been rapidly establishing itself throughout world. Given this dramatic development, the traditional neglect of the study of comparative law and politics is becoming harder to justify. Although intellectual interest in the field of comparative constitutionalism and judicial politics has been growing steadily over the past decade, genuinely comparative, problem-driven or theme-oriented scholarship (as opposed to single-country studies mistakenly characterized as comparative only by the virtue of dealing with any country other the United States) is still difficult to come by. What is worse, in spite of the fact that constitutionalism and judicial review have “gone global,” by far the greater part of constitutional law and politics scholarship produced in the United States is not only confined to American constitutional history and practice, but adamantly refuses to admit to its parochialism. Until recently, as Bruce Ackerman has noted, it was appropriate to give the American experience a privileged position in the study of constitutional politics, primarily because other countries’ experiences with written constitutions and judicial review were simply too short to warrant confident predictions as to which, if any, would successfully shape long-term sociopolitical evolution.6 However, given the scope and nature of the global trend toward juristocracy, the extent to which the study of comparative con-

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stitutional politics has been overlooked is indeed “as remarkable as it is regrettable.”7 As I have stressed throughout this book, the degree of parochialism among many scholars of constitutional politics is not merely a problem in terms of aesthetics or intellectual taste. The traditional overemphasis on the United States’s exceptional constitutional legacy and the dearth of genuinely comparative research in the field have important methodological implications for the study of the origins and consequences of constitutionalization. As we have seen, political struggles amidst persisting traditions of parliamentary sovereignty in Canada, Israel, New Zealand, and South Africa have given rise to a flurry of innovative constitutional mechanisms aimed at reducing popular opposition to judicial empowerment by mitigating the tension between rigid constitutional provisions and active judicial review on the one hand and democratic governing principles of political representation and participation on the other. From limitation and override clauses to the preferential model of judicial review; from a declaration of incompatibility to the reference procedure to abstract judicial preview of proposed legislation—the world of new constitutionalism has become a living laboratory of constitutional innovation. For the most part, the transition to juristocracy in countries other than the United States reflects an entirely different historical context from the one that produced the U.S. Constitution. Constitutional politics and national high courts in India, Pakistan, Germany, Sweden, Russia, Hungary, Turkey, Egypt, Singapore, Hong Kong, Mexico, Chile, Britain, Australia, Canada, New Zealand, Israel, and South Africa have arisen out of different social struggles and political contexts and must develop in a world changed beyond recognition from the late eighteenth century; at the same time, these countries face a different set of challenges from those that confronted the creators of the U.S. Constitution. And while it is important to emphasize the United States’s indisputably unique legacy and profound implications for the rest of the world, it is equally important, I believe, to place the dramatic manifestations of the expansion of judicial review in that country within a broader context of similar developments that have taken place over the past several decades in many other countries. Such an informed comparative research agenda will not only help to bridge the gap between grand constitutional theory and real-life constitutional politics worldwide; it is also likely to yield novel insights concerning the origins and consequences of the ever-accelerating transition to juristocracy.

Notes

Introduction 1. Alexis de Tocqueville, On Democracy (New York: Knopf, [1835] 1945), 280. 2. C. N. Tate and T. Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995), 5. 3. See Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus, 1990). 4. For recent critiques of judicial review on democratic grounds, see, e.g., Mark Tushnet, Taking the Constitution away from the Courts (Princeton, N.J.: Princeton University Press, 1999); Jeremy Waldron, The Dignity of Legislation (Oxford: Oxford University Press, 1999); Waldron, “Judicial Review and the Conditions for Democracy,” Journal of Political Philosophy 6 (1998): 335–355; James Allan, “Bills of Rights and Judicial Power—A Liberal’s Quandary,” Oxford Journal of Legal Studies 16 (1996): 337–352; Jeremy Waldron, “A Rights-Based Critique of Constitutional Rights,” Oxford Journal of Legal Studies 13 (1993): 18–51; Ian Shapiro, Democratic Justice (New Haven: Yale University Press, 1999); Robert Burt, The Constitution in Conflict (New Haven: Yale University Press, 1992); and Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996). For critiques of judicial review on conservative-populist grounds, see, e.g., Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990); and Bork, Coercing Virtue: The Worldwide Rule of Judges (Toronto: Vintage Canada, 2002). 5. Mark Graber, “Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship,” Law and Social Inquiry 27 (2002): 309–338, 315. 6. Ronald Dworkin, Freedom’s Law (Cambridge, Mass.: Harvard University Press, 1996), 34. 7. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, 2nd ed. (Toronto: Thompson Educational Publishing, 1994); Christopher Manfredi, Judicial Power and the Charter (Toronto: Oxford University Press, 2001); F. L. Morton and Rainer Knopff, The Charter Revolution and the Court

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8.

9. 10.

11.

12. 13.

14.

Notes to Pages 4–17 Party, 2nd ed. (Toronto: Broadview Press, 2000); and Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001). See Alec Stone, The Birth of Judicial Politics in France (New York: Oxford University Press, 1992); Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. (Durham: Duke University Press, 1997); Mary Volcansek, Constitutional Politics in Italy: The Constitutional Court (New York: St. Martin’s Press, 2000); and collections of predominantly single-country essays such as Tate and Vallinder’s Global Expansion of Judicial Power. Jon Elster et al., Institutional Design in Post-Communist Societies (Cambridge: Cambridge University Press, 1998), to name only one recent example. See, e.g., publications by Karen Alter, Geoffrey Garrett, Sally Kenney, Walter Mattli, Anne-Marie Slaughter, Alec Stone Sweet, and J. H. H. Weiler, to name a few leading scholars who have published extensively in the area of European and EU public law and judicial politics. See e.g. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000); William Prillaman, The Judiciary and Democratic Decay in Latin America (Westport, Conn.: Praeger, 2000); and Leslie Friedman Goldstein, Constituting Federal Sovereignty: The European Union in Comparative Context (Baltimore: Johns Hopkins University Press, 2001). Daniel Lazare, “America the Undemocratic,” New Left Review 232 (1998): 3–31, 21. George Fletcher, “Comparative Law as a Subversive Discipline,” American Journal of Comparative Law 46 (1998): 683–700, 691. For a critique of American parochialism in this regard see, e.g., Ran Hirschl, “Looking Sideways, Looking Backwards, Looking Forwards,” University of Richmond Law Review 43 (2000): 414–441; Bruce Ackerman, “The Rise of World Constitutionalism,” Virginia Law Review 83 (1997): 771–797; and Martin Shapiro, “Public Law and Judicial Politics,” in Ada Finifter, ed., Political Science: The State of the Discipline (Washington, D.C.: American Political Science Association, 1993). To these six scenarios we may add a seventh: the establishment of judicial review at the supranational level through the proliferation of supranational courts (such as the European Court of Justice, the European Court of Human Rights, the International Criminal Court, the United Nations Human Rights Committee, and the International Court of Justice) as well as numerous quasijudicial tribunals, panels, and commissions dealing with international governance, trade and monetary affairs, and international human rights issues.

1. Four Constitutional Revolutions 1. The British North America (BNA) Act 1867 was renamed the Constitution Act, 1867 by the Constitution Act 1982. The BNA Act, passed by the United Kingdom Parliament, created the Canadian federation. It united the provinces of Canada (which was divided into two new provinces, Ontario and Quebec), Nova Scotia, and New Brunswick into a single “Dominion” under the name of

Notes to Pages 18–23

2. 3.

4. 5. 6.

7. 8.

9.

10.

11.

12. 13.

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Canada; established a bicameral national Parliament; and distributed legislative powers between the federal Parliament and the provincial legislatures. “How the Charter Changes Justice” (interview with Chief Justice Lamer), Globe and Mail, April 17, 1992, A11. In R. v. Oakes, [1986] 1 S.C.R. 103, the SCC developed a two-pronged approach to interpreting the Charter’s “limitation clause.” In this approach, one first determines whether the challenged law or conduct violates, denies, or infringes any right. This requires an analysis of the scope and definition of the right as well as the purpose and effect of the legislation and conduct. Second, the court must determine whether there has been a justifiable limitation on the right concerned. R. v. Drybones, [1970] S.C.R. 282. F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, 2nd ed. (Toronto: Broadview Press, 2000), ch. 1. Thorson v. Attorney-General Canada, [1975] 1 S.C.R. 138. See also Kent Roach, “The Role of Litigation and the Charter in Interest Advocacy,” in F. Seidle, ed., Equality and Community: The Charter, Interest Advocacy, and Representation (Montreal: Institute for Research and Public Policy, 1993). Minister of Justice (Canada) vs. Borowski, [1981] 2 S.C.R. 575, 598. In H.C. 98/69 Bergman v. Minister of Finance 23(1) P.D. 693, the Supreme Court of Israel upheld the validity of these entrenched clauses and rejected inconsistent laws not enacted by the prescribed majority. Basic Law: Freedom of Occupation was officially enacted on March 3, 1992, and amended two years later, on March 9, 1994. Basic Law: Human Dignity and Liberty was officially enacted on March 17, 1992. E.g., the El-Ard, Ben-Shalom, Rabbi Kahane, and most recently the Azmi B’shara cases, all dealing with the eligibility of parliamentary lists whose platform contradicted the “Jewish and democratic” principle. Basic Law: Human Dignity and Liberty, § 8; Basic Law: Freedom of Occupation, § 4. Significantly, both laws authorize judicial review. However, Article 10 of Basic Law: Human Dignity and Liberty grants immunity from scrutiny to all previously existing legislation. Thus, unlike Basic Law: Freedom of Occupation, the supremacy of this Basic Law applies only to future legislation that may infringe on rights guaranteed by the Basic Law. Basic Law: Freedom of Occupation, § 8. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195. The U.S. Supreme Court’s ruling in Marbury v. Madison (1803) is generally credited with establishing “judicial review”—the power of the courts to declare unconstitutional and therefore unenforceable any law, statute, legislative or executive practice, and any action by a public official on the grounds that the challenged law, statute, act, or practice is in conflict with a polity’s constitution or basic law. Article 3 of the new Basic Law states: “A person’s property must not be harmed.”

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15. See also my discussion of this case in Chapter 4. 16. The turning point in this respect was H.C. 910/86 Ressler v. Minister of Defense, 42(2) P.D. 441. Here the Court declared that whenever a petition raised an issue of important constitutional merit, or when there was a prima facie concern for significant governmental violations of the rule of law, any person was entitled to petition the High Court of Justice, regardless of his or her personal interest in the outcome of the litigation. 17. Sir Robin Cooke, “A Sketch from the Blue Train,” New Zealand Law Journal [1994]: 10–13. 18. The tribunal was established through the New Zealand Human Rights Amendment Act 2001. 19. Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439. 20. Simpson v. Attorney General, [1994] 3 NZLR 667, 706. 21. See, e.g., Drew v. Attorney-General, [2001] NZCA 207. 22. R v. Pora, [2001] 2 NZLR 37. See also R v. Poumako, [2000] 2 NZLR 695. 23. Preamble, New Zealand Bill of Rights Act (1990). 24. A few examples are Tavita v. Minister of Immigration, [1994] 2 NZLR 257; Rajan v. Minister of Immigration, [1996] 3 NZLR 543; and Puli’uvea v. Removal Review Authority, [1996] 3 NZLR 538—all dealing with immigration regulations and practices. In all of these cases, the NZCA held that a challenge to the lawfulness of any state policy or practice could be based on the grounds that it was inconsistent with international human rights treaty obligations, regardless of whether the treaty in question had been enshrined in statute. 25. Ivor Richardson, “Rights Jurisprudence—Justice for All?” in P. Joseph, ed., Essays on the Constitution (Wellington: Brooker’s, 1995), 61–83, 75.

2. The Political Origins of Constitutionalization 1. For works that emphasize cultural variations, see Sir Henry Maine, Ancient Law [1861] (New York: Dutton, Everyman’s Library, 1972); Emile Durkheim, The Division of Labor in Society [1893] (New York: Free Press, 1964). 2. See, e.g., S. N. Eisenstadt, ed., Readings in Social Evolution and Development (Oxford: Pergamon, 1970); S. N. Eisenstadt, Modernization: Protest and Change (Englewood Cliffs, N.J.: Prentice-Hall, 1966); Talcott Parsons, The Evolution of Societies (Englewood Cliffs, N.J.: Prentice-Hall, 1977). 3. The works that adopt various versions of this approach are too numerous to cite. The most prominent exponent of this line of thought is Ronald Dworkin. See, e.g., Dworkin’s Taking Rights Seriously (London: Duckworth, 1978); and A Bill of Rights for Britain (London: Chatto and Windus, 1990). See also Andras Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central European University Press, 1999). 4. For an elaboration of the social contract school (or the precommitment argument) see, e.g., Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press, 1988); Samuel Freeman, “Con-

Notes to Pages 33–37

5. 6.

7.

8. 9. 10. 11.

12.

13. 14.

15.

16.

17.

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stitutional Democracy and the Legitimacy of Judicial Review,” Law and Philosophy 9 (1990): 327–370; and Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995). For a critique of the precommitment argument see, e.g., Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1998). Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review,” 353. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981); Martin Shapiro, “The Success of Judicial Review,” in S. Kenney, ed., Constitutional Dialogues in Comparative Perspective (London: Macmillan, 1999). George Tsebelis, “Decision-Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism, and Multipartyism,” British Journal of Political Science 25 (1995): 289–325; K. Weaver and B. Rockman, eds., Do Institutions Matter? Government Capabilities in the United States and Abroad (Washington, D.C.: Brookings Institution, 1993). Jon Elster, “Forces and Mechanisms in the Constitution Making Process,” Duke Law Journal 45 (1995): 364–396. See Paul Rubin, Business Firms and the Common Law: The Evolution of Efficient Rules (New York: Praeger, 1983). Douglass North and Robert Thomas, The Rise of the Western World (New York: Cambridge University Press, 1973). For an elaboration of this approach, see Carlo Guarnieri et al., The Power of Judges: A Comparative Study of Court and Democracy (New York: Oxford University Press, 2002), 160–181. A. Baaklini and H. Desfosses, eds., Designs for Democratic Stability: Studies in Viable Constitutionalism (Armonk, N.Y.: M. E. Sharpe, 1997); L. Diamond et al., eds., Consolidating Third World Democracies (Cambridge: Cambridge University Press, 1997); A. Lijphart and C. Waisman, eds., Institutional Design in New Democracies (Boulder, Colo.: Westview Press, 1996); and Elster, “Forces and Mechanisms in the Constitution Making Process.” For example, between Jews and non-Jews, secular and religious Jews, and Ashkenazi and Mizrahi Jews. Gad Barzilai, “The Supreme Court in Israeli Legal Culture,” International Social Science Journal 152 (1997): 193–208; Martin Edelman, “The Judicialization of Politics in Israel,” International Political Science Review 15 (1994): 177–186. Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (Cambridge: Cambridge University Press, 1998). Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000); Alec Stone Sweet and Thomas Brunell, “Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community,” American Political Science Review 92 (1998): 63–81. North and Thomas, The Rise of the Western World; Oliver Williamson, “Credible

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18. 19.

20.

21.

22. 23.

24.

25. 26.

Notes to Pages 37–41 Commitments—Using Hostages to Support Exchange,” American Economic Review 73 (1983): 519–540; Barry Weingast, “Constitutions as Governance Structures: The Political Foundations of Secure Markets,” Journal of Institutional and Theoretical Economics 149 (1993): 286–311; and Weingast, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91 (1997): 245–263. Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978). Douglass North and Barry Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England,” Journal of Economic History 49 (1989): 803–833. See, e.g., Paul Mahoney, “The Common Law and Economic Growth: Hayek Might Be Right,” Journal of Legal Studies 30 (2001): 503–525; Rafael La Porta et al., “Law and Finance,” Journal of Political Economy 106 (1998): 1113–1155; Rafael La Porta et al., “The Quality of Government,” Journal of Law, Economics, and Organization 15 (1999): 222–279; Rafael La Porta et al., “Legal Determinants of External Finance,” Journal of Finance 52 (1997): 1131–1150. Matthew McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28 (1984): 165–179; Matthew McCubbins et al., “Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies,” Virginia Law Review 75 (1989): 431–482; Matthew McCubbins et al., “Administrative Procedures as Instruments of Political Control,” Journal of Law, Economics, and Organization 3 (1987): 243–277. James Rogers, “Information and Judicial Review: A Signaling Game of Legislative-Judicial Interaction,” American Journal of Political Science 45 (2001): 84–99. Judicial review in Canada is not limited to review within the context of concrete adversary litigation. The reference procedure allows both federal and provincial governments in Canada to refer proposed statutes or even questions concerning hypothetical legal situations to the Supreme Court or the provincial courts of appeal for an advisory (abstract) opinion on their constitutionality. Stefan Voigt and Eli Salzberger, “Choosing Not to Choose: When Politicians Choose to Delegate Powers,” Kyklos 55 (2002): 289–310, 294. See also Morris Fiorina, “Legislative Choice of Regulatory Forms: Legal Process of Administrative Process,” Public Choice 38 (1982): 33–66. Mark Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35–73. William Landes and Richard Posner, “The Independent Judiciary in an Interest Group Perspective,” Journal of Law and Economics 18 (1975): 875–901; Mark Crain and Robert Tollison, “Constitutional Change in an Interest-Group Perspective,” Journal of Legal Studies 8 (1979): 165–175; Eli Salzberger, “A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?” International Review of Law and Economics 13 (1993):

Notes to Pages 41–47

27.

28. 29.

30.

31. 32.

33. 34. 35. 36. 37. 38. 39. 40.

41. 42. 43.

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349–379; Eli Salzberger and Paul Fenn, “Judicial Independence: Some Evidence from the English Court of Appeal,” Journal of Law and Economics 42 (1999): 831–847. J. Mark Ramseyer, “The Puzzling (In)Dependence of Courts: A Comparative Approach,” Journal of Legal Studies 23 (1994): 721–748. See also J. Mark Ramseyer and Eric Rasmusen, “Why Are Japanese Judges So Conservative in Politically Charged Cases?” American Political Science Review 95 (2001): 331–344. See Terry Moe, “Political Institutions: The Neglected Side of the Story,” Journal of Law, Economics, and Organization 6 (1990): 213–253. See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003); and “Economic Analysis and the Design of Constitutional Courts,” Theoretical Inquiries in Law 3 (2001): 49–85. See Pedro Magalhaes, “The Limits to Judicialization: Legislative Politics and Constitutional Review in the Iberian Democracies” (Ph.D. diss., Ohio State University, 2002), 21. Id. See Pilar Domingo, “Judicial Independence: The Politics of the Supreme Court of Mexico,” Journal of Latin American Studies 32 (2000): 117. See also Bruce Rutherford, “The Origins of Judicial Independence in the Developing World,” paper presented at the APSA Annual Meeting, Philadelphia 2003. See, e.g., John Goodman, The Politics of Central Bank Independence (Ithaca, N.Y.: Cornell University Press, 1992). See, e.g., Sylvia Maxfield, “Financial Incentives and Central Bank Authority in Industrializing Nations,” World Politics 46 (1994): 556–588. Michael Maloney and Robert McCormick, “A Positive Theory of Environmental Quality Regulation,” Journal of Law and Economics 25 (1982): 99–127. See, e.g., Geoffrey Garrett, “The Politics of Legal Integration in the European Union,” International Organization 49 (1998): 171–181. Andrew Moravcsik, “The Origins of Human Rights Regimes,” International Organization 54 (2000): 217–252. See Pinai Nanakorn, “Re-Making of the Constitution in Thailand,” Singapore Journal of International and Comparative Law 6 (2002): 90–115. Miles Kahler, “Conclusion: The Causes and Consequences of Legalization,” International Organization 54 (2000): 661–683, 663. Moravcsik, “The Origins of Human Rights Regimes,” 220. A fairly recent example that appears to support this thesis is the voluntary incorporation of ten major international human rights covenants into Argentinian constitutional law in 1994. See David Schneiderman, “Investment Rules and the New Constitutionalism,” Law and Social Inquiry 25 (2000): 757–787. Id., 758–759. Stephen Gill, “Globalization, Market Civilization, and Disciplinary Neoliberalism,” Millennium 24 (1995): 399–423, 412.

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Notes to Pages 47–52

44. William N. Eskridge, “Reneging on History? Playing the Court/Congress/President Civil Rights Game,” California Law Review 79 (1991): 613–684; Cornel Clayton and Howard Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999); Lee Epstein and Jack Knight, The Choices Justices Make (Washington D.C.: CQ Press, 1998); Lee Epstein and Jack Knight, “Towards a Strategic Revolution in Judicial Politics: A Look Back, a Look Ahead,” Political Research Quarterly 53 (2000): 625–661. 45. Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997), 119. 46. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279–295. 47. Recent studies have identified a pattern of clusters of blunt anti-government judgments occurring during periods of frail political regimes, most frequently during the last days of condemned dictatorships or toward the end of weak democratic governments. See Gretchen Helmke, “The Logic of Strategic Defection: Court-Executive Relations in Argentina under Dictatorship and Democracy,” American Political Science Review 96 (2002): 291–303. 48. For an elaboration of this point see Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford: Oxford University Press, 2001). 49. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 158. 50. Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation,” Indiana Law Journal 74 (1999): 820–892, 820. 51. Anne-Marie Slaughter, “A Typology of Transjudicial Communities,” University of Richmond Law Review 29 (1994): 99–134, 99.

3. Hegemonic Preservation in Action 1. As of January 2003, Israel’s population was estimated at 6.8 million, of which approximately 5.5 million (approximately 81 percent) were Jews and 1.3 million (approximately 19 percent) were non-Jews. Of the non-Jews, approximately 950,000 were Moslems, 230,000 Christians, and 90,000 Druze. Of the Jewish population, approximately 55 percent were of Ashkenzi descent and approximately 45 percent were of Mizrahi (or Sepharadi) descent. For further discussion of these demographic trends, see Ayelet Shachar, “Whose Republic? Citizenship and Membership in the Israeli Polity,” Georgetown Immigration Law Journal 13 (1999): 233–272. See also “After Zionism,” a special survey on Israel published in the Economist, April 25, 1998). 2. In practice, this exclusive recognition meant that there was an Orthodox nearmonopoly over the rabbinical court system and the provision of formally recognized religious services in Jewish communities. 3. D. K. (Knesset Records 1950) 1743 [Hebrew]. 4. These nine include Basic Law: The Knesset (1958, amended 1985); Basic Law:

Notes to Pages 52–57

5.

6.

7. 8. 9. 10.

11. 12.

13. 14. 15.

16.

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Israel Lands (1960); Basic Law: The President of the State (1964); Basic Law: The Government (1968; replaced by a new version in 1992); Basic Law: The State Economy (1975); Basic Law: The Army (1976); Basic Law: Jerusalem Capital of Israel (1980); Basic Law: The Judiciary (1984); and Basic Law: The State Comptroller (1988). The framework for this type of administrative review was established in 1953 in the seminal case of Kol Ha’am v. Minister of the Interior (H.C. 73/53 7(2) P.D. 871). This case concerned the validity of a temporary closing decree issued by the Minister of the Interior against the official newspaper of the Israeli Communist Party. The Court nullified the decree and held that due to the primary status of free speech in a democracy, the minister could apply discretion only when there was a “near certainty” of risk to public safety. Cited in Pnina Lahav, “Rights and Democracy: The Court’s Performance,” in E. Sprinzak and L. Diamond, eds., Israeli Democracy Under Stress (Boulder: Lynne Rienner Publishers, 1993), 131. Cited in Pnina Lahav, “Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat’s Legacy,” Israel Law Review 24 (1990): 211–265, 226. Gary Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1993), 98. Basic Law: The Government (1992). The leading members of this group were law professor A. Rubinstein (Meretz), law professor D. Libai (Labor), Minister of Justice D. Meridor (Likud), U. Linn (Likud), A. Poraz (Meretz), M. Shahal (Labor), and S. Aloni (Meretz), all of whom have formal legal education. The dominant figures in Israel’s legal academy took a strong positive position in the debate over the enactment of the new laws and supported the political attempt to enact major civil liberty legislation in Israel. Among the dominant academic figures who enthusiastically supported the new laws and promoted their enactment were law professors U. Reichman, B. Bracha, D. Friedman, K. Mann, A. Maoz, A. Shapira, and A. Rozen-Zvi; business professor D. Pekelman; and political science professors D. Elazar and B. Zisser. See D. K. (Knesset Records 1991–1992) [Hebrew]. It is estimated that between 1989 and 2000 approximately one million immigrants came to Israel from the former Soviet Union and about 50,000 came from Ethiopia. In 1990 alone, 185,200 Jews arrived from the former Soviet Union, and in 1991 an additional 147,800 arrived. For further discussion, see Israel’s Social Insurance Institute Annual Report 2000–2001 (published in December 2001; www.btl.gov.il). See Yoav Peled, “Towards a Redefinition of Jewish Nationalism in Israel? The Enigma of Shas,” Ethnic and Racial Studies 21 (1998): 709–710. Yoav Peled and Gershon Shafir, “The Roots of Peacemaking: The Dynamics of Citizenship in Israel, 1948–1993,” International Journal of Middle Eastern Studies 28 (1996): 391–413. Though it lacks formal status, a Halakhic verdict enjoys wide public support de facto among believers. Even if we classify Tzomet (which represents extreme right-wing views with

234

17.

18.

19. 20.

21.

22.

23. 24.

25. 26. 27.

Notes to Pages 57–67 regard to the peace process, combined with a “secularist” agenda) as belonging to the bloc representing established interests and constituencies, the decline in the relative power of the these interests is still significant (from 95 MKs in 1981 to 68 in 1996). Note that while most upper-middle-class Mizrahi Jews have been voting for Likud for the past twenty-five years, poor Mizrahi Jews have increasingly been shifting their votes to Gesher and Shas. For a detailed account of this phenomenon, see Peled, “Towards a Redefinition of Jewish Nationalism in Israel?” See, e.g., Yoav Peled and Gershin Shafir, “Peace and Profits: The Globalization of Israeli Business and the Peace Process,” in G. Shafir and Y. Peled (eds), The New Israel: Peacemaking and Globalization (Boulder: Westview, 2000); Michael Shalev “Liberalization and the Transformation of the Political Economy,” in Shafir and Peled, The New Israel; Yair Aharoni, “The Changing Political Economy of Israel,” Annals of the AAPSS 555 (1998): 127–146. See “Foreign Workers Flood into Israel; Fighting Opens Ex-Palestinian Jobs,” Chicago Tribune, July 15, 2002, 1. Guy Bechor, Constitution to Israel: A Story of a Fight (Or Yehuda: Sifriyat Ma’ariv, 1996) [Hebrew]; Aharon Barak, “A Constitutional Revolution: Israel’s Basic Laws,” Constitutional Forum 4 (1993): 83–84. Aharon Barak, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law,” Israel Law Review 31 (1997): 3. On the SCI’s failure to adequately protect, let alone enhance, the status of Arab-Israeli citizens, Bedouins, and Arab residents of the Occupied Territories, see my discussion in Chapters 4 and 5. “The Cunning of History,” Boston Review 26, (December 2001–January 2002). See Ran Hirschl, “Civil Society v. The State of Israel: Two Conceptions of Civil Society and the Israeli Supreme Court’s Constitutional Jurisprudence,” in Y. Peled and A. Ophir, eds., Israel: From Mobilized to Civil Society? (Jerusalem: Van Leer Institute, 2001) [Hebrew]; Dan Avnon, “The Enlightened Public: Jewish and Democratic or Liberal and Democratic?” Mishpat U’Mimshal 3 (1996): 113– 149 [Hebrew]; Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law (Tel-Aviv: Ma’agaley Da’at, 1993) [Hebrew] and “The Reasonableness of Politics,” Theory and Criticism 5 (1994): 25–53 [Hebrew]; and Ronen Shamir, “The Politics of Reasonableness: Reasonableness and Judicial Power at Israel’s Supreme Court,” Theory and Criticism 5 (1994): 7–24 [Hebrew]. These were Y. Modai, M. Nisim, A. Rubinstein, D. Meridor, D. Libai, Z. Ha’negbi, Y. Beilin, M. Shitreet, and Y. Lapid. Ten were born in Poland, nine in Germany, eight in Israel, six in Russia and Lithuania, and one each in Iraq, England, and the United States. Professor Yitzhak Englard was appointed in 1997 and replaced Justice Tsvi Tal, who had strongly objected to the constitutionalization of rights and the expansion of judicial power in Israel. Another soft-line observant member of the

Notes to Pages 67–71

28.

29. 30. 31.

32.

33.

34. 35.

36.

37. 38. 39.

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Court, the recently appointed Justice Ya’akov Tirkel, has long been a personal friend of Chief Justice Aharon Barak. Local and municipal religious councils are publicly funded statutory bodies supervising most religious affairs and services at the community level (e.g., the operation of synagogues and religious ceremonies and the enforcement of Sabbath closing laws and Kashrut laws). The 1967 Religious Council Law provides that 45 percent of the members be appointed by the Minister of Religious Affairs, another 45 percent by the local authority, and 10 percent by the local rabbi. The members are to be observant Jews, but the appointment system was meant to reflect the ethnic and political composition of the community. H.C. 5364/94 Velner et al. v. Rabin et al., 49(1) P.D. 758. H.C. 3094/93 Movement for Government Quality v. Prime Minister, 47(5) P.D. 404; H.C. 4267/93 Amitai v. Prime Minister, 47(5) P.D. 441. For example, the nullification (on formal equality grounds) of governmentfunded affordable housing projects targeted exclusively at poor Orthodox communities and the nullification of a Knesset law formally recognizing the operation of unlicensed radio stations (e.g., Channel 7) catering primarily to Orthodox Mizrahi constituencies. James Gibson et al., “On the Legitimacy of National High Courts,” American Political Science Review 92 (1998): 343–358; William Mishler and Reginald Sheehan, “The Supreme Court as Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions,” American Political Science Review 87 (1993): 87–101. International Social Science Program (ISSP), Study 2150 (Köln, Germany: Zentralarchiv fur Empiriche Sozial Forschung, May 1993, on file with author). This comparative study was based on a representative sample of the adult population in eight western countries. On a scale of 1 to 5 (1 = absolute confidence in the legal system; 5 = no confidence), the faith of Israelis in their legal system was ranked first (2.21). Germany was ranked third (2.65); the United States fifth (3.03); and Britain sixth (3.13). Id.: 29 percent of the respondents had “absolute confidence” in the legal system; 38.6 percent had “confidence” in the legal system. Yohanan Peres and Ephraim Yuchtman-Yaar, Between Consent and Dissent: Democracy and Peace in the Israeli Mind (Jerusalem: Israeli Democracy Institute, 1998) [Hebrew], 59. Quoted in the New York Times, August 28, 1996; cited in Gary Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2003), 248. H.C. 5016/96 Horev v. Minister of Transportation, 51(4) P.D. 1. Cited in Ha’Aretz (English edition), July 12, 2000. It is interesting to note that while many religious leaders participated in the anti-Court demonstration, a cross-party coalition of important political leaders representing Israel’s secular bourgeoisie also gathered in Jerusalem in a proCourt demonstration.

236 40. 41. 42. 43.

44. 45.

46.

47.

48.

49.

50.

51.

Notes to Pages 71–77 Cited in Ha’Aretz (English edition), February 11, 1999 (www.haaretz.co.il/eng). Id. Cited in Ha’Aretz (English edition), January 4, 2002. See, e.g., Jeffrey Mondak and Shannon Ishiyama Smithey, “The Dynamics of Public Support for the Supreme Court,” Journal of Politics 59 (1997): 1114– 1142. Id., 1131. Canada’s demographics have changed dramatically over the past thirty years. Eighteen percent of the population is now foreign born (compared with about 11 percent in the United States). Toronto, once a homogeneous city of staid British tradition, now counts more than 40 percent of its people as foreign born. Approximately one-third of Montreal’s and Vancouver’s population is foreign born. Reference Re: Alberta Statutes [1938] S.C.R. 100. Although the doctrine received some support, it never commanded a majority and was repudiated by the Supreme Court of Canada in 1978. The 1960 Bill of Rights was adopted by the newly elected Conservative government of John Diefenbaker. As a nonentrenched document, it had no supremacy over other federal legislation. As an ordinary federal act, it applied only to matters falling under federal jurisdiction. The bill’s recognition of rights and freedoms that “have existed and shall continue to exist” discouraged judicial creativity in the definition and enforcement of rights and liberties. Between 1960 and 1981, only 34 Bill of Rights cases reached the Supreme Court of Canada. Throughout that period, the Court struck down only one statute (R. v. Drybones, 1970) based on the 1960 Bill of Rights. This was a failed proposal for constitutional overhaul whose main components were the adoption of a minicharter of rights protecting certain political and language rights; constitutional recognition of regional representation in the SCC; and the adoption of a new amending formula. See generally F. L. Morton, “The Effect of the Charter of Rights on Canadian Federalism,” Publius 25 (1995): 173–188; Allan Hutchinson, Waiting for CORAF: A Critique of Law and Rights (Toronto: University of Toronto Press, 1995); Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, 2nd ed. (Toronto: Thompson Educational Publishing, 1994); Christopher Manfredi, Judicial Power and the Charter (Toronto: Oxford University Press, 2001); F. L. Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,” Canadian Journal of Political Science 20 (1987): 30–55; and F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, 2nd ed. (Peterborough, Ont.: Broadview Press, 2000). Chapter 11 of NAFTA provides foreign companies with the right to sue any signatory of the agreement for actions taken against their property by that government that are tantamount to expropriation. See, e.g., Gregory Hein, “Interest Group Litigation and Canadian Democracy,” in P. Howe and P. Russell, eds., Judicial Power and Canadian Democracy (Montreal: McGill–Queen’s University Press, 2001).

Notes to Pages 78–83

237

52. Pierre E. Trudeau, Federalism and the French Canadians (Toronto: Macmillan, 1968), 197. 53. The Quebec Bill 101 (Charte de la langue française), enacted by the Parti Québécois government in 1977, was meant to promote the use of French in Quebec by restricting the use of English in businesses and schools in the province. 54. No member of any visible minority group has ever been appointed to the Supreme Court of Canada. 55. A few leading examples for this trend are: Munro v. National Capital Commission, [1966] S.C.R. 663; Reference Re: Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference Re: Anti-Inflation Act, [1976] 2 S.C.R. 373; R. v. Hauser, [1979] 1 S.C.R. 984; R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401; and Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327. 56. A few examples of this trend are: R. v. Klassen, (1959) 20 D.L.R. 406; Caloil v. Canada, [1971] S.C.R. 543; Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689; Central Canada Potash v. Saskatchewan, [1979] 1 S.C.R. 42; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641. 57. Cited in the Globe and Mail, April 13, 2002, A11. 58. See also David Beatty, “The Canadian Charter of Rights: Lessons and Laments,” Modern Law Review 60 (1997): 481–498; Morton, “The Effect of the Charter of Rights on Canadian Federalism”; Hutchinson, Waiting for CORAF; Mandel, The Charter of Rights and the Legalization of Politics in Canada; Judy Fudge and Harry Glasbeek, “The Politics of Rights: A Politics with Little Class,” Social and Legal Studies 1 (1992): 45–70. 59. Joseph Fletcher and Paul Howe, “Canadian Attitudes toward the Charter and the Courts in Comparative Perspective,” Choices 6:3 (May 2000): 4–29, 16. 60. Peter Russell, “Canada’s Charter: A Political Report,” Public Law (1988): 385– 410, 398; Fletcher and Howe, “Canadian Attitudes toward the Charter,” 12– 13. 61. “Canadians Feel Supreme Court Tainted by Partisan Politics,” Globe and Mail, July 3, 2001, A1. 62. Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven: Yale University Press, 1984), 19. 63. Arend Lijphart, “The Demise of the Last Westminster System?” Electoral Studies 6 (1987): 2–26. 64. The Human Rights Act 1993 prohibits discrimination on the basis of sex, marital status, religious belief, ethical belief, color, race, ethnic or national origin, disability, age, political opinion, employment status, or family status. The Privacy Act 1993 aims to protect individuals by regulating the disclosure of information about them. See my discussion of the corresponding Human Rights Amendment Act 2001 in Chapter 2. 65. New Zealand’s exports to the United Kingdom declined from 53 percent of New Zealand’s total exports in 1960 to 6.2 percent of New Zealand’s total exports in 1995.

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Notes to Pages 84–88

66. For detailed accounts of these developments, see, e.g., C. Rudd and B. Roper, eds., The Political Economy of New Zealand (Auckland: Oxford University Press, 1997); most of the articles in Policy Analysis and Management 16:3 (1997); Jack Nagel, “Social Choice in a Pluralitarian Democracy: The Politics of Market Liberalization in New Zealand,” British Journal of Political Science 28 (1998): 223– 267; Lewis Evans et al., “Economic Reform in New Zealand, 1984–1995: The Pursuit of Efficiency,” Journal of Economic Literature 34 (1996): 1856–1902; and most of the essays in Jonathan Boston et al., Public Management: The New Zealand Model (New York: Oxford University Press, 1996). 67. Paul Dalziel, “Economic Policy,” in R. Miller, ed., New Zealand Government and Politics (Auckland: Oxford University Press, 2001), 410–411. 68. Raymond Miller, “Labour,” in Miller, New Zealand Government and Politics, 230. 69. Id., 229. 70. The tribunal has the authority to determine the meaning of the treaty for today and to find practical solutions to acknowledged grievances. 71. See Nagel, “Social Choice in a Pluralitarian Democracy,” 234, for data on the 1943–1993 period. I updated the data provided by Nagel to include the results of the 1996 and 1999 elections. 72. Keith Jackson and Alan McRobie, New Zealand Adopts Proportional Representation: Accident? Design? Evolution? (Aldershot: Ashgate, 1998), 11–12. 73. Geoffrey Palmer, “A Bill of Rights for New Zealand,” in K. J. Keith, ed., Essays on Human Rights (Auckland: Oxford University Press, 1968), 106, 107. 74. These included Prime Minister Geoffrey Palmer (hitherto the Minister of Justice of the Lange government), Roger Douglas (the Minister of Finance), and David Caygill (the Associate Finance Minister, who left the National Party in 1970s with Palmer), backed by the explicitly neoliberal leadership of the postMuldoon National Party and the new libertarian New Zealand Party led by Bob Jones (described by Jack Nagel as a Ross Perot–like self-made millionaire property developer). See Nagel, “Social Choice in a Pluralitarian Democracy,” 239. 75. See, e.g., Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand Government under MMP (Auckland: Oxford University Press, 1997); Paul Rishworth, “Human Rights and the Bill of Rights,” New Zealand Law Review 17 (1996): 298–324; and Philip Joseph, “The New Zealand Bill of Rights Act 1990,” Public Law Review 7 (1996): 76–91. 76. These included the rights to an adequate standard of living, health care, and housing; rights to work and education; and the “right to participate in the cultural life of the community.” 77. Geoffrey Palmer, “Westco Lagan v. A-G,” New Zealand Law Journal (May 2001): 168. 78. Note that as of June 2003 six of the NZCA’s seven justices were white males. Of the thirty-four judges on New Zealand’s seven High Courts (the second highest legal institution), only five are women. No Maoris, Pacific Islanders, or Asians have been appointed to these courts. 79. Dame Sian Elias, “The Treaty of Waitangi and the Separation of Powers in New

Notes to Pages 88–95

80. 81.

82. 83. 84. 85.

86. 87. 88. 89.

90.

91.

92. 93. 94.

95. 96.

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Zealand,” in B. D. Gray and R. B. McClintock, eds., Courts and Policy: Checking the Balance (Auckland: Brookers, 1995), 224. Palmer, “Westco Lagan v. A-G,” 166. The literature dealing with the constitutional aspects of the abolition of apartheid in South Africa is vast. For three general accounts of the struggle concerning the new constitution in South Africa, see P. Andrews and S. Ellmann, eds., The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law (Athens: Ohio University Press, 2001); Siri Gloppen, South Africa: The Battle over the Constitution (Aldershot: Ashgate, 1997); and T. D. Sisk, Democratization in South Africa (Princeton: Princeton University Press, 1995). Quoted by H. R. Hahlo and E. Kahn, South Africa: The Development of Laws and the Constitution (Cape Town: Juta, 1960), 109. Cited in Alfred Cockrell, “The African Bill of Rights and the ‘Duck/Rabbit,’” Modern Law Review 60 (1997): 522. Michael Beatton, “South Africa,” in J. Kopstein and M. Lichbach, eds., Comparative Politics (Cambridge: Cambridge University Press, 2000), 390. Although the judicial ranks in post-apartheid South Africa are now more reflective of the ethnic profile of the society than they were a decade ago, they still fall far short of representative composition. As of 2003, the High and Constitutional Courts are staffed mostly by whites: of the 194 judges in question, 129 are white. Of the 11 Constitutional Court judges, 6 are white. South African Law Commission, No. 25, Project 58, Working Paper on Group and Human Rights Law (1989). Id., 296. Constitution of the Republic of South Africa, Act 200 of 1993. Cited in Dennis Davis, “Deconstructing and Reconstructing the Argument for a Bill of Rights within the Context of South African Nationalism,” in Andrews and Ellmann, The Post-Apartheid Constitutions, 207. Roelf Meyer, “From Parliamentary Sovereignty to Constitutionality: The Democratization of South Africa, 1990 to 1994,” in Andrews and Ellmann, The Post-Apartheid Constitutions, 58. Section 25(1) of the 1996 Constitution reads: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” See section 25(8). The “limitation clause” is section 36(1) of the 1996 Constitution. Section 29(2) of the 1996 Constitution. Michael Mandel, “A Brief History of the New Constitutionalism, or ‘How we changed everything so that everything would remain the same’,” Israel Law Review 32 (1998): 250–300. Id., 278. The Freedom Charter was adopted by the Congress of the People in 1955. Its preamble reads: “The People shall Share in the Country’s Wealth: The national wealth of our country, the heritage of all South Africans, shall be restored to

240

97. 98.

99.

100.

Notes to Pages 96–101 the people; The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole; All other industries and trade shall be controlled to assist the well-being of the people; The Land shall be Shared among those who Work it: Restriction of land ownership on racial basis shall be ended, and all the land re-divided amongst those who work it, to banish famine and land hunger.” Cited in Nelson Mandela, Long Walk to Freedom (Boston: Little, Brown and Co., 1994), 151–153. Ian Shapiro, “On the Normalization of South African Politics,” Dissent (Winter 1999): 33. Amazingly, 20 percent of blacks polled in a survey released in December 2002 approved of how South Africa was governed during the apartheid years, up from 8 percent in 1995. See “Disillusion Rises among South Africa’s Poor,” New York Times, December 31, 2002, p. A4. See Vivien Hart, “The Contagion of Rights: Constitutions as Carriers,” in P. Hanafin and M. Williams, eds., Identity, Rights, and Constitutional Transformation (Aldershot: Ashgate, 1999); Kathryn Firmin-Sellers, “The Politics of Property Rights,” American Political Science Review 89 (1995): 867–881; and FirminSellers, The Transformation of Property Rights in the Gold Coast (Cambridge: Cambridge University Press, 1996). In 1980, Article 2 of Egypt’s Constitution was amended to allow for principles of Islamic jurisprudence to become the main source of legislation in Egypt. This meant that no legislation could be passed that contravened Islamic legal principles. Following the establishment of judicial review in 1979 and the 1980 constitutional amendment, the Egyptian Supreme Constitutional Court has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari’a. The question before the Court in all of these cases has concerned which principles of the Shari’a possess determinative and absolute authority. In many of these cases, the Court adopted a fairly progressive interpretation of Shari’a rules. For two leading examples, see Wassel v. Minister of Education (the Niq’ab [veil] Case), No. 8 of the 17th judicial year (May 18, 1996); and the Riba [usury or interest] Case, No. 20, 1st judicial year (May 4, 1986).

4. Constitutionalization and Judicial Interpretation of Rights 1. The literature on this subject is too vast to cite in full. For examples representing different theoretical approaches, see Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997); Jack Knight and Lee Epstein, “On the Struggle for Judicial Supremacy,” Law and Society Review 30 (1996): 87–120; William Mishler and Reginald Sheehan, “The Supreme Court as Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions,” American Political Science Review 87 (1993): 87–101; Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional

Notes to Pages 101–109

2.

3.

4. 5.

6. 7.

8.

9.

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Law (Cambridge, Mass.: Harvard University Press, 1988); Harold H. Koh, “Why the President (almost) Always Wins in Foreign Affairs,” Yale Law Journal 97 (1988): 1255–1342; and Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279–295. See the notorious Dred Scott v. Sanford, 60 U.S. 393 (1856). In this case the Court held that “[the Negro is] bought and sold, and treated as an ordinary article of merchandise and traffic” and that therefore “the power of Congress over the [slave] property of a citizen can never be a mere discretionary power.” During the “Lochner Era” alone (roughly 1885–1930), the U.S. Supreme Court struck down some 150 pieces of legislation concerning labor relations, labor conditions, and working hours. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944). Section 2 of the Smith Act. See American Communications Association v. Douds, 339 U.S. 382 (1950); Dennis v. United States, 341 U.S. 494 (1951). In Yates v. United States, 354 U.S. 298 (1957), the Court, in a 6–1 decision, overturned the convictions of several members of the Communist Party for conspiracy to violate the Smith Act. See also the First Amendment cases of the Lochner Era—Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Gitlow v. People of the State of New York, 268 U.S. 652 (1925). San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). In Buckley v. Valeo, 424 U.S. 1 (1976), the Court struck down campaign finance reform that placed spending limits on political candidates and so-called third parties on the ground that such limits violate the First Amendment’s guarantee of free speech. In U.S. v. Lopez, 514 U.S. 549 (1995), the Court held that Congress had exceeded its constitutional authority in forbidding students from carrying handguns in local public schools. In City of Richmond v. J. A. Croson, 488 U.S. 469 (1989), and in Adarand Constructions, Inc. v. Pena, 515 U.S. 200 (1995), the Court placed almost all meaningful affirmative action and “set-aside” schemes beyond the bounds of constitutional protection. In Shaw v. Reno, 509 U.S. 630 (1993), the Court held that congressional districts created to maximize minority representation might be unconstitutional on equal protection grounds. See Charles Fried, Right and Wrong (Cambridge, Mass.: Harvard University Press, 1978), 110. Cecile Fabre relies on the “duty distinction” to distinguish between negative and positive rights: “Some rights are negative in that they ground negative duties only, while other rights are positive in that they only ground positive duties to help and resources”: Fabre, “Constitutionalising Social Rights,” Journal of Political Philosophy 6 (1998): 263–284, 264. See also Cecile Fabre, Social Rights under the Constitution (Oxford: Clarendon Press, 2000). The actual percentage of legal rights cases in New Zealand and Israel was likely higher than these figures suggest, because some “routine” New Zealand Court of Appeal and Israeli Supreme Court cases dealing with arrest and detention

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11.

12. 13.

14. 15.

16. 17. 18.

19. 20.

Notes to Pages 110–112 were not reported in the official publications of judicial decisions in either country. C.F.H 2316/95 G’nimmat v. State of Israel, 49(4) P.D. 589; C.A. 1302/92 State of Israel v. Nahamias, 49(3) P.D. 309; H.C. 5304/92 Society for Law Victims v. Minister of Justice, 47(4) P.D. 715. On the impact of the constitutional revolution on procedural criminal law in Israel, see Aharon Barak, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law,” Israel Law Review 31 (1997): 3–21; and Emanuel Gross, “The New Constitutional Rights of the Defendant in Israel,” Bar-Ilan Law Studies 13 (1996): 155–182 [Hebrew]. On the SCI’s record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002), and Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview, 1990); Menachem Hofnung, Democracy, Law, and National Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press, 1995); Ronen Shamir, “Suspended in Space: Bedouins under the Law of Israel,” Law and Society Review 30 (1996): 231–257; and Ronen Shamir, “Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice,” Law and Society Review 24 (1990): 781–804. H.C. 5973/92 Association of Civil Rights in Israel v. Minister of Defense, 47(1) P.D. 267. H.C. 2581/91 Salhat v. The Government of Israel, 47(4) P.D. 837; H.C. 7964/95 Bilbisi v. General Security Service (decision released on Jan. 11, 1996); H.C. 8049/96 Hamdan v. General Security Service (decision released on November 14, 1996); H.C. 3124/96 Mubarak v. General Security Service (decision released on November 17, 1996). H.C. 5100/94 Public Committee Against Torture in Israel et al. v. State of Israel et al., 53(4) P.D. 817. Internal security regulations from 1987 allowed security forces to apply “moderate physical pressure” to suspects during interrogation. In 1994, following a series of suicide bombings, the government further eased restrictions on the use of physical force against suspects who might have knowledge of imminent terrorist attacks. The death in custody of several Palestinian detainees highlighted the practice of violently shaking some detainees to obtain evidence. A.C.H. 7048/97 Almoni (“John Doe”) v. Minister of Defense, 54(1) P.D. 721. H.C. 6055/95 Sagi Zemach v. Minister of Defense, 53(5) P.D. 241. Many of the NZBORA cases concerning criminal due process rights and remedies for their breaches were recently summarized in R v. Grayson and Taylor, [1997] 1 NZLR 399. R v. Kirifi, [1992] 2 NZLR 8; R v. Butcher, [1992] 2 NZLR 257. Ministry of Transport v. Noort, [1992] 3 NZLR 260.

Notes to Pages 112–114

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21. R v. Goodwin, [1993] 2 NZLR 153; R v. Te-Kira, [1993] 3 NZLR 257; R v. Pratt, [1994] 3 NZLR 21. 22. R v. Jefferies, [1994] 1 NZLR 290; R v. A, [1994] 1 NZLR 429; R. v. Grayson and Taylor, [1997] 1 NZLR 399. The Court’s generous interpretation of the NZBORA provisions protecting procedural due process rights is evident even in the Grayson ruling, where the Court handed down a slightly narrower interpretation of search and seizure NZBORA guarantees than had been adopted earlier in the Jefferies case. 23. Martin v. Tauranga District Court, [1995] 2 NZLR 419, reversing [1995] 1 NZLR 491. See also R. v. Donaldson, [1995] 3 NZLR 641. 24. R v. Pora,[2001] 2 NZLR 37. See also R v. Poumako, [2000] 2 NZLR 695. 25. Simpson v. Attorney-General, [1994] 3 NZLR 667. 26. The Court of Appeal awarded monetary compensation for breaches of the NZBORA in several other cases. See, e.g., Auckland Unemployed Workers’ Rights Centre Inc. v Attorney-General, [1994] 3 NZLR 720. 27. S v. Zuma, 1995 (2) SA 642 (CC). 28. S v. Makwanyane, 1995 (3) SA 391 (CC); S v. Williams, 1995 (3) SA 632 (CC). 29. Mohamed v. President of the Republic of South Africa, 2001 (3) SA 893 (CC). The Court stated that “South Africa cannot expose a person to the risk of execution, whether by deportation or extradition and regardless of consent.” For a similar SCC ruling see United States v. Burns, [2001] 1 S.C.R. 283. 30. Christian Education South Africa v. Minister of Education, 2000 (4) SA 757 (CC). 31. See, e.g., S v. Bhulwana, 1996 (1) SA 388 (CC); S v. Mbhata, 1996 (2) SA 464 (CC); S v. Julies, 1996 (7) BCLR 899 (CC); and most recently S v. Singo, 2002(4) SA 858 (CC). 32. Sanderson v. Attorney General, Eastern Cape, 1998 (2) SA 38 (CC); S v. Vermaas, 1995 (3) SA 292 (CC); Shabalala v. Attorney General, Transvaal, 1996 (1) SA 725 (CC). In all of these cases, the SACC rescinded clauses that provided that if illegal drugs, arms and ammunition, etc. were found in the immediate vicinity of a person, it shall be presumed, until the contrary is proved, that the arms and stolen articles were in possession of that person and that such a person has been dealing in the banned substance, stolen articles, etc. 33. S v. Niemand 2001 (11) BCLR 1181 (CC). Any punishment involving imprisonment, stated the Court, must prescribe the maximum period of incarceration. 34. S v. Steyn, 2001 (1) SA 1146 (CC). 35. S v. Motloutsi, 1996 (1) SA 584 (CC). 36. Mistry v. Interim National Medical and Dental Council of South Africa, 1998 (4) SA 1127 (CC). 37. For a comprehensive analysis of the SCC’s procedural rights adjudication, see Kent Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto Press, 1999); Roach, “The Effects of the Canadian Charter of Rights on Criminal Justice,” Israel Law Review 33 (1999):

244

38.

39. 40. 41.

42. 43. 44. 45. 46.

47. 48. 49. 50. 51. 52. 53.

54. 55.

56. 57.

Notes to Pages 114–120 607–637; and Don Stuart, Charter Justice in Canadian Criminal Law, 3rd ed. (Scarborough, Ontario: Carswell, 2001). Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Note that whereas three justices based their decision on section 7 of the Charter, three other justices reached the same outcome based on the more specific section 2(e) of the statutory Canadian Bill of Rights 1960, which protects the “right to a fair hearing.” See also Baker v. Canada, [1999] 2 S.C.R. 877. Askov v. The Queen, [1990] 2 S.C.R. 1199. R. v. Stinchcombe, [1991] 3 S.C.R. 326. For further discussion see G. Owen, “Disclosure after Stinchcombe,” in A. Peacock, ed., Rethinking the Constitution (Oxford: Oxford University Press, 1996). A recent example is R. v. Noël, 2002 SCC 67 (decision released on October 31, 2002). The Queen v. Lavalee et al., 2002 SCC 61 (decision released on Sept. 12, 2002). United States of America v. Cobb, [2001] 1 S.C.R. 587; United States of America v. Shulman, [2001] 1 S.C.R. 616. R. v. Feeney, [1997] 2 S.C.R. 117. In a similar spirit, the SCC held recently that conducting a strip search in a public space of suspects in drug trafficking and selling contravened the Charter’s privacy provisions. The incriminating evidence gathered through such searches was held inadmissible. See R. v. Golden, [2001] 3 S.C.R. 679. R. v. Seaboyer, [1991] 2 S.C.R. 577. R. v. O’Connor, [1995] 4 S.C.R. 411. See also R. v. Daviault, [1994] 3 S.C.R 63. R. v. Mills, [1999] 3 S.C.R. 668. R v. M, [1996] 2 NZLR 659. R v. T, [1999] 2 NZLR 602. R. v. CIP Inc., [1992] 1 S.C.R. 843. The discussion of this case draws on Joel Bakan, Just Words (Toronto: University of Toronto Press 1997), 91–92. In Texas v. Johnson, 491 U.S. 397 (1989), the U.S. Supreme Court relied primarily on the “content neutrality” doctrine to strike down a Texas law that banned flag burning as a form of political protest. In an equally contested decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court unanimously invalidated St. Paul’s hate-speech ordinance that banned cross burning, swastika displays, and other expressions of racial supremacy and held that even within the category of fighting words, governments may not bar or penalize the expression of some, but not other, words based on their content. R. v. Keegstra, [1990] 3 S.C.R. 697. R. v. Zundel, [1992] 2 S.C.R. 731. See also Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. In R. v. Lucas, [1998] 1 S.C.R. 439, the SCC confirmed Zundel, holding that section 2(b) of the Charter protects the dissemination of deliberate falsehoods. R v. Sharpe, [2001] 1 S.C.R. 45. RJR MacDonald Inc. v Canada, [1995] 3 S.C.R. 199.

Notes to Pages 120–125

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58. Moonen v. Film and Literature Board of Review, [2000] 2 NZLR 9. 59. Living Word Distribution Ltd v. Human Rights Action Group Inc. (Wellington), [2000] 3 NZLR 570. 60. Id., 571. 61. Case v. Ministry of Safety and Security, 1997 (3) SA 514 (CC). 62. Islamic Unity Convention v. Independent Broadcasting Authority, 2002 (4) SA 294. 63. Egan v. Canada, [1995] 2 S.C.R. 513. However, the specific discriminatory provision in question was reinstated by the “reasonableness” test of section 1. 64. Vriend v. Alberta, [1998] 1 S.C.R 493. 65. M v. H, [1999] 2 S.C.R. 3. 66. F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, 2nd ed. (Peterborough, Ont.: Broadview Press, 2000), 14. 67. H.C. 721/94 El Al Airlines Ltd. v. Danilowitch et al., 48(5) P.D. 749. 68. H.C. 273/97 Association for the Protection of Individual Rights of Homosexuals, Lesbians, and Bisexuals in Israel et al. v. Minister of Education et al. 51(5) P.D. 822. 69. H.C. 1779/99 Brener-Kadish v. Ministry of Interior, 52(2) P.D. 368. 70. Quilter and Pearl et al. v. Attorney-General, [1998] 2 NZLR, 88. However, the Court noted that it could not interpret the Marriage Act as including same-sex marriages, because such a change in the law must come from the legislature rather than from the judiciary. 71. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC). 72. National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 2000 (2) SA 1 (CC). 73. Satchwell v. President of Republic of South Africa (No. I), 2002(6) SA 1 (CC). See also Satchwell v. President of Republic of South Africa (No. II) (CCT 48/02, decision released on March 17, 2003). 74. Du Toit v. Minister of Welfare and Population Development, 2002(10) BCLR 1006 (CC). 75. The Court added that the provisions denied same-sex spouses due recognition as joint parents and infringed upon the principle of the paramountcy of a child’s best interests. 76. J and B v. Director General, Department of Home Affairs (CCT 46/02, decision released on March 28, 2003). 77. Rulings in the same spirit were recently given by the U.S. Supreme Court in Romer v. Evans, 517 U.S. 620 (1996) and Lawrence et al. v. Texas (decision released June 26, 2003); by the European Court of Human Rights (ECHR) in Smith and Grady v. United Kingdom, Lustig-Prean & Beckett v. United Kingdom (2000) 29 EHRR 493; by the United Nations Human Rights Committee in Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/ D/488/1992 (1994); and by the Hungarian Supreme Court in Decision 14/ 1995 on the Legal Equality of Same Sex Partnerships (decision delivered

246

78.

79.

80.

81.

Notes to Page 126 March 13, 1995). An apparent departure from this trend is the U.S. Supreme Court’s recent ruling in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In a 5–4 decision, the Court held that requiring Boy Scouts of America to uphold the membership and scoutmaster status of an outspoken homosexual violated the organization’s First Amendment right of expressive association. The Court accepted Boy Scouts’ argument that the very presence of gays as scoutmasters would send a message contradicting the organization’s fundamental belief that homosexuality is immoral. “It appears that homosexuality has gained greater social acceptance,” wrote Chief Justice Rehnquist in the Court’s ruling. “But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views.” Despite its outcome, however, Boy Scouts is a textbook example of how deeply embedded is the notion of the demarcated private sphere in the U.S. Supreme Court’s constitutional jurisprudence. The Court’s decision was based on the classification of Boy Scouts of America as a private entity and on the Court’s determination that as a private entity, the organization had the right to impose a certain moral code on its members (who joined voluntarily), however contested that code might be. See e.g., Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); and Jeremy Waldron, “Welfare and the Images of Charity,” Philosophical Studies 36 (1986): 463–482. According to other proponents of the basic-needs scheme, inequalities (even on arbitrary basis) should be allowed, provided that the basic needs of all are met. See e.g., John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999); and David Miller, “Justice and Global Inequality,” in A. Hurrell and N. Woods, eds., Inequality, Globalization, and World Politics (Oxford: Oxford University Press, 1999). The Human Development Report is published annually by the UNDP. It includes updated statistics on a wide variety of human development indicators worldwide. Amartya Sen, “Equality of What?” in S. McMurrin, ed., Tanner Lectures on Human Values (Cambridge: Cambridge University Press, 1980); and Sen, Inequality Reexamined (Cambridge, Mass.: Harvard University Press, 1992). See also Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), 70–101. The Indian Supreme Court, for example, has developed the world’s most comprehensive body of judgments dealing with social welfare rights as protected by the unqualified “right to life” enshrined in the Indian Constitution. In Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180), for example, the Indian Supreme Court held that the right to life, enshrined by article 21 of the Indian Constitution, implies constitutional protection of the right to livelihood and a person’s right not to be deprived of his or her right to livelihood to the point of abrogation. In a similar spirit, the Indian Supreme Court went on to rule in Unni Krishnan v. State of Andhra Pradesh (AIR 1993 SC 2178) that the

Notes to Pages 126–131

82.

83.

84. 85.

86. 87. 88. 89. 90. 91.

92.

93.

94.

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right to basic education to the age of fourteen years is embraced within article 21, thereby elevating the right to education to the status of fundamental right. For a comprehensive discussion of the moral foundations of positive social rights and their constitutional entrenchment in numerous national constitutions and international treaties and covenants see Keith D. Ewing, “Social Rights and Constitutional Law,” Public Law (Spring 1999): 104–126; and Craig Scott and Patrick Macklem, “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution,” University of Pennsylvania Law Review 141 (1992): 1–148. See David Beatty, “The Last Generation: When Rights Lose Their Meaning,” in D. Beatty, ed., Human Rights and Judicial Review: A Comparative Perspective (Dordrecht; Boston: M. Nijhoff, 1994); and Michael Zander, A Bill of Rights? 4th ed. (London: Sweet and Maxwell, 1997), 40–69. See, e.g., Stephen Holmes and Cass Sunstein, The Cost of Rights (New York: W. W. Norton, 1999). The proposed provision stated clearly that it was not meant to level the status of social rights with the rights protected by the Charter and would not have the effect of modifying the interpretation of the rights and freedoms protected by the Charter. For further discussion of the rise and fall of the Charlottetown Accord’s social rights provisions, see Joel Bakan and David Schneiderman, Social Justice and the Constitution: Perspectives on a Social Union for Canada (Ottawa: Carleton University Press, 1992). R. v. Prosper, [1994] S.C.R. 236. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 163–164. Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080. Gosselin v. A-G. Quebec, 2002 SCC 84 (decision released Dec. 19, 2002). Adler et al. v. The Queen [1996] 3 S.C.R. 609. Id., at 613. Following the Court’s decision, the parents presented the case before the U.N. Human Rights Committee (UNHRC). In 1999, the Committee released its recommendation stating that Ontario’s refusal to fund non–Roman Catholic denominational schools amounts to a violation of fundamental freedom of religion and equality rights. See Waldman v. Canada (1999), CCPR/C/ C7/694/1999. Schachter v. Canada, [1992] 2 S.C.R. 679. The Court held that unemployment insurance child-care benefits had to be provided equally to both biological and adoptive parents and that the Unemployment Insurance Act’s provision of such benefits to the latter but not to the former was therefore unconstitutional. Eldridge v. British Columbia, [1997] 3 S.C.R. 624. The Court held that the failure of hospitals and doctors to provide publicly funded sign-language interpretation as part of the provision of medical services was discriminatory toward deaf patients of British Columbia’s medicare system. Laurine Platzky and Cherryl Walker, The Surplus People: Forced Removals in South Africa (Johanesburg: Ravan Press, 1985), 10.

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Notes to Pages 131–137

95. Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC), paragraphs 8–9. 96. In re: Gauteng School Education Bill, 1996 (3) SA 165 (CC). 97. Id., 166. The final Constitution expressly endorses the Court’s interpretation of education rights as negative rights by providing in s. 29(3) that “everyone has the right to establish and maintain, at their own expense, independent educational institutions” (emphasis added). 98. Government of RSA v. Grootboom, 2001 (1) SA 46 (CC). 99. Despite the Court’s ruling in Grootboom, lower courts have repeatedly overturned “land grabs” by the homeless. See “Space Invaders,” Economist (July 14, 2001), 44. 100. Minister of Health v. Treatment Action Campaign (TAC), 2002(5) SA 721 (CC). 101. Id., 743. Nevirapine’s manufacturer had offered the drug free to the South African government for a limited period, which would lower significantly the costs of implementing the Court’s ruling. 102. Lawson v. Housing New Zealand, [1997] 2 NZLR 474. 103. Id., 494. In a similar spirit, the NZCA went on to hold that the decision of a semiprivate health insurance company to remove a patient from a dialysis program and to discontinue his medical treatment based on his poor mental condition did not amount to a breach of the patient’s right to life protected by section 8 of the NZBORA: see Shortland v. Northland Health Ltd., [1998] 1 NZLR 433. 104. Mendelssohn v. Attorney-General, [1999] 2 NZLR 268. 105. Attorney-General v. Shirleen et al., [2003] NZCA 29 (decision released on February 29, 2003). 106. On the different alternatives in interpreting Basic Law: Human Dignity and Liberty, see the Court’s discussion in H.C. 454/94 Women’s Lobby in Israel v. Government of Israel, 48(5) P.D. 50. 107. Aharon Barak, “Human Dignity as a Constitutional Right,” Ha’Praklit 41 (1994): 271–290 [Hebrew]. 108. Aharon Barak, Judicial Interpretation (Jerusalem: Nevo, 1994) 419 [Hebrew]. 109. H.C. 1554/95 G.I.L.A.T. v. Minister of Education, 50(3) P.D. 2. 110. Id., 25–26. The rationale behind the Court’s decision seems to replicate the U.S. Supreme Court’s judgment in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), where the Court ruled that although “the grave significance of education both to the individual and to our society cannot to be doubted . . . education is not among the rights afforded explicit protection under the Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” 111. C.A. 1684/96 “Tnu La’khayot Likhyot” (Let the Animals Live) v. Hamat Gader Vacation Industries Ltd., 51(3) P.D. 832. 112. H.C. 205/94 Nof v. Ministry of Defense, 50(5) P.D. 449. 113. See, e.g., H.C. 3954/91 Agbaria v. Minister of Education, 45(5) P.D. 472. 114. H.C. 240/98 Adalah v. Minister of Religious Affairs, 52(2) P.D. 167.

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115. H.C. 2814/97 Follow-Up Committee on Arab Education v. Ministry of Education, 54(3) P.D. 233. 116. For a comprehensive report on the systematic discrimination against Arab children in Israel’s schools see Zama Coursen-Neff, Second Class: Discrimination against Palestinian Arab Children in Israel’s Schools (New York: Human Rights Watch, 2001). For an outline of the main findings see my discussion in Chapter 5. 117. H.C. 6032/99 Suad et al. v. National Planning and Construction Board, 55(5) P.D. 929. 118. H.C. 4540/00 Abu-Apash et al. v. Ministry of Health (decision released Sept. 12, 2001; not yet published). 119. See, e.g., Aharon Yoran, “The Constitutional Revolution in Taxation in Israel,” Mishpatim 23 (1994): 55–68 [Hebrew]. 120. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195. 121. Id., 205. 122. It is important to note that judicial interpretations of bills of rights under market liberalism show a marked tendency to reflect that ideological atmosphere by protecting liberty and property rather than supporting state-underwritten regulatory employment laws. The best-known example of this occurred during the Lochner era in the United States, when a profoundly conservative Supreme Court used the Constitution’s Fifth Amendment to block socially progressive legislation for more than thirty years. During this time (roughly 1885 to 1930), the U.S. Supreme Court struck down some 150 pieces of legislation concerning labor relations, labor conditions, and working hours. In the famous Lochner ruling (Lochner v. New York, 198 U.S. 45 1905), the Court invalidated a state law that limited the working hours of bakers, claiming that the safety of bakers provided “no reasonable ground for interfering with the liberty of a person of the right of free contract.” During the Lochner Era, the Court declared unconstitutional laws banning “yellow dog” contracts (Adair v. U.S., 208 U.S. 161 1908; Coppage v. Kansas, 236 U.S. 1 1915), laws requiring minimum wages for women (Adkins v. Childer’s Hospital, 261 U.S. 525 1923), laws restricting child labor (Hammer v. Dagenhart, 247 U.S. 251 1918), and a host of other laws similar in nature. 123. Reference Re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313; Retail, Wholesale & Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460; and Public Service Alliance of Canada v. The Queen, [1987] 1 S.C.R. 424. 124. Reference Re: Public Service Employee Relations Act (Alberta), 319–320. 125. Professional Institute of the Public Service in Canada v. Northwest Territories, [1990] 2 S.C.R. 367. 126. See National Union of Belgian Police v. Belgium (1975) 1 EHRR 578; Young et al. v. UK (1981) 4 EHRR 38. 127. Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.

250 128. 129. 130. 131.

132. 133. 134.

135. 136. 137.

138. 139. 140.

141.

142. 143.

144. 145.

Notes to Pages 141–145 R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209. Dunmore v. Ontario, [2001] 3 S.C.R. 1016. Id., 1017. Secondary picketing is picketing by workers in sites other than the primary place of employment, usually in an attempt to prevent their corporate employer from avoiding the costs of a labor dispute by transferring its pertinent business activities to other locations, branches, etc. or in an attempt to raise public awareness to the workers’ claims. Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. See also the Court’s decision in British Columbia Government Employees’ Union v. British Columbia, [1988] 2 S.C.R. 214. U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada, [2002] 1 S.C.R. 156. U.F.C.W., Local 1518 v. KMart Canada Ltd, 1085. Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada, paragraph 80. One of the recent appointees to South Africa’s Constitutional Court—Justice Kate O’Regan—specializes in labor law and is generally perceived as sympathetic to workers’ rights. South African National Defence Union (SANDU) v. Minister of Defence, 1999 (4) SA 469 (CC). National Education Health and Allied Workers Union (NEHAWU) v. University of Cape Town (CCT 2/02, decision released Dec. 6, 2002). National Union of Metal Workers of South Africa v. Bader Bop Ltd. (CCT 14/ 02, decision released on Dec. 13, 2002). It is questionable, however, whether this judgment is indeed favorable to wokrers; by strengthening the status of minority unions, this ruling entails erosion in the unique status of majority unions. See the SCC’s ruling in Lavigne (1991). This immunity for strikers was established by the Knesset in 1965 following the Supreme Court’s decision in C.A. 167/62 Leo Beck High School v. Organization of High School Teachers, 16 P.D. 2205. The immunity of strikers is protected under the Israeli tort law (article 62b). See C.A. 593/81 Ashdod Vehicle Enterprises v. Tsizik, 41(3) P.D. 169. See, e.g., Tel-Aviv District Court 2233/89 Barclays Discount Bank Ltd. v. Discount Bank Employees Union (Unpublished, 1989); Haifa District Court 1380/ 93 National Coal Company Ltd. v. Markowitz (Unpublished, 1994). While this notion may be logical in other spheres, it is not logical in the context of labor disputes. In most industrial actions, the predominant intention is to further workers’ interests, but this can never be achieved without intentionally damaging employers’ interests, including their relations with third parties. H.C. 1074/93 Attorney-General v. National Labor Court, 49(2) P.D. 485. Barak, Judicial Interpretation, 597.

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146. Aharon Barak, “Basic Law: Freedom of Occupation,” Mishpat U’Mimshal (Law and Government) 2 (1994): 202 [Hebrew]. 147. H.C. 987/94 Euronet Gold Lines (1992) Ltd. v. Ministry of Communication, 48(5) P.D. 412. 148. H.C. 726/94 Klal Insurance Company Ltd. v. Minister of Finance, 48(5) P.D. 441. 149. H.C. 1715/97 Association of Investment Management v. Minister of Finance, 51(4) P.D. 367. 150. Capital Coast Health Ltd. v. New Zealand Medical Laboratory Workers Union, [1996] 1 NZLR 7. 151. Id., 8. See also Lewis v. Real Estate Institute of New Zealand Inc., [1995] 3 NZLR 385.

5. Rights and Realities 1. Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard University Press, 1991), 153. See also Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990); and Kimberley Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Harvard Law Review 101 (1988): 1331–1387. 2. Austin Sarat, “Going to Court: Access, Autonomy, and the Contradictions of Liberal Legality,” in D. Kairys, ed., The Politics of Law: A Progressive Critique, 3rd ed., (New York: Basic Books, 1998), 98. For an exploration of the cultural significance of Brown, see the essays in A. Sarat, ed., Race, Law, and Culture: Reflections on Brown v. Board of Education (New York: Oxford University Press, 1997). 3. Owen Fiss, “Against Settlement,” Yale Law Journal 93 (1984): 1073–1125. 4. Williams, The Alchemy of Race and Rights, 164. 5. Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus, 1990), 1. 6. Harold Laski, Liberty and the Modern State (London: George Allen and Unwin, 1948), 75. 7. This notion is based on Amartya Sen’s “capabilities,” or “basic needs,” approach to human development. It has been adopted by the UNDP and numerous other international human development agencies. See Amartya Sen, “Equality of What?” in S. McMurrin, ed., Tanner Lectures on Human Values (Cambridge: Cambridge University Press, 1980); and Sen, Inequality Reexamined (Cambridge, Mass.: Harvard University Press, 1992). 8. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), 107–108. 9. Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (Cambridge: Cambridge University Press, 1998).

252

Notes to Pages 153–157

10. Alexander Hamilton, “Federalist 84,” in C. Rossiter, ed., The Federalist Papers (New York: Mentor, 1961), 512. 11. I. Dilliard, ed., Spirit of Liberty: Papers and Addresses of Learned Hand (New York: Knopf, 1944), 189–190. 12. See Robert Dahl, “Thinking about Democratic Constitutions: Conclusions from Democratic Experience,” Nomos 38 (1996): 175–206, 178. For a discussion of the social conditions favorable to the existence of a “polyarchy” see Dahl’s Democracy and Its Critics (New Haven: Yale University Press, 1989), 244–279. 13. Robert Dahl, A Preface to Democratic Theory (New Haven: Yale University Press, 1956), 143. 14. Robert Putnam et al., Making Democracy Work: Civic Traditions in Modern Italy (Princeton, N.J.: Princeton University Press, 1993). The implications of the Dahl-Putnam thesis for what many theorists call the “transitology” debate are obvious: in order for a democracy to endure in a given polity it is more important to develop a vibrant civil society and a rights-supportive culture in the polity than to structure the institutional setting in that polity correctly. 15. Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997), chs. 3–5. 16. Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke, and Marx on the Rights of Man (Oxford: Oxford University Press, 1987), 196. See also Ronald Beiner, What’s the Matter with Liberalism (Berkeley: University of California Press, 1992); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991); and Mark Tushnet, “An Essay on Rights,” Texas Law Review 62 (1984): 1363–1403. 17. Glendon, Rights Talk, xi. See also Robert Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.: Harvard University Press, 2001). 18. See Edward Broadbent, “Ten Propositions about Equality and Democracy,” in Broadbent, ed., Democratic Inequality: What Went Wrong? (Toronto: University of Toronto Press, 2001), 7. 19. The Gini coefficient describes the distribution of a nation’s wealth, whereby 0 reflects perfectly equal income distribution and 1 reflects fully unequal income distribution. For further discussion, see Israel’s Social Insurance Institute Annual Report, 2000–2001 (published in December 2001; www.btl.gov.il). 20. Report released on December 2, 2002. 21. See Adva Center, Information on Equality and Social Justice in Israel, www.adva.org/english/gaps/income-types.htm. 22. The 2001 Census (Statistics Canada, May 2003). 23. Jim Stanford, “The Economic Consequences of Financial Inequality,” in Broadbent, Democratic Inequality, 225. 24. Income Distribution after Tax: Distribution by Size in Canada (Ottawa: Minister of Supply and Services Canada, 1994), 42. For a comprehensive account of the growing economic inequality in Canada over the past two decades, see René Morissette et al., The Evolution of Wealth Inequality in Canada, 1984–1999, Statistics Canada Working Paper No. 187, February 22, 2002; and Anton Allahar and

Notes to Pages 157–163

25. 26. 27.

28.

29. 30. 31. 32. 33. 34. 35. 36.

37.

38.

39. 40. 41.

42. 43.

253

James Cote, Richer and Poorer: The Structure of Inequality in Canada (Toronto: James Lorimer and Co., 1998). Morissette, The Evolution of Wealth Inequality, 20. See “Poor Made Few Financial Gains in 1990s,” Toronto Star, July 19, 2002. Dean Hyslop and David C. Maré, “Understanding Changes in the Distribution of Household Incomes in New Zealand between 1983–86 and 1995–99,” New Zealand Treasury Working Paper 01/21 (2001). Statistics Canada, Catalogue no. 13–217; Statistical Abstract of Israel, 2001 (Jerusalem: Central Bureau of Statistics, 2002); New Zealand Official Yearbook 2001; Statistics South Africa Yearbook, 2001. Report of Royal Commission on Aboriginal Peoples, 1996; Statistics Canada, Comparison of Social Indicators 1991 and 1996. Education Statistics of New Zealand, 1988, 1993, 1998, 2001. State Comptroller’s Report, No. 50 (2000), 363–364; Second Class (New York: Human Rights Watch, 2001). Statistical Abstract of Israel, 2000 (Jerusalem: Central Bureau of Statistics, 2001), 285, Tables 22.9, 22.15. See, e.g., U.S. Department of State, 1999 Country Reports on Human Rights Practices: Israel (report released February 2000). See my discussion of several such cases in Chapter 4. See New Zealand Ministry of Maori Development, Closing the Gaps, 2000 (published in May 2000; available at www.tpk.govt.nz). Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC), paragraphs 8–9. See also In re: Gauteng School Education Bill, 1996 (3) SA 165 (CC). See James Gibson and Gregory Caldeira, “Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court,” Journal of Politics 65 (2003): 1–30. Two major caveats should be noted here. First, MPs may represent different sections of the population even if they do not themselves belong to this group. Second, it is not at all clear that better representation of a given group in the numerical sense automatically translates into more favorable policy outcomes for that group. As the history of parliamentary democracy indicates, public figures who belong to historically disenfranchised minorities might not represent their group’s best interests. 424 U.S. 1 (1976). 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899 (1996). Miller v. Johnson, 515 U.S. 900 (1995). In a follow-up ruling in Abrams v. Johnson, 521 U.S. 74 (1997), the Court held that Georgia was not required to make any increase in the number of majority-minority voting districts in the state. 517 U.S. 952 (1996). Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).

254

Notes to Pages 163–176

44. 531 U.S. 98 (2000). 45. For a detailed examination of this subject see Thomas Schouls, “Aboriginal Peoples and Electoral Reform in Canada: Differentiated Representation versus Voter Equality,” Canadian Journal of Political Science 29 (1996): 728–749. 46. Economic liberties in the four countries are protected by section 6 of the Canadian Charter (the right to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province) as well as by a nexus of pertinent NAFTA provisions protecting economic freedoms; by sections 8 and 21 of the NZBORA; by section 25 of the South African Bill of Rights; and by Basic Law: Freedom of Occupation and section 3 (“There shall be no violation of the property of a person”) of Basic Law: Human Dignity and Freedom in Israel. 47. Freedom House Annual Survey of Economic Freedom, 1972 to 2002 (New York: Freedom House, annual); Economic Freedom of the World: 2000 Annual Report (Vancouver: Fraser Institute, 2000), and 2002 Annual Report (Vancouver: Fraser Institute, 2002); E. Messick, ed., World Survey of Economic Freedom (New Brunswick, N.J.: Transaction Publications, 1998); Rethinking Foreign Aid: The Index of Economic Freedom (Washington, D.C.: Heritage Foundation, 1995); and Index of Economic Freedom (Washington, D.C.: Heritage Foundation, 2002).

6. Constitutionalization and the Judicialization of Mega-Politics 1. Alexis de Tocqueville, On Democracy (New York: Knopf, [1835] 1945), 280. 2. For a more general discussion of the so-called delegatee drift problem see D. Roderick Kiewiet and Mathew McCubbins, The Logic of Delegation: Congressional Parties and the Appropriation Process (Chicago: University of Chicago Press, 1991). 3. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 291. 4. H.C. 3872/93 Meatrael Ltd. v. Minister of Religious Affairs, 47(5) P.D. 485. 5. H.C. 4676/94 Meatrael Ltd. v. the Kensset, 50(5) P.D. 15. 6. H.C. 77/02 Aviv-Osovlanski Ltd. v. The Central Rabbinate (decision released September 8, 2002). 7. H.C. 1000/92 Bavli v. Great Rabbinical Court, 48(2) P.D. 6. 8. H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court, 50(4) P.D. 590. 9. H.C. 5507/96 Amir v. Haifa District Court, 50(3) P.D. 321. 10. H.C. 5227/97 David v. Great Rabbinical Court, 55(1) P.D. 453. 11. H.C. 293/00 Plonit (“Jane Doe”) v. Great Rabbinical Court, 55(3) P.D. 318. 12. See, e.g. H.C. 2222/99 Gabai v. Great Rabbinical Court, 54(5) P.D. 401; H.C. 2274/99 Shafir v. Regional Rabbinical Court, 56(1) P.D. 673. 13. H.C. 257/89 Hofman v. Custodian of the Western Wall, 48(2) P.D. 265. The main opinion in the 1994 Women of the Wall case (H.C. 3358/95 Hofman v.

Notes to Pages 176–184

14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36.

255

Government of Israel, 54(2) P.D. 345) was written by Deputy Chief Justice Menachem Elon, a renowned expert in Jewish law. This decision was given by a different panel of judges, and was written after the retirement of Justice Elon. H.C. 3267/97 Rubinstein and Oron v. The Minister of Defense et al., 52(5) P.D. 481. The Law of Return provides Jews with the right to “return” to Israel to take up citizenship even if they have never been there. H.C. 264/87 Sepharadi Torah Guardians, Shas Movement v. Population Registrar, 43(2) P.D. 723. H.C. 1031/93 Pessaro (Goldstein) et al. v. Ministry of Interior, 49(4) P.D. 661. H.C. 5070/95 The Conservative Movement v. Minister of Religious Affairs (decision released Feb. 20, 2002; not yet published). Reference Re: Resolution to Amend the Constitution (Patriation Reference), [1981] 1 S.C.R. 753. Reference Re: Objection by Quebec to a Resolution to Amend the Constitution (Quebec Veto Reference), [1982] 2 S.C.R. 793. These arguments contend that Quebec is entitled to a special veto status because it represents a distinct francophone society within Canada, and because the Canadian confederation was founded on a historic agreement between Quebec and English-speaking Canada. A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66. A.-G. of Quebec v. Blaikie, [1979] 2 S.C.R. 1016. A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66. Ford v. A.-G. Quebec 1988 (the “sign law” case), [1988] 2 S.C.R. 712. Reference Re: Manitoba Language Rights, [1985] 1 S.C.R. 721. Mahe v. Alberta, [1990] 1 S.C.R. 342. Aresenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3. Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217. Western Cape Legislature v. President of the Republic of South Africa, 1995 (4) SA 877 (CC); Premier, KwaZulu-Natal v. President of the Republic of South Africa, 1996 (1) SA 769 (CC). Basically, the two cases dealt with the constitutionality of amendments made by the President to constitutional provisions permitting greater parliamentary discretion over matters of local government. For a recent example of this pattern, see Executive Council of KwaZulu-Natal v. President of the RSA, 2000 (1) SA 661 (CC). In re Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC). Id., 762–763. Id., 766–769. DVB Behuising Limited v. North West Provincial Government, 2001 (1) SA 500 (CC). In this case, the Court held that the repeal by the North West provincial government of an apartheid-based provincial law that provided for the establishment of townships in accordance with apartheid policies of racial segregation fell within provincial legislative powers. However, the province was not

256

37.

38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

49. 50.

51. 52. 53. 54.

Notes to Pages 184–193 constitutionally entitled to repeal the registration of deeds and land title established by the disputed law. In re: Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC); In re: Certification of the Amended Text of the Constitution of the Republic of South Africa, 1997 (2) SA 97 (CC). Heinz Klug, “Historical Background,” in M. Chaskalson et al., eds., Constitutional Law of South Africa (Johannesburg: Juta, 1998), § 2.17–19. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), 24. Id., 25, 26. See K. D. Ewing, “The Bill of Rights Debate,” in K. D. Ewing et al., eds., Human Rights and Labour Law (London: Mansel, 1994), 157–159. Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978). John H. Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980), 87–88. Id., 99. Id., 181. Bruce Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard University Press, 1992). See, e.g., Jennifer Nedelsky, “The Puzzle and Demands of Modern Constitutionalism,” Ethics 104 (1994): 500–515. On the legitimacy of the SACC see James Gibson and Gregory Caldeira, “Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court,” Journal of Politics 65 (2003): 1–30. Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa, 1996 (4) SA 671 (CC). The Treaty of Waitangi (1840), affirmed by the Treaty of Waitangi Act, formed a covenant between representatives of the British Crown and Maori leaders. The treaty recognized the prior occupation of New Zealand by Maori people and enabled the peaceful acquisition of land for settlement purposes. The treaty also allowed the Crown to set up a government to establish laws. In return, the Crown was to guarantee and actively protect Maori tribal authority over their lands, fisheries, villages, and culture and extend to them the status and rights of British citizens. Beyond its formal terms, the Treaty of Waitangi is often claimed to be a “founding document” and a “fundamental charter” that brought about the foundation of the state, and as such, it symbolizes the beginning of modern, Western-style government in New Zealand. New Zealand Maori Council v. Attorney General, [1991] 2 NZLR 129 (the “Radio Frequencies” case). New Zealand Maori Council v. Attorney General (No. 2), [1991] 2 NZLR 147 (the “Broadcasting Assets” case). New Zealand Maori Council v. Attorney General, [1996] 3 NZLR 140. New Zealand Maori Council v. Attorney General, [1994] 1 NZLR 513 (PC).

Notes to Pages 194–197

257

55. Taiaroa v. Minister of Justice, [1995] 1 NZLR 411 (the “Maori Electoral Option” case). 56. Ngai Tahu Maori Trust Board v. Director General of Conservation, [1995] 3 NZLR 553 (the “Whale-Watch” case). 57. See Treaty Tribes Coalition et al. v. Urban Maori Authorities et al., [1997] 1 NZLR 513. The claims of the Ngai Tahu tribe were eventually settled in the Ngai Tahu Claims Settlement Act 1998. In it, the Crown acknowledged and settled wrongs done in its name to the people of Ngai Tahu and made a fresh start. In early 1998, following an incident in late 1997 (in which a fishing boat reportedly landed several metric tons of snapper without commercial quota rights), it was announced that new regulations were to govern the management of “customary” fishing by tanagata whenua (people of the land), whereby the Maori are permitted to harvest an unlimited amount of seafood, provided it is not for pecuniary gain. A few months after the adoption of the Ngai Tahu Claims Settlement Act 1998, the Court was asked by another Maori tribe, the Ngati Apa (whose people live in the same area as the Ngai Tahu), to determine whether a Parliamentary Act that had settled the Ngai Tahu Treaty claims had deprived the Ngati Apa of the capacity to raise their own claims. See Ngati Apa ki te Waipounamu Trust v. The Queen, [2000] 2 NZLR 659. 58. Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc., [1996] 3 NZLR 10. 59. Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission, [2000] 1 NZLR 265. 60. While a spirit of negotiation and compromise has historically informed aboriginal relations with the government, violent confrontations are not uncommon. Those in Oka, Quebec, in 1990, Gustafsen Lake, British Columbia, in 1995, and Burnt Church, New Brunswick, in 2000 received comprehensive media coverage and national attention for months. 61. R. v. Sparrow, [1990] 1 S.C.R. 1075. Sparrow, a Musqueam Indian, was charged under the federal Fisheries Act for using a longer drift net than permitted under an Indian food license. Sparrow argued that the regulation was an unjustified infringement of his section 35 aboriginal right to fish. The constitutional question was whether the aboriginal right to fish constituted an “existing” right or whether it was a right that had been extinguished prior to the enactment of the Constitution Act 1982. 62. See R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Gladstone, [1996] 2 S.C.R. 672; R. v. N. T. C. Smokehouse, [1996] 2 S.C.R. 572. 63. Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. See also R. v. Pamajewon, [1996] 2 S.C.R. 821, in which the Court narrowly defined the right of First Nations to self-government under s. 35 of the Charter. 64. R. v. Badger, [1996] 1 S.C.R. 771; R. v. Marshall I, [1999] 3 S.C.R. 456; R. v. Marshall II, [1999] 3 S.C.R. 533.

258

Notes to Pages 197–203

65. R. v. Powley, 2003 SCC 43 (decision released on Sept. 19, 2003); R. v. Blais, 2003 SCC 44 (decision released on Sept. 19, 2003). 66. Right to appeal denied on March 14, 2002. 67. Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Politics (New Haven: Yale University Press, 1974), 34. 68. See, e.g., H.C. 4935/93 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 47(5) P.D. 865; H.C. 6403/96 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 50(4) P.D. 241; H.C. 7128/96 “Temple Mount Trustees” Movement v. Government of Israel, 51(2) P.D. 509; and H.C. 8666/99 “Temple Mount Trustees” Movement v. Attorney General, 54(1) P.D. 202. 69. H.C. 6163/92 Eisenberg v. Minister of Housing, 47(2) P.D. 229 (the so-called “Ginnosar affair,” 1993). 70. The so-called “Ehud Yatom affair” (H.C. 4668/01 Sarid v. Prime Minister, 56(2) P.D. 265). 71. See, e.g. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991); Gerald Rosenberg, “Judicial Independence and the Reality of Political Power,” Review of Politics 54 (1992): 369–398; Donald Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977); and Mark Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9 (1974): 95–121. For a general survey of the various formal and informal political checks on the judiciary in the United States see Terri Jennings Peretti, In Defense of a Political Court (Princeton, N.J.: Princeton University Press, 1999). For a general discussion of the costs of judicial divergence see Keith Whittington, “Legislative Sanctions and the Strategic Environment of Judicial Review,” International Journal of Constitutional Law 1 (2003): 446, 461–464. 72. Mohammed Ahmad Kan v. Shah Bano (AIR 1985 SC 945). My discussion of Shah Bano and its political aftermath draws on Ayelet Shachar’s analysis in Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001), 81–83. 73. In a recent follow-up ruling (Danial Latifi vs. Union of India, 2001 7 SCC 740), the Indian Supreme Court held that interpreting the act to mean that Muslim women were not entitled to support from their husbands beyond the iddat period (a three-month period that follows a divorce) was inconsistent with sections 21 (the right to live with dignity), 14 (equality and equal protection under the law), and 15 (prohibition of discrimination on the grounds of religion) of the Indian Constitution. However, the Court added that in a situation where there are two possible interpretations of a statute and one would render the statute outside of Parliament’s jurisdiction, the inoffensive reading should be adopted. Thus, the Court accepted the reading of the act that sees it mandating a settlement for maintenance being required within the iddat period. The final compromise result of Danial Latifi is that the act was not found to be unconstitutional insofar as it can be read as codifying the Shah Bano decision. It remains to be seen what will be India’s political sphere’s reaction to this ruling.

Notes to Pages 203–217

259

74. Mabo v. Queensland [No 2] (1992) 175 C.L.R. 1. Note that the SCC’s ruling in Delgamuukw (mentioned earlier) echoed the Australian High Court’s ruling in Mabo. 75. The Wik Peoples v. Queensland (1996) 187 C.L.R. 1. 76. Chng Suan Tze v. Minister of Home Affairs [1988] SLR 132. See also Gordon Silverstein, “Globalization and the Rule of Law: A Machine that Runs of Itself?” International Journal of Constitutional Law 1 (2003): 427, 438–440. 77. J. B. Jeyaretnam v. Law Society of Singapore, [1989] A.C. 608 (Privy Council). 78. See Francis Seow, “The Politics of Judicial Institutions in Singapore,” presented at the University of Sidney, March 1997, available at www.singapore-window.org. 79. Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago: University of Chicago Press, 2000), 118–122. 80. Id., 122–125. 81. Id., 144–145. 82. Lee Epstein et al., “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government,” Law and Social Inquiry 35 (2001): 152–153. 83. H.C. 6698/95 Qa’adan v. The Jewish Agency, 54(1) P.D. 258. 84. Statistical Abstracts of Israel, 2002 (Jerusalem: Central Bureau of Statistics), 273. 85. Cited in Ha’Artez (English edition), July 16, 2002. 86. Rosenberg, The Hollow Hope, 343. 87. The apparent nonjusticiability of a political question is based primarily on the principle of separation of powers and the corresponding ideal of representative, fully accountable, and well-informed decision-making, particularly in matters of supreme political salience. The political question doctrine is also based on the need to attribute finality to actions of the legislative and executive branches of government and to respect their defined prerogatives. 88. The Maastricht Case (1993) 89 BVerfGE 155 (Germany); the Chechnya case (July 1995) (Russia); Decision 43/1995 on Social Security Benefits (the “Austerity Package” decision) (Hungary); TCC Decision 1/1998 (the Refah [Welfare] Party Dissolution case), January 16, 1998; TCC Decision 57/2001 (the Fazilet [Virtue] Party Dissolution case), June 21, 2001 (Turkey); The Republic of Fiji Islands v. Prasad (decision released on March 1, 2001) High Court Civil Action No. 217/2000 (Fiji); Muhammad Nawaz Sharif v. President of Pakistan and Others, P.L.D. 1993 S.C. 473; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan, P.L.D. 2000 S.C. 869 (Pakistan).

Conclusion 1. Michael Mandel, “A Brief History of the New Constitutionalism, or ‘How we changed everything so that everything would remain the same’,” Israel Law Review 32 (1998): 250–300. 2. Id., 299–300. 3. Id., 300, 251.

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Notes to Pages 218–223

4. See Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). Epp suggests that the impact of constitutional catalogues of rights may be limited by individuals’ inability to invoke them through strategic litigation. Hence bills of rights matter to the extent that a support structure for legal mobilization—a nexus of rights-advocacy organizations, rights-supportive lawyers and law schools, governmental rights-enforcement agencies, and legal aid schemes—is well developed. 5. Harry Glasbeek, “From Constitutional Rights to ‘Real Rights’—‘R-i-g-hts Foor-wa-ard Ho’!” Windsor Yearbook of Access to Justice 10 (1990): 473. 6. Bruce Ackerman, “The Rise of World Constitutionalism,” Virginia Law Review 83 (1997): 771–797, 774. 7. James Gibson et al., “On the Legitimacy of National High Courts,” American Political Science Review 92 (1998): 343.

Legal Decisions Cited

Australia Mabo v. Queensland [No 2] (1992) 175 C.L.R. 1. The Wik Peoples v. Queensland (1996) 187 C.L.R. 1.

Canada Adler et al. v. The Queen, [1996] 3 S.C.R. 609. A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66. A.-G. Quebec v. Blaikie, [1979] 2 S.C.R. 1016. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. Aresenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3. Askov v. The Queen, [1990] 2 S.C.R. 1199. Baker v. Canada, [1999] 2 S.C.R. 877. British Columbia Government Employees’ Union v. British Columbia, [1988] 2 S.C.R. 214. Caloil v. Canada, [1971] S.C.R. 543. Central Canada Potash v. Saskatchewan, [1979] 1 S.C.R. 42. Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. Dunmore v. Ontario, [2001] 3 S.C.R. 1016. Egan v. Canada, [1995] 2 S.C.R. 513. Eldridge v. British Columbia, [1997] 3 S.C.R. 624. Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080. Ford v. A.-G. Quebec, [1988] 2 S.C.R. 712. General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641. Gosselin v. A.-G. Quebec, 2002 SCC 84 (decision released on Dec. 19, 2002). Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211. Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. M v. H, [1999] 2 S.C.R. 3. Mahe v. Alberta, [1990] 1 S.C.R. 342. Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689.

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262

Legal Decisions Cited

Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575. Munro v. National Capital Commission, [1966] S.C.R. 663. Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327. Professional Institute of the Public Service in Canada v. Northwest Territories, [1990] 2 S.C.R. 367. Public Service Alliance Canada v. The Queen, [1987] 1 S.C.R. 424. The Queen v. Lavalee et al., 2002 SCC 61 (decision released on Sept. 12, 2002). R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R 209. R. v. Badger, [1996] 1 S.C.R. 771. R. v. Blais, 2003 SCC 44 (decision released on Sept. 19, 2003). R. v. CIP Inc., [1992] 1 S.C.R. 843. R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401. R. v. Daviault, [1994] 3 S.C.R. 63. R. v. Drybones, [1970] S.C.R. 282. R. v. Feeney, [1997] 2 S.C.R. 117. R. v. Gladstone, [1996] 2 S.C.R. 672. R. v. Golden, [2001] 3 S.C.R. 679. R. v. Hauser, [1979] 1 S.C.R. 984. R. v. Keegstra, [1990] 3 S.C.R. 697. R v. Klassen, (1959) 20 D.L.R. 406. R. v. Lucas, [1998] 1 S.C.R. 439. R. v. Marshall I, [1999] 3 S.C.R. 456. R. v. Marshall II, [1999] 3 S.C.R. 533. R. v. Mills, [1999] 3 S.C.R. 668. R. v. Noël, 2002 SCC 67 (decision released on Oct. 31, 2002). R. v. N. T. C. Smokehouse, [1996] 2 S.C.R. 572. R. v. Oakes, [1986] 1 S.C.R. 103. R. v. O’Connor, [1995] 4 S.C.R. 411. R. v. Pamajewon, [1996] 2 S.C.R. 821. R. v. Powley, 2003 SCC 43 (decision released on Sept. 19, 2003). R. v. Prosper, [1994] S.C.R. 236. R. v. Seaboyer, [1991] 2 S.C.R. 577. R. v. Sharpe, [2001] 1 S.C.R. 45. R. v. Sparrow, [1990] 1 S.C.R. 1075. R. v. Stinchcombe, [1991] 3 S.C.R. 326. R. v. Van der Peet, [1996] 2 S.C.R. 507. R. v. Zundel, [1992] 2 S.C.R. 731. Reference Re: Alberta Statutes, [1938] S.C.R. 100. Reference Re: Anti-Inflation Act, [1976] 2 S.C.R. 373. Reference Re: Manitoba Language Rights, [1985] 1 S.C.R. 721. Reference Re: Objection by Quebec to a Resolution to Amend the Constitution (Quebec Veto Reference), [1982] 2 S.C.R. 793. Reference Re: Offshore Mineral Rights of British Colombia, [1967] S.C.R. 792. Reference Re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313.

Legal Decisions Cited

263

Reference Re: Resolution to Amend the Constitution (Patriation Reference), [1981] 1 S.C.R. 753. Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217. Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada, [2002] 1 S.C.R. 156. Retail, Wholesale & Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460. RJR MacDonald Inc. v Canada, [1995] 3 S.C.R. 199. Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. Schachter v. Canada, [1992] 2 S.C.R. 679. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Thorson v. A.-G. Canada, [1975] 1 S.C.R. 138. U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083. United States v. Burns, [2001] 1 S.C.R. 283. United States of America v. Cobb, [2001] 1 S.C.R. 587. United States of America v. Shulman, [2001] 1 S.C.R. 616. Vriend v. Alberta, [1998] 1 S.C.R 493.

Egypt Riba [usury or interest] Case, No. 20, 1st judicial year (May 4, 1986). Wassel v. Minister of Education (the Niq’ab [veil] Case), No. 8 of the 17th judicial year (May 18, 1996).

European Court of Human Rights National Union of Belgian Police v. Belgium (1975) 1 EHRR 578. Smith and Grady v. United Kingdom, Lustig-Prean & Beckett v. United Kingdom (2000) 29 EHRR 493. Young et al. v. UK (1981) 4 EHRR 38.

Fiji The Republic of Fiji Islands v. Prasad (decision released on March 1, 2001) High Court Civil Action No. 217/2000.

Germany Maastricht Case (1993) 89 BVerfGE 155.

Hungary Decision 14/1995 on the Legal Equality of Same Sex Partnerships. Decision 43/1995 on Social Security Benefits (the “Austerity Package” decision).

264

Legal Decisions Cited

India Danial Latifi v Union of India, (2001) 7 SCC 740. Mohammed Ahmad Kan v. Shah Bano (AIR 1985 SC 945). Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180). Unni Krishnan v. State of Andhra Pradesh (AIR 1993 SC 2178).

Israel H.C. 4540/00 Abu-Apash et al. v. Ministry of Health (not yet published). H.C. 240/98 Adalah v. Minister of Religious Affairs, 52(2) P.D. 167. H.C. 3954/91 Agbaria v. Minister of Education, 45(5) P.D. 472. A.C.H. 7048/97 Almoni (“John Doe”) v. Minister of Defence, 54(1) P.D. 721. H.C. 5507/96 Amir v. Haifa District Rabbinical Court, 50(3) P.D. 321. H.C. 4267/93 Amitai v. Prime Minister, 47(5) P.D. 441. C.A. 593/81 Ashdod Vehicle Enterprises v. Tsizik, 41(3) P.D. 169. H.C. 273/97 Association for the Protection of Individual Rights of Homosexuals, Lesbians, and Bisexuals in Israel et al. v. Minister of Education et al., 51(5) P.D. 822. H.C. 5973/92 Association of Civil Rights v. Minister of Defense, 47(1) P.D. 267. H.C. 1715/97 Association of Investment Management v. Minister of Finance, 51(4) P.D. 367. H.C. 1074/93 Attorney-General v. National Labor Court, 49(2) P.D. 485. H.C. 77/02 Aviv-Osovlanski Ltd. v. The Central Rabbinate (decision released September 8, 2002; not yet published). T.A.D.C. 2233/89 Barclays Discount Bank Ltd. v. Discount Bank Employees Union (unpublished, 1989). H.C. 1000/92 Bavli v. Great Rabbinical Court, 48(2) P.D. 6. H.C. 98/69 Bergman v. Minister of Finance, 23(1) P.D. 693. H.C. 7964/95 Bilbisi v. General Security Service (not yet published). H.C. 1779/99 Brener-Kadish v. Ministry of Interior, 52(2) P.D. 368. H.C. 5227/97 David v. Great Rabbinical Court, 55(1) P.D. 453. H.C. 6163/92 Eisenberg v. Minister of Housing, 47(2) P.D. 229. H.C. 721/94 El Al Airlines Ltd. v. Danilowitch et al., 48(5) P.D. 749. H.C. 987/94 Euronet Gold Lines (1992) Ltd. v. Ministry of Communication, 48(5) P.D. 412. H.C. 2814/97 Follow-Up Committee on Arab Education v. Ministry of Education, 54(3) P.D. 233. H.C. 2222/99 Gabai v. Great Rabbinical Court, 54(5) P.D. 401. H.C. 1554/95 G.I.L.A.T. v. Minister of Education, 50(3) P.D. 2. C.F.H. 2316/95 G’nimmat v. State of Israel, 49(4) P.D. 589. H.C. 8049/96 Hamdan v. General Security Service (not yet published). H.C. 257/89 Hofman v. Custodian of the Western Wall, 48(2) P.D. 265. H.C. 3358/95 Hofman v. Government of Israel, 54(2) P.D. 345.

Legal Decisions Cited

265

H.C. 5016/96 Horev v. Minister of Transportation, 51(4) P.D. 1. H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court, 50(4) P.D. 590. H.C. 726/94 Klal Insurance Company Ltd. v. Minister of Finance, 48(5) P.D. 441. H.C. 73/53 Kol Ha’am v. The Minister of the Interior, 7(2) P.D. 871. C.A. 167/62 Leo Beck High School v. Organization of High School Teachers, 16 P.D. 2205. H.C. 3872/93 Meatrael Ltd. v. Minister of Religious Affairs, 47(5) P.D. 485. H.C. 4676/94 Meatrael Ltd. v. the Knesset, 50(5) P.D. 15. H.C. 3094/93 Movement for Government Quality v. Prime Minister, 47(5) P.D. 404. H.C. 3124/96 Mubarak v. General Security Service (not yet published). H.D.C. 1380/93 National Coal Company Ltd. v. Markowitz (unpublished, 1994). H.C. 205/94 Nof v. Ministry of Defense, 50(5) P.D. 449. H.C. 1031/93 Pessaro (Goldstein) et al. v. Ministry of Interior, 49(4) P.D. 661. H.C. 293/00 Plonit (“Jane Doe”) v. Great Rabbinical Court, 55(3) P.D. 318. H.C. 5100/94 Public Committee Against Torture in Israel et al. v. State of Israel et al., 53(4) P.D. 817. H.C. 6698/95 Qa’adan v. The Jewish Agency, 54(1) P.D. 258. H.C. 910/86 Ressler v. Minister of Defense, 42(2) P.D. 441. H.C. 3267/97 Rubinstein and Oron v. The Minister of Defense et al., 52(5) P.D. 481. H.C. 6055/95 Sagi Zemach v. Minister of Defense, 53(5) P.D. 241. H.C. 2581/91 Salhat v. The Government of Israel, 47(4) P.D. 837. H.C. 4668/01 Sarid v. Prime Minister (“Ehud Yatom affair”), 56(2) P.D. 265. H.C. 264/87 Sepharadi Torah Guardians, Shas Movement v. Population Registrar, 43(2) P.D. 723. H.C. 2274/99 Shafir v. Regional Rabbinical Court, 56(1) P.D. 673. H.C. 5304/92 Society for Law Victims v. Minister of Justice, 47(4) P.D. 715. C.A. 1302/92 State of Israel v. Nahamias, 49(3) P.D. 309. H.C. 6032/99 Suad et al. v. National Planning and Construction Board, 55(5) P.D. 929. H.C. 8666/99 “Temple Mount Trustees” Movement v. Attorney General, 54(1) P.D. 202. H.C. 7128/96 “Temple Mount Trustees” Movement v. Government of Israel, 51(2) P.D. 509. H.C. 4935/93 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 47(5) P.D. 865. H.C. 6403/96 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 50(4) P.D. 241. H.C. 5070/95 The Conservative Movement v. Minister of Religious Affairs (not yet published). C.A. 1684/96 “Tnu La’khayot Likhyot” (Let the Animals Live) v. Hamat Gader Vacation Industries Ltd., 51(3) P.D. 832. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195.

266

Legal Decisions Cited

H.C. 5364/94 Velner et al. v. Rabin et al., 49(1) P.D. 758. H.C. 454/94 Women’s Lobby in Israel v. Government of Israel, 48(5) P.D. 50.

New Zealand Attorney-General v. Shirleen et al., [2003] NZCA 29 (decision released on Feb. 29, 2003). Auckland Unemployed Workers’ Rights Centre Inc. v. Attorney-General, [1994] 3 NZLR 720. Capital Coast Health Ltd. v. New Zealand Medical Laboratory Workers Union, [1996] 1 NZLR 7. Drew v. Attorney-General, [2001] NZCA 207. Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439. Lawson v. Housing New Zealand, [1997] 2 NZLR 474. Lewis v. Real Estate Institute of New Zealand Inc., [1995] 3 NZLR 385. Living Word Distribution Ltd. v. Human Rights Action Group Inc. (Wellington), [2000] 3 NZLR 570. Martin v. Tauranga District Court, [1995] 2 NZLR 419. Mendelssohn v. Attorney-General, [1999] 2 NZLR 268. Ministry of Transport v. Noort, [1992] 3 NZLR 260. Moonen v. Film and Literature Board of Review, [2000] 2 NZLR 9. New Zealand Maori Council v. Attorney-General, [1991] 2 NZLR 129. New Zealand Maori Council v. Attorney-General (No. 2), [1991] 2 NZLR 147. New Zealand Maori Council v. Attorney-General, [1994] 1 NZLR 513 (PC). New Zealand Maori Council v. Attorney-General, [1996] 3 NZLR 140. Ngai Tahu Maori Trust Board v. Director General of Conservation, [1995] 3 NZLR 553. Ngati Apa ki te Waipounamu Trust v. The Queen, [2000] 2 NZLR 659. Puli’uvea v. Removal Review Authority, [1996] 3 NZLR 538. Quilter and Pearl et al. v. Attorney-General, [1998] 2 NZLR 88. R v. A, [1994] 1 NZLR 429. R v. Butcher, [1992] 2 NZLR 257. R v. Donaldson, [1995] 3 NZLR 641. R v. Goodwin, [1993] 2 NZLR 153. R v. Grayson and Taylor, [1997] 1 NZLR 399. R v. Jefferies, [1994] 1 NZLR 290. R v. Kirifi, [1992] 2 NZLR 8. R v. M, [1996] 2 NZLR 659. R v. Pora, [2001] 2 NZLR 37. R v. Poumako, [2000] 2 NZLR 695. R v. Pratt, [1994] 3 NZLR 21. R v. T, [1999] 2 NZLR 602. R v. Te-Kira, [1993] 3 NZLR 257. Rajan v. Minister of Immigration, [1996] 3 NZLR 543.

Legal Decisions Cited

267

Shortland v. Northland Health Ltd., [1998] 1 NZLR 433. Simpson v. Attorney-General, [1994] 3 NZLR 667. Taiaroa v. Minister of Justice, [1995] 1 NZLR 411. Tavita v. Minister of Immigration, [1994] 2 NZLR 257. Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc., [1996] 3 NZLR 10. Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission, [2000] 1 NZLR 265. Treaty Tribes Coalition et al. v. Urban Maori Authorities et al., [1997] 1 NZLR 513.

Pakistan Mohtarma Benazir Bhutto v. Chief of Army Stuff, P.L.D. 1977 S.C. 657. Mohtarma Benazir Bhutto v. President of Pakistan, P.L.D. 1998 S.C. 388. Muhammad Nawaz Sharif v. President of Pakistan and Others, P.L.D. 1993 S.C. 473. Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan, P.L.D. 2000 S.C. 869.

Russia Chechnya case (July 1995) [Constitutional Court of Russia]. Communist Party case (November 1992) [Constitutional Court of Russia]. ISS-MVD case (January 1992) [Constitutional Court of Russia]. Tatarstan case (March 1992) [Constitutional Court of Russia].

Singapore Chng Suan Tze v. Minister of Home Affairs [1988] SLR 132. J. B. Jeyaretnam v. Law Society of Singapore [1989] A.C. 608 (Privy Council).

South Africa Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa, 1996 (4) SA 671 (CC). Case v. Ministry of Safety and Security, 1997 (3) SA 514 (CC). Christian Education South Africa v. Minister of Education, 2000 (4) SA 757 (CC). Du Toit v. Minister of Welfare and Population Development, 2002 (10) BCLR 1006 (CC). DVB Behuising Limited v. North West Provincial Government, 2001 (1) SA 500 (CC). Executive Council of KwaZulu-Natal v. President of the RSA; and Province of the Western Cape v. Minister of Provincial Affairs, 2000 (1) SA 661 (CC). Government of RSA v. Grootboom, 2001 (1) SA 46 (CC).

268

Legal Decisions Cited

In re: Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC). In re: Certification of the Amended Text of the Constitution of the Republic of South Africa, 1997 (2) SA 97 (CC). In re: Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC). In re: Gauteng School Education Bill, 1996 (3) SA 165 (CC). Islamic Unity Convention v. Independent Broadcasting Authority, 2002 (4) SA 294. J and B v. Director General, Department of Home Affairs, (CCT 46/02, decision released on March 28, 2003). Minister of Health v. Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC). Mistry v. Interim National Medical and Dental Council of South Africa, 1998 (4) SA 1127 (CC). Mohamed v. President of the Republic of South Africa, 2001 (3) SA 893 (CC). National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 2000 (2) SA 1 (CC). National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC). National Education Health and Allied Workers Union (NEHAWU) v. University of Cape Town, (CCT 2/02, decision released on Dec. 6, 2002). National Union of Metal Workers of South Africa v. Bader Bop Ltd., (CCT 14/02, decision released on Dec. 13, 2002). Premier, KwaZulu-Natal v. President of the Republic of South Africa, 1996 (1) SA 769 (CC). S v. Bhulwana, 1996 (1) SA 388 (CC). S v. Julies, 1996 (7) BCLR 899 (CC). S v. Makwanyane, 1995 (3) SA 391 (CC). S v. Mbhata, 1996 (2) SA 464 (CC). S v. Motloutsi, 1996 (1) SA 584 (CC). S v. Niemand, 2001 (11) BCLR 1181 (CC). S v. Singo, 2002 (4) SA 858 (CC). S v. Steyn, 2001 (1) SA 1146 (CC). S v. Vermaas, 1995 (3) SA 292 (CC). S v. Williams, 1995 (3) SA 632 (CC). S v. Zuma, 1995 (2) SA 642 (CC). Sanderson v. Attorney General, Eastern Cape, 1998 (2) SA 38 (CC). Satchwell v. President of Republic of South Africa (No. I), 2002 (6) SA 1 (CC) Satchwell v. President of Republic of South Africa (No. II), (CCT 48/02, decision released on March 17, 2003). Shabalala v. Attorney General, Transvaal, 1996 (1) SA 725 (CC). Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC). South African National Defence Union (SANDU) v. Minister of Defence, 1999 (4) SA 469 (CC).

Legal Decisions Cited

269

Western Cape Legislature v. President of the Republic of South Africa, 1995 (4) SA 877 (CC).

Turkey TCC Decision 1/1998 (the Refah [Welfare] Party Dissolution case), January 16, 1998. RCC Decision 57/2001 (the Fazilet [Virtue] Party Dissolution case), June 21, 2001.

United Nations Human Rights Committee (UNHRC) Toonen v. Australia (1994), CCPR/C/50/D/488/1992. Waldman v. Canada (1999), CCPR/C/C7/694/1999.

United States Abrams v. Johnson, 521 U.S. 74 (1997). Adair v. U.S., 208 U.S. 161 (1908). Adarand Constructions, Inc. v. Pena, 515 U.S. 200 (1995). Adkins v. Childer’s Hospital, 261 U.S. 525 (1923). American Communications Association v. Douds, 339 U.S. 382 (1950). Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Brown v. Board of Education, 347 U.S. 483 (1954). Buckley v. Valeo, 424 U.S. 1 (1976). Bush v. Gore, 531 U.S. 98 (2000). Bush v. Vera, 517 U.S. 952 (1996). City of Richmond v. J. A. Croson, 488 U.S. 469 (1989). Coppage v. Kansas, 236 U.S. 1 (1915). Debs v. United States, 249 U.S. 211 (1919). Dennis v. United States, 341 U.S. 494 (1951). Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999). Dred Scott v. Sanford, 60 U.S. 393 (1856). Furman v. Georgia, 408 U.S. 238 (1972). Gitlow v. People of the State of New York, 268 U.S. 652 (1925). Gregg v. Georgia, 428 U.S. 153 (1976). Hammer v. Dagenhart, 247 U.S. 251 (1918). Korematsu v. United States, 323 U.S. 214 (1944). Lawrence et al. v. Texas (decision released June 26, 2003). Lochner v. New York, 198 U.S. 45 (1905). McCleskey v. Kemp, 481 U.S. 279 (1987). Miller v. Johnson, 515 U.S. 900 (1995). R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

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Legal Decisions Cited

Romer v. Evans, 517 U.S. 620 (1996). San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Schenck v. United States, 249 U.S. 47 (1919). Shaw v. Hunt, 517 U.S. 899 (1996). Shaw v. Reno, 509 U.S. 630 (1993). Texas v. Johnson, 491 U.S. 397 (1989). U.S. v. Lopez, 514 U.S. 549 (1995). West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Yates v. United States, 354 U.S. 298 (1957).

Acknowledgments

Writing a comprehensive book on comparative constitutional law and politics requires mastery of several bodies of scholarship and close acquaintance with constitutional politics and jurisprudence worldwide. I could not have possibly completed a project of such scope and magnitude without the support of many colleagues and friends. My colleagues at the University of Toronto—especially Sylvia Bashevkin, David Cameron, Peter Solomon, Janice Stein, Rob Vipond, and Melissa Williams—created a nearly ideal environment in which to pursue my interest in comparative constitutional politics. I am also deeply indebted to Mark Graber, Ian Shapiro, Rogers Smith, Mark Tushnet, and Joseph Weiler for their ongoing mentorship, encouragement, and trust. They believed in this project and gave it a chance long before it deserved such confidence. Other friends and colleagues who provided helpful commentary on earlier versions of several of the book’s sections include Fred Aman, Carl Baar, David Cameron (Yale), Chris Eisgruber, Leslie Goldstein, Michael Mandel, Lorraine Weinrib, and Keith Whittington. I gratefully acknowledge the generous research grants provided by Princeton University’s Program in Law and Public Affairs, Yale University’s Center for International and Area Studies, the University of Toronto’s Connaught Fund, and Canada’s Social Sciences and Humanities Research Council. I also wish to thank Donna Bouvier, Dan Friedman, Catherine Frost, Jacqueline Krikorian, Erin Metzler, Helen Moffett, and Sharon Tsang for their skillful editorial assistance; Mike Aronson at Harvard University Press for his enthusiastic support of this project; Tmima and Arie Shachar for their openmindedness and goodwill; and Ralph and Roz Halbert for their warm hospitality. Special thanks to Naomi Ernst-Hirschl for her unflagging sympathy and support. 271

272

Acknowledgments

Most of all, I owe the greatest debt of gratitude to Ayelet Shachar for her infinite wisdom and boundless love, and to our beautiful son, Shai, for illuminating our lives in such a wonderful, unimaginable way. I thank the following journals and publishers for permission to reprint in modified form some of the preliminary arguments I presented in: “Repositioning the Judicialization of Politics: Bush v. Gore as a Global Trend,” Canadian Journal of Law and Jurisprudence 15 (2002): 191–218; “The Political Origins of the New Constitutionalism,” Indiana Journal of Global Legal Studies 11(1) 2003 (published by Indiana University Press); “Negative Rights vs. Positive Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order,” Human Rights Quarterly 22 (2000): 1060–1098 (published by the Johns Hopkins University Press); and “The Political Origins of Judicial Empowerment through the Constitutionalization of Rights: Lessons from Four Polities,” Law and Social Inquiry 25 (2000): 91–149 (published by the University of Chicago Press). The first verse of Leonard Cohen and Sharon Robinson’s poem “Everybody Knows” is reprinted with the permission of SONY/ATV Music Publishing, ©1988 Sony/ATV Songs LLC, MCA Music Inc., Robinhill Music; all rights on behalf of Sony/ATV Songs LLC administered by Sony/ATV Music Publishing, 8 Music Sq. West, Nashville, TN 37203.

Index

Aboriginal Canadians, 195–198; education, 159; housing, 161; representation, 164; wealth distribution, 219 Abraham, David, 100 Ackerman, Bruce, 189–190, 222, 226n13, 256n46, 260n6 Adler et al. v. The Queen, 129 African National Congress (ANC), 28, 89, 90, 92–96, 183, 185, 191 A.-G. Quebec v. Blaikie, 179 A.-G. Quebec v. Quebec Protestant School Board, 179 Agudat Israel party (Israel), 59 Albania, 204 Alberta Press case, 76 Alberta Reference case, 140 Aloni, Shulamit, 233n10 Alter, Karen, 226n10, 232n47 Amicus curiae. See Interveners ANC. See African National Congress Apartheid. See South Africa APEC. See Asia-Pacific Economic Conference Appeal process, 103; Canada, 20, 103; United States, 20, 103, 200; Israel, 23– 24, 103; New Zealand, 27, 103; South Africa, 184 Arab-Israelis/Arabs in Israel, 55–57, 58, 65, 67, 110, 137–138, 234n22, 242n11; wealth distribution, 55–56, 156, 219; housing, 138, 206–207; education, 160, 249n116; representation, 164

Arens, Moshe, 58, 59 Aresenault-Cameron v. Prince Edward Island, 180 Argentina, 45, 215, 231n40, 232n47 Aridor, Yoram, 58 ASEAN, 215 Ashkenazi Jews, 22; role in Israeli constitutional transformation, 50–51, 53–59, 63–64, 173; Israeli ethnic and national origin cleavages, 51; decline in political representation, 54–59; wealth distribution, 55–56, 156; backlash against, 59– 60; judicial empowerment, 60, 64–65, 65–74 Asia-Pacific Economic Conference, 83 Askov v. The Queen, 114, 115 Association, freedom of. See Labor rights Austerity Package cases, 209 Australia, 32, 83, 191, 203, 223 Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa, 190–192 Badger case. See R. v. Badger Baigent’s case. See Simpson v. Attorney General Bakan, Joel, 244n52, 247n85 Barak, Aharon, 63–64, 70, 73, 145, 169, 234n21, 235n27, 242n10, 248n107, 248n108, 250n145, 251n146 Barak, Ehud, 57 Barzilai, Gad, 229n14

273

274

Index

Basic Laws (Israel), 21–24, 52, 54–55, 60, 62–64, 175, 232n4; interpretative approach by Supreme Court of Israel, 22– 23, 65–68, 70–73; property rights, 23; social and economic rights, 62–63, 136– 139; critics, 72; judiciary, 72; nature of cases, 103–108; formal judicial review provisions, 227n11. See also Freedom of Occupation; Government, The; Human Dignity and Liberty Bavli v. The Grand Rabbinical Court, 175 Beatty, David, 237n58, 247n83 Begin, Menachem, 54, 59 Beiner, Ronald, 252n16 Belgium, 126, 191, 215 Ben-Gurion, David, 52, 53–54 Ben-Israel, Ruth, 63 Ben-Menahem, Eli, 58 Bibi, Yigal, 73 Bickel, Alexander, 187–188, 256n39 Biko, Steve, 192 Bilbisi v. General Security Service, 111 Bill of Rights 1960 (Canada). See Canadian Bill of Rights 1960 Bill of Rights 1993 (South Africa), 28–29, 90, 93; nature of cases, 103–108 Bill of Rights 1996 (South Africa), 29–30, 90, 93; nature of cases 103–108; 185. See also South Africa; South African Constitutional Court Blaikie cases. See A.-G. Quebec v. Blaikie BNA Act 1867. See British North America Act 1867 Bokros cases. See Austerity Package cases Bolivia, 8 Bork, Robert H., 225n4 Botswana, 48 Boy Scouts of America v. Dale, 246n77 Bracha, Baruch, 63, 233n10 Brazil, 8, 95, 158, 215 British North America Act 1867, 17, 19, 81, 226n1 Broadcasting Assets case. See New Zealand Maori Council v. Attorney General, no. 2 Brown v. Board of Education, 149–150, 152, 207–208

Buckley v. Valeo, 101, 163 Bulgaria, 204 Bush v. Gore, 163, 189, 208–209 Bush v. Vera, 163 Butcher case. See R v. Butcher Caldeira, Gregory, 256n48 Canada: constitution, 8, 17–21, 75–81; application of hegemonic preservation thesis, 75–82; Quebec, 75–77, 79–82, 172, 178–182, 192; economy, 77–78; judicial empowerment, 78–82; education, 79– 80, 81–82, 129–139, 147, 159, 179, 180, 247n91; language, 79–80, 81–82, 180; Bill 101, 80; wealth distribution, 156– 157, 219; housing, 160–161; representation, 163–164; labor, 165; immigration, 236n45. See also Aboriginal Canadians; Canadian Charter of Rights and Freedoms; Supreme Court of Canada Canadian Bill of Rights 1960, 20, 76, 236n47, 244n38 Canadian Charter of Rights and Freedoms, 17–21, 75–79; interpretative approach to, by Supreme Court of Canada, 18, 21, 80; nature of cases, 103–108 Capital Coast Health Ltd. v. New Zealand Medical Laboratory Workers Union, 146 Case v. Ministry of Safety and Security, 121 Cato Institute, 166 Caygill, David, 238n74 Center Party (Israel), 58, 59 CER. See Closer Economic Relations Certification case. See In re: Certification of the Constitution of the Republic of South Africa, 1996 Certification process (South Africa), 184– 186, 189 Charlottetown Accord, 128 Charter of Rights and Freedoms. See Canadian Charter of Rights and Freedoms Chaskalson, Arthur, 133 Chechnya case, 209

Index Chile, 191, 223 China, 97 Chng Suan Tze v. Minister of Home Affairs, 204 Choudhry, Sujit, 232n50 CIP case. See R. v. CIP Inc. Closer Economic Relations (CER), 83 CODESA. See Convention for a Democratic South Africa Coetsee, H. J., 92 Colombia, 8 Committee on Human Rights. See United Nations Committee on Human Rights Common-law couples, in Canada, 20. See also Equality rights; Gay/lesbian rights Communist Party case, 205 Comparative constitutional politics, study of, 4, 5–10, 222–223 Compromise model of judicial review. See Preferential model of judicial review Congo, 158 Congress of South African Trade Unions (COSATU), 97 Consociationalism, 35, 186 Constituent Assembly (Israel), 52 Constitution: Canada, 8, 17–21, 75–81; Israel, 8–9, 21–24, 52–54, 62–64; New Zealand, 8–9, 24–27, 82–83, 87–89; South Africa, 9–10, 27–30, 90–94 Constitution, 1983 (South Africa), 91 Constitution Act 1982 (Canada), 17–21, 75–76, 79, 226n1 Constitutional Assembly (South Africa), 28, 93, 184–186 Constitutionalization, common scenarios of, 7–10 Constitutional supremacy, shift from parliamentary sovereignty, 1–3, 30 Constitutional theory: Bruce Ackerman, 189–190, 226n13, 256n46, 260n6; Alexander Bickel, 187–188, 256n39; Robert Dahl, 153, 172, 232n46, 252n12, 252n13, 254n3; Ronald Dworkin, 1–4, 17, 125, 150, 172, 188, 225n3, 228n3, 251n5, 256n42; John Hart Ely, 188–189, 256n43; Harold Laski, 150, 251n6; Mark

275

Tushnet, 225n4, 240n1, 252n16; Jeremy Waldron, 225n4, 246n78, 252n16 Constitutional transformation theories, 7– 8, 11–17, 31–42, 212–213, 213–222; hegemonic preservation thesis, 11–17, 42– 49, 97–99, 213–222; democratic proliferation/transition thesis, 31–32; evolutionist theories, 31, 32–34; social contract– based school, 31, 33; functionalist explanations/system-needs based, 31, 34–36; weaknesses, 36–37; institutional economics model, 37–38; electoral market approach, 38–42; application of hegemonic preservation thesis, 50–97 Convention for a Democratic South Africa, 28, 93 COSATU. See Congress of South African Trade Unions Czech Republic, 8 Dahl, Robert, 153, 172, 232n46, 252n12, 252n13, 254n3 Danilowitch case. See El Al Airlines Ltd. v. Danilowitch Declaration of Independence (Israel), 22, 52 Delgamuukw v. British Columbia, 107, 197 Democracy, 189; judicial empowerment and, 1–3; South African transition, 28– 30; expansion of judicial power and, 31– 32; federalism, 32; transitions to, 41, 42. See also Democratic proliferation/transition thesis Democratic Party (South Africa), 94 Democratic proliferation/transition thesis of constitutional transformation, 31–32; weaknesses, 36 Denmark, 8, 36 Department of Commerce v. United States House of Representatives, 163 Deri, Arieh, 71 Disraeli, Benjamin, 167 Distributive justice, 100–103, 198 Dolphin Delivery case. See Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd.

276

Index

Douglas, Roger, 238n74 Dovrat, Aharon, 60 Due process rights, 54, 102, 108–118, 127; Israel, 109–112; New Zealand, 109, 112– 113, 117; South Africa, 109, 113–114; Canada, 109, 114–117, 243n37; United States, 118 Dunmore v. Ontario, 141–142 Du Toit v. Minister of Welfare and Population Development, 124–125 DVB Behuising Limited v. North West Provincial Government, 184 Dworkin, Ronald, 1–4, 8, 17, 125, 150, 172, 188, 225n3, 228n3, 251n5, 256n42 Eastern Europe, 31, 47, 53 Economic development model. See Institutional economic models Economic freedoms, 166–168 Education, 159–160; South Africa, 29, 94, 132; Canada, 79–80, 81–82, 129–139, 147, 159, 179, 180, 247n91; New Zealand, 135–136, 159–160; Israel, 136– 138, 160, 249n116 Egan v. Canada, 107, 122 Egypt, 8, 31, 42, 97, 223, 240n100 El Al Airlines Ltd. v. Danilowitch, 123, 125 Elazar, Daniel, 233n10 Eldridge v. British Columbia, 130, 138 “Electoral market” approach to constitutional transformation, 38–42; reduction in legislative costs variant, 39–40; application to Israel, 42–43; weaknesses, 42. See also Hegemonic preservation thesis Elias, Sean, 88 Elster, Jon, 226n9, 228n4, 229n12 Ely, John Hart, 188–189, 260n43 Employment Contracts Act (1991) (New Zealand), 84 Epp, Charles, 260n4 Epstein, Lee, 232n44, 259n82 Equality rights, 102, 106, 122–125; Canada, 20, 39, 122–125, 128, 130; South Africa, 29, 30, 123–125, 133–134, 161– 162; Israel, 65, 67–68, 123, 125, 176– 177, 206–207; New Zealand, 123–125 Equatorial Guinea, 158

Ethiopia, 51 Europe, expansion of democracy, 31, 41– 42, 47. See also Eastern Europe; European Union European Community, Charter of Fundamental Rights, 126 European Convention on Human Rights, 7, 8, 36, 48, 97 European Court of Human Rights, 45, 48, 141, 215, 221, 245n77 European Court of Justice, 45, 221 European Union, 1, 2, 4, 32, 36, 215; Charter of Social and Collective Rights, 12; intergovernmental thesis, 45 Evolutionist thesis of constitutional transformation, 31, 32–34; socioeconomic variant, 32; cultural variant, 32; human rights post-WWII, 32–33; separation of powers variant, 33, 34; diffusion of political power, 33, 34; weaknesses, 36–37 Ewing, K. D., 247n82, 256n41 Expression. See Freedom of expression Federalism: Canada, 19, 79–81, 195; South Africa, 29, 30, 183–185; judicial review, 32 Federalist Papers, 153, 252n10 Feeley, Malcolm, 152, 153, 229n15, 251n9 Feeney case. See R. v. Feeney Fiji, 209 Fiji v. Prasad, 209 Finlay v. Canada (Minister of Finance), 128 Fiscal Responsibility Act (1994) (New Zealand), 84 Fiss, Owen, 64, 149, 251n3 Fletcher, George, 6 Fletcher, Joseph, 237n59, 237n60 Flickinger v. Crown Colony of Hong Kong, 26 France, 7, 38, 200, 215 Freedom Charter, 95 Freedom from discrimination. See Equality rights Freedom House, 166 Freedom of association. See Labor rights Freedom of expression, 102; United States,

Index 118; Canada, 118–120; New Zealand, 120–121; South Africa, 121–122 Freedom of Occupation (Basic Law), 22, 54, 144–146, 174–176, 227n9; override clause, 22, 174; limitations clause, 22 Friedman, Daniel, 233n10 Fudge, Judy, 237n58 Functionalist thesis of constitutional transformation, 31, 34–36; systemic efficiency variant, 34; structural organic variant, 34, 35; consociationalism variant, 35; application to Israel, 35; administrative state variant, 35; supranational regimes variant, 35–36; weaknesses, 36–37 Gafni, Moshe, 71–72 Galanter, Mark, 258n70 Garrett, Geoffrey, 226n10, 231n35 Gay/lesbian rights, 20, 39, 120–125, 245n77. See also Equality rights General Security Service case. See Bilbisi v. General Security Service Germany, 7, 32, 48, 64, 67, 69, 97, 209, 223 Gesher, 58, 59 Ghana, 7, 97 Gibson, James, 235n32, 256n48, 260n7 Gill, Stephen, 47, 231n43 Ginsburg, Tom, 41 Glasbeek, Harry, 219, 237n58, 260n5 Glendon, Mary Ann, 48, 232n48, 252n16 G’nimmat v. State of Israel, 110 Goldstein, Leslie, 226n11 Goodwin case. See R v. Goodwin Gosselin v. A-G. Quebec, 129 Government, The (Basic Law), 22, 54, 62, 63 Government of RSA v. Grootboom, 132– 133 Graber, Mark, 39, 225n5, 230n25 Grayson case. See R v. Grayson and Taylor Great Britain. See United Kingdom Greece, 8, 41–42 Green Party (New Zealand), 86 Grootboom case. See Government of RSA v. Grootboom

277

Hamilton, Alexander, 153, 252n10 Hammer, Zvulun, 123 Hand, Learned, 153 Ha’Negbi, Tzahi, 58, 71 Harari Resolution (Israel), 52 Hegemonic preservation thesis, 11–16, 42– 48, 97–99, 213–222; Israel, 50–74; Canada, 75–82; New Zealand, 82–89; South Africa, 89–97 Hein, Gregory, 236n51 Helmke, Gretchen, 232n47 Heritage Foundation, 166 Herut party (Israel), 54, 58 Holmes, Stephen, 247n84 Hong Kong, 48, 83, 97, 223 Horowitz, Donald, 258n70 Horowitz, Yigal, 58 Housing, 160–161; Arab-Israelis/Arabs in Israel, 138, 206–207; aboriginal Canadians, 160–161; Maoris, 161; South Africa, 161 Howard, John, 203 Howe, Paul, 236n51, 237n59, 237n60 Human Dignity and Liberty (Basic Law), 22–23, 54, 110–112, 123, 136–139, 227n9; limitations clause, 22 Human Rights Act 1993 (New Zealand), 25, 89, 237n64 Human Rights Committee. See United Nations Committee on Human Rights Human Rights Review Tribunal (New Zealand), 25 Hungary, 8, 48, 204–205, 209, 223, 245n77 Hutchinson, Allan, 236n49, 237n58 Iacobucci, Frank, 141 ILO. See International Labour Organization IMF. See International Monetary Fund Implied bill of rights: Israel, 52; Canada, 75–76 India, 7, 32, 42, 48, 53, 126, 202–203, 223, 246n81, 258n72 In re: Certification of the Constitution of the Republic of South Africa, 1996, 184– 186

278

Index

In re: Constitutionality of the Liquor Bill, 183–184 In re: Gauteng School Education Bill, 132 Institutional economic models of constitutional transformation, 37–38; economic growth variant, 37; bureaucratic supervision variant, 38; weaknesses, 38 Inter-American Court of Human Rights, 215 Intergovernmental thesis, 45 Interim Bill of Rights 1993 (South Africa). See Bill of Rights 1993 International Covenant of Civil and Political Rights, 24, 26, 87 International Covenant on Economic and Social Rights, 126, 134 International Labour Organization, 126, 165 International Monetary Fund, 46–47, 216 Interveners (Canada), 21 Iran, 59 Islamic Unity Convention v. Independent Broadcasting Authority, 122 Israel: constitution, 8–9, 21–24, 52–54, 62– 64; “as a Jewish and democratic state,” 22, 51, 52–53, 138, 172– 173, 174, 186, 206, 227n10; “who is a Jew,” 22, 39, 172, 175, 177, 186; functionalist thesis, 35; constitutional reform, 42, 54–59; application of hegemonic preservation thesis, 50–74; constitutional history, 51–54; immigration, 51, 55–57, 177–178, 233n12; ethnic and national origin cleavages, 51, 55–57, 173; representation changes in Knesset, 54–59, 164; Law of Return, 55, 177–178, 255n16; wealth distribution, 55–56, 94–95, 156, 219; municipal politics, 59–60; economic elites, 60–62; economy, 60–66, 156; judicial empowerment, 60, 64–65, 65–74; labor, 62–63; legal profession, 63–64; public opinion, 68–73; military law, 111– 112; gay and lesbian rights, 123–125; education, 136–138, 160, 249n116; housing, 138, 206–207; labor, 165; judicial-

ization of politics, 173–178, 200–202, 206–208. See also Arab-Israelis/Arabs in Israel; Ashkenazi Jews; Basic Laws; Knesset; Mizrahi Jews; Supreme Court of Israel Israel Ba’Aliyah party, 59 Israel Beiteinu party, 59 Israel v. Nahamias, 110 ISS–MVD case, 205 Italy, 7 Jackson, Robert H., 31 Jacobsohn, Gary, 54, 233n8, 235n36 Jamaica, 48 J and B v. Director General, Department of Home Affairs, 124 Japan, 41 JCPC. See Judicial Committee of the Privy Council Jefferies case. See R v. Jefferies Judicial Committee of the Privy Council (JCPC), 80–81, 193, 194, 204 Judicial empowerment: democracy and, 1– 3; critics, 3; American dominance of scholarship, 4–7, 222–223; constitutional transformation theories, 7–8, 31– 42, 212–213; hegemonic preservation thesis, 11–17, 42–49, 97–99, 213–222; impact on socioeconomic factors, 14–15; impact on politics, 15; Israel, 50–74; Canada, 75–82; New Zealand, 82–89; South Africa, 89–97 Judicialization of politics, 169–172, 208– 210, 221–222; judicialization of foundational national-building questions, 172– 190; judicialization of fundamental restorative justice dilemmas, 190–199. See also Political reaction to judicial divergence Juristocracy, 1, 222–223. See also Constitutional transformation theories; Hegemonic preservation thesis; Judicial empowerment; Judicialization of politics Kach party (Israel), 59 Kahler, Miles, 45, 231n39

Index Karamanh, Constantine, 41 Katsav, Moshe, 59 Katz v. Jerusalem Regional Rabbinical Court, 175 Kazakhstan, 204 Keegstra case. See R. v. Keegstra Kenney, Sally, 226n10 Kenya, 97 Kirifi case. See R v. Kirifi Klerk, F. W. de, 89, 93, 95 Klug, Heinz, 256n38 Knesset, 52; relationship with Supreme Court of Israel, 21–22, 35; override clause, 22, 174; constitutional reform, 43, 54–60; Ashkenazi dominance pre– 1990s, 50, 51; decline of Ashkenazi dominance, 54–60; origins, 54; 1981– 1999 electoral results, 58–59; judicial empowerment, 60; public opinion, 69; Society and Welfare committee, 156; representation, 164. See also Basic Laws; Israel; Supreme Court of Israel Knopff, Rainer, 20, 225n7, 245n66 Kruger, Paul, 90 KwaZulu-Natal, Executive Council of v. President of the RSA, 183 Labor, 164–167; New Zealand, 165; Canada, 165; South Africa, 165; Israel, 165 Labor party (Israel), 43, 52, 55, 57, 58–59, 68 Labor rights, 102, 139–146; South Africa, 29, 94, 96–97, 143–144, 146; Israel, 62– 63, 144–146; 173–176; Canada, 140– 143; New Zealand, 146–148. See also Freedom of Occupation; International Labour Organization; Labor Labour Party (New Zealand), 85, 87 Labour Relations Act (South Africa), 94 Lahav, Pnina, 233n6, 233n7 Lamer, Antonio, 18, 128, 227n2 Landes, William, 40, 41, 230n26 Land Registration case. See DVB Behuising Limited v. North West Provincial Government Lange, David, 85

279

Language rights: South Africa, 29, 94; Canada, 79–80, 81–82, 180; New Zealand, 193 Lapid, Yosef, 67 Laski, Harold, 150, 251n6 Laskin, Bora, 80 Latin America, 1, 31, 191 Lavigne v. Ontario Public Service Employees Union, 141 Law of Return, 55, 177–178, 255n16 Lawrence v. Texas, 245n77 Law Society of Upper Canada v. Skapinker, 18 Lawson v. Housing New Zealand, 134 Lazare, Daniel, 5 Lebanon, 110, 111 LeDain, Gerald, 140 Legislative override (India), 202, 203 Lesbian rights. See Gay/lesbian rights Lévesque, René, 76 Libai, David, 233n10 Liberal Party (Israel), 58 Liberman, Avigdor, 73 Lijphart, Arend, 237n62, 237n63 Likud party (Israel), 43, 54–55, 57, 58– 59 Limitations clause: Canada, 18, 79; Israel, 22; South Africa, 29, 94, 192 Linn, Uriel, 58, 61, 233n10 Liquor Bill case. See In re: Constitutionality of the Liquor Bill Livnat, Limor, 58 Lochner v. New York, 101 Locus standi. See Standing Lustick, Ian, 65 Maastricht case, 209 Mabo v. Queensland [No 2], 203 Magalhaes, Pedro, 41–42 Mahe v. Alberta, 107, 180 Mahomed, Ismail, 132 Makwanyane case. See S v. Makwanyane Mandel, Michael, 95, 217, 225n7, 236n49, 239n94, 259n1 Mandela, Nelson, 28, 90, 95, 183, 240n96 Manfredi, Christopher, 225n7

280

Index

Manitoba Language case. See Reference Re: Manitoba Language Rights Mann, Kenneth, 233n10 Maori Electoral Option case. See Taiaroa v. Minister of Justice Maori Fisheries Allocation I case. See Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc. Maoris (New Zealand), 85–86, 89, 193– 195; education, 159–160; housing, 161; language rights, 193; representation, 194–195; wealth distribution, 219 Maoz, Asher, 233n10 Mapai party (Israel), 52, 53 Marbury v. Madison, 18, 22–23, 227n13 Marshall I and II cases. See R. v. Marshall I; R. v. Marshall II Martin v. Tauranga District Court, 112 Masalla, A., 58 Mattli, Walter, 226n10 Mautner, Menachem, 234n24 McCubbins, Mathew, 230n21, 254n2 McLachlin, Beverley, 115, 129 Meatrael cases, 173–176 Mendelssohn v. Attorney-General, 135 MERCOSUR, 215 Meretz party (Israel), 43, 54–55, 57, 58, 59 Meridor, Dan, 54, 58, 72, 233n10 Mexico, 8, 42, 45 Meyer, Roelf, 94, 239n90 Miller, Raymond, 85 Mills case. See R. v. Mills Milo, Ronnie, 58 Milton, 5 Minister of Health v. Treatment Action Campaign, 133 Ministry of Transport v. Noort, 112 Minow, Martha, 251n1 Mishler, William, 235n32, 240n1 Mistry v. Interim National Medical and Dental Council of South Africa, 114 Mizrahi Jews, 156, 164; Israeli ethnic and national origin cleavages, 51, 55–57; role in Israeli constitutional transformation, 52, 55–59; wealth distribution, 55–56,

156; Knesset representation, 58–59, 164; judicial empowerment, 60, 64–65, 65– 74; voting patterns, 234n17 Modai, Yitzhak, 58 Mohammed Ahmad Kan v. Shah Bano, 202–203, 258n72, 258n73 Moledet party (Israel), 59 Moonen v. Film and Literature Board of Review, 120–121 Moravcsik, Andrew, 45, 231n37, 231n40 Morton, F. L., 20, 225n7, 227n5, 236n49, 245n66 Moshevitz, David, 60 Motloutsi case. See S v. Motloutsi Musharraf, Pervez, 204, 209 M v. H, 20, 123, 124–125 Mxenge, Griffith, 192 NAFTA. See North American Free Trade Agreement Nagel, Jack, 238n66, 238n71, 238n74 Nahamias case. See Israel v. Nahamias National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 124–125 National Education Health and Allied Workers Union (NEHAWU) v. University of Cape Town, 143 National Party (South Africa), 89–94, 191 National Religious Party (Israel), 59 National Union of Metal Workers of South Africa v. Bader Bop Ltd., 143–144 National Union party (Israel), 59 Nation-building, 170–190; Israel, 172–178, 186, 190, 192; Canada, 172, 178–182, 186, 190, 192; South Africa, 172, 183– 186, 190 NATO, 215 Nedelsky, Jennifer, 256n47 Neoconservatism. See Neoliberalism Neoliberalism, 3, 53, 54, 59, 64, 98, 147– 148, 150–151, 154–158, 164–167, 249n122; Israel, 60–66; Canada, 77–78; New Zealand, 83–85; South Africa, 96– 97 Netanyahu, Benjamin, 59

Index Netherlands, 223 Nevirapine case. See Minister of Health v. Treatment Action Campaign New Zealand: constitution, 8–9, 24–27, 82–83, 87–89; legislature/judicial relationship, 24–25; role of attorney general and NZBORA, 25; preferential model of judicial review, 25–26; international human rights covenants, 25–27; representation, 26, 194; judicial empowerment, 83, 87–89; economy, 83–85; ethnic makeup, 85–86; immigration, 85–86; Maoris, 85–86, 89, 193–196; political parties and the electoral results, 86–87; high courts, 103–104; education, 135– 136, 159–160; wealth distribution, 157– 158, 219; labor, 165; judicialization of politics, 193–196; exports, 237n65, 257n57. See also Maoris; New Zealand Bill of Rights Act 1990; New Zealand Court of Appeal; Treaty of Waitangi New Zealand Bill of Rights Act 1990 (NZBORA), 24–27, 83, 87–89; role of attorney general, 25; interpretative approach by New Zealand Court of Appeal, 25–27, 87–89; nature of cases, 103– 108 New Zealand Court of Appeal (NZCA), 25– 27; relationship with legislature, 24; interpretative approach to NZBORA, 25– 27, 87–89; international human rights covenants, 25–27; caseload, 26–27, 103– 108; appeal process, 27, 103. See also Due process rights; Equality rights; Freedom of expression; Labor rights; Property rights; Social and economic rights New Zealand Maori Council v. Attorney General, 193 New Zealand Maori Council v. Attorney General, no. 2, 193 New Zealand party, 85 Nicaragua, 8 Nigeria, 95, 97 Nissim, Moshe, 58 Noort case. See Ministry of Transport v. Noort

281

North, Douglass, 34, 37, 229n17, 230n19 North American Free Trade Agreement (NAFTA), 45, 77, 215, 236n50 Norway, 220 Notwithstanding clause. See Override clause NP. See National Party Nussbaum, Martha, 246n80 NZBORA. See New Zealand Bill of Rights Act 1990 NZCA. See New Zealand Court of Appeal Occupation. See Freedom of Occupation; Labor rights Occupied Territories, 110, 111, 234n22, 242n11 O’Connor case. See R. v. O’Connor OECD. See Organization for Economic Cooperation and Development Olmert, Ehud, 58 Ometz party (Israel), 59 One Nation party (Israel), 59 O’Regan, Kate, 250n137 Organization for Economic Cooperation and Development (OECD), 157–158 Override clause: Canada, 18, 79, 174; Israel, 22, 174. See also Legislative override PAC. See Pan Africanist Congress Pakistan, 31, 204, 209, 223 Palestinians, 110–111, 173, 201 Palmer, Geoffrey, 85, 87–88, 134, 238n73, 238n74, 238n75, 238n77, 239n80 Palmer, Matthew, 238n75 Pan Africanist Congress, 185 Parliamentary sovereignty: shift to constitutional supremacy, 1–3, 30; Canada, 21, 76; Israel, 21, 52–53; New Zealand, 24, 25, 27, 82–83, 88; preferential model of judicial review, 25–26; South Africa, 89–92 Parliamentary supremacy. See Parliamentary sovereignty Parsons, Talcott, 228n2 Parti Québécois (Canada), 76

282

Index

Patriation Reference case. See Reference Re: Resolution to Amend the Constitution Paz, Ophir, 73 Pearson, Lester, 78 Pekelman, D., 233n10 Peled, Yoav, 233n14, 233n15, 234n18 Peres, Shimon, 59 Peretti, Terri Jennings, 258n71 Peretz, Amir, 58, 59 Peru, 8 PNURA. See Promotion of National Unity and Reconciliation Act Poland, 8 Political question doctrine, 208 Political reaction to judicial divergence, 15, 199–208 Population Registration Act 1950 (South Africa), 89 Pora case. See R v. Pora Poraz, Avraham, 233n10 Portugal, 8, 41–42, 126 Porush, Menachem, 72 Positive rights, 102, 105–108, 125– 139,146–148, 241n8. See also Labor rights; Social and economic rights Posner, Richard, 40, 41, 230n26 Pratt case. See R v. Pratt Preferential model of judicial review, 25– 26 Privacy Act of 1993, 89 Privy Council. See Judicial Committee of the Privy Council Promotion of National Unity and Reconciliation Act (PNURA) (South Africa), 191– 192 Proper, Dan, 60 Property rights, 37, 97, 127, 139; Israel, 23; Canada, 77; New Zealand, 88; South Africa, 94–95 Prosper case. See R. v. Prosper Protestant School Board case. See A.-G. Quebec v. Quebec Protestant School Board Putnam, Robert, 154, 252n14 Qa’adan v. The Jewish Agency, 206–207 Quebec Veto Reference case. See Reference Re:

Objection by Quebec to a Resolution to Amend the Constitution Quilter and Pearl et al. v. Attorney-General, 123, 125 Rabbinical courts, 66–68, 174–176 Rabin, Yitzhak, 56, 68 Radio Frequencies case. See New Zealand Maori Council v. Attorney General Ramseyer, Mark, 41, 231n27 R.A.V. v. City of St. Paul, 118 Rawls, John, 246n78 Redistribution of Land Rights Act (South Africa), 162 Reference Re: Manitoba Language Rights, 180 Reference Re: Objection by Quebec to a Resolution to Amend the Constitution, 179 Reference Re: Resolution to Amend the Constitution, 179 Reference Re: Secession of Quebec, 81–82, 172, 181–182, 186, 189, 190 Reichman, Uriel, 63, 233n10 Representation, 162–164, 253n38; New Zealand, 26, 194; Israel, 54–59, 164; United States, 163; Canada, 163–164 Republican Constitution 1961 (South Africa), 90 Restorative justice, 170–172, 190–199; Canada, 192, 195–198; Israel, 192; New Zealand, 193–195, South Africa, 198–199 Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada, 143 Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery Ltd., 142 Ribeiro, Fabian, 192 Richardson, Sir Ivor, 27 Riker, William, 153 Rivlin, Reuven, 58 RJR MacDonald Inc. v Canada, 120 Roach, Kent, 226n7, 243n37 Rosenberg, Gerald, 152, 207–208, 251n8, 258n71, 259n86

Index Rozen-Zvi, Ariel, 233n10 Rubin, Edward, 152, 153, 229n15, 251n9 Rubinstein, Amnon, 54, 72, 233n10 Russell, Peter, 236n51, 237n60 Russia, 205, 209, 223 R v. A, 112 R. v. Badger, 197 R. v. Blais, 197 R v. Butcher, 112 R. v. CIP Inc., 117 R. v. Feeney, 115–116 R v. Goodwin, 112 R v. Grayson and Taylor, 112 R v. Jefferies, 112 R. v. Keegstra, 119 R v. Kirifi, 112 R v. M, 117 R. v. Marshall I, 197 R. v. Marshall II, 197 R. v. Mills, 116 R. v. O’Connor, 116 R v. Pora, 26 R v. Pratt, 112 R. v. Prosper, 128 R. v. Seaboyer, 116 R. v. Sharpe, 119 R. v. Sparrow, 196 R. v. Stinchcombe, 115 R v. T, 117 R v. Te-Kira, 112 R. v. Zundel, 119 R.W.D.S.U. v Pepsi-Cola Canada. See Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada SACC. See South African Constitutional Court Same-sex partnerships. See Equality rights; Gay/lesbian rights Sanderson v. Attorney General, 114 Sarat, Austin, 149 Satchwell v. President of Republic of South Africa, 124 SCC. See Supreme Court of Canada Schachter v. Canada, 130, 138

283

Scheingold, Stuart, 198, 258n66 Schneiderman, David, 231n41, 247n85 Schwimer, Al, 61 SCI. See Supreme Court of Israel Seaboyer case. See R. v. Seaboyer Secession Case. See Reference Re: Secession of Quebec Secession of Quebec reference. See Reference Re: Secession of Quebec Sen, Amartya, 126, 246n80 Separation of powers, 169; democracy, 32, 127; South Africa, 30, 184 Sexual preference/orientation. See Gay/lesbian rights Shabalala v. Attorney General, 114 Shachar, Ayelet, 232n1, 258n72 Shafir, Gershon, 233n15, 234n18 Shah, Sajjad Ali, 204 Shahal, Moshe, 233n10 Shah Bano case. See Mohammed Ahmad Kan v. Shah Bano Shamir, Ronen, 234n24 Shamir, Yitzhak, 59 Shapira, A., 233n10 Shapiro, Ian, 96, 225n4, 240n97 Shapiro, Martin, 226n13, 229n6 Sharif, Nawaz, 204, 209 Sharon, Ariel, 58, 59, 73 Sharpe case. See R. v. Sharpe Shas party (Israel), 57, 68, 71, 178 Shaw v. Reno, 101, 163 Sheehan, Reginald, 235n32, 240n1 Shetreet, Meir, 73 Shilling case, 197–198, 258n65 Shoval, Zalman, 58 Shue, Henry, 246n78 Simpson v. Attorney General, 112–113 Singapore, 83, 204 Singh v. Minister of Employment and Immigration, 114–115 Skapinker case. See Law Society of Upper Canada v. Skapinker Slaughter, Anne-Marie, 48, 226n10, 232n51 Slovakia, 8 Smith, Adam, 32

284

Index

Smith, Rogers, 240n1 Social and economic rights, 102, 105–108, 125–139, 150–151, 247n82; Israel, 29, 50, 62–63, 136–139; South Africa, 29, 128, 130–134; New Zealand, 88, 134– 136; Canada, 127–130 Social contract–based thesis of constitutional transformation, 31, 33 Social justice, 3 Society for Law Victims v. Minister of Justice, 110 Sólyon, Làszló, 205 Soobramoney v. Minister of Health, 131 South Africa: constitution, 9–10, 27–30, 90–94; apartheid, 27–28, 89–92, 94–95, 130–131, 162, 198–199, 239n81, 240n98; transition to democracy, 28–30; international human rights covenants, 29; labor, 29, 94, 96–97, 143–144, 165; education, 29, 94, 132; language, 29, 94; wealth distribution, 55–56, 94–95, 158; bill of rights movement, 92–94; constitutional court, 93–94; property rights, 94– 95; ethnic and racial cleavages, 94–95; land distribution/reforms, 94–95, 130, 131, 162, 184, 198–199; economy, 95– 97; judicial empowerment, 98; high courts, 103–104; wealth distribution, 158, 198–199, 219; housing, 161; judicialization of politics, 183–186, 191– 193; Truth and Reconciliation Commission (TRC), 191–192. See also African National Congress; South African Constitutional Court South Africa Amendment Act 1958, 90 South African Communist Party, 97 South African Constitutional Court, 28–30, 48, 93, 183–185, 200; caseload, 29–30, 103–108; appeal process, 184; certification process, 184–186, 189; ethnic and racial makeup, 239n85. See also Due process rights; Equality rights; Freedom of expression; Labor rights; Property rights; Social and economic rights South African National Defence Union (SANDU) v. Minister of Defence, 143

South Pacific Forum, 83 Spain, 8, 41–42, 191, 215 Sparrow case. See R. v. Sparrow Standing, 200; Canada, 21; Israel, 24, 201; United States, 200 Stevenson, William, 117 Stinchcombe case. See R. v. Stinchcombe Stone Sweet, Alec, 226n8, 226n10, 226n11, 229n16 Sunstein, Cass, 64, 247n84 Supreme Court of Canada (SCC), 18–21, 38, 103–104; interpretative approaches to Charter, 18, 21, 80; caseload, 19–20, 81, 103–108; formal judicial review provisions in constitution, 19; appeal process, 20, 103; standing, 21; judicial empowerment, 78–82; federalism, 79–81; appointment process, 80; ideological orientation, 80–81; public opinion, 82; use of international law, 182. See also Due process rights; Equality rights; Freedom of expression; Judicial Committee of the Privy Council; Labor rights; Property rights; Social and economic rights Supreme Court of Israel (SCI), 22–24, 103– 104, 175, 177; relationship with Knesset, 21–22, 35; interpretative approach to Basic Laws, 22–23, 65–68; caseload, 23, 103–108; appeal process, 23–24, 103; standing, 24, 201; representation concerns, 50–51; judicial empowerment, 60, 64–65, 65–74; ideological orientation, 65–70, 173; socioeconomic makeup, 66– 67; appointment process, 66–67; public opinion, 68–74; critics, 70–73; constitutional court movement, 72–73; jurisdiction, 200; implementation issues, 206– 208. See also Due process rights; Equality rights; Freedom of expression; Labor rights; Property rights; Social and economic rights S v. Makwanyane, 48, 113 S v. Motloutsi, 114 S v. Vermaas, 114 S v. Williams, 113 S v. Zuma, 113

Index Sweden, 8, 36, 220 Systemic need–based thesis of constitutional transformation. See Functionalist thesis Taiaroa v. Minister of Justice, 193–194 Tajikistan, 204 Tami party (Israel), 59 Tanzania, 48 Tatarstan case, 205 Tate, Neal, 225n2 Tehiya party (Israel), 59 Te-Kira. See R v. Te-Kira Tel-Aviv University, 63 Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc., 194 Texas v. Johnson, 118 Thailand, 45 Theories of constitutional transformation. See Constitutional transformation theories Third Way party (Israel), 59 Thomas, Robert, 34 Tirkel, Ya’akov, 235n27 Tocqueville, Alexis de, 1, 169, 225n1, 254n1 TRC. See South Africa, Truth and Reconciliation Commission Treaties, rationale, 44–45 Treaty of Waitangi, 27, 86, 89, 193–194, 256n50 Treaty of Waitangi Act (New Zealand), 86 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (New Zealand), 194 Trudeau, Pierre Elliot, 75, 76, 78, 79, 237n52 Turkey, 42, 209, 223 Tushnet, Mark, 225n4, 240n1, 252n16 Tzomet party (Israel), 59 U.F.C.W., Local 1518 v. KMart Canada Ltd., 142 UNDP. See United Nations Human Development Program

285

Union of Soviet Socialist Republics, 51, 55, 56, 57. See also Russia United Kingdom, 1, 2, 8, 21, 36, 53, 69, 83, 97, 150, 215, 223; Human Rights Act 1998, 36 United Mizrahi Bank v. Migdal Cooperative Village, 22–23, 139 United Nations, Universal Declaration of Human Rights, 126 United Nations Committee on Human Rights, 48, 245n77 United Nations Human Development Program, 126, 156–158, 246n79 United States, 31, 32, 42, 48, 53, 64, 69, 78, 83 87, 100–101, 153. See also United States Supreme Court United States Supreme Court (USSC), 20, 47, 61, 69, 73, 118, 149–151, 153, 163, 172; caseload, 19–20; appeal process, 20, 103, 200; ideological orientation, 100– 101; Bill of Rights interpretation, 101; due process rights, 118; freedom of expression, 118; representation, 163 Universal Declaration of Human Rights, 126 USSC. See United States Supreme Court U.S. v. Lopez, 101 Vermaas case. See S v. Vermaas Verwoerd, Hendrick, 90 Victoria Charter 1971 (Canada), 76, 78– 79 Vriend v. Alberta, 122, 124–125 Waitangi Tribunal, 86, 193 Waldron, Jeremy, 225n4, 246n78, 252n16 Wealth distribution, 156–168; Israel, 55– 56, 94–95, 156, 219; Canada, 156–157, 219; New Zealand, 157–158, 219; South Africa, 158, 198–199, 219; women, 158– 159; United States, 220. See also Aboriginal Canadians; Arab-Israelis/Arabs in Israel; Maoris Weber, Max, 230n18 Weiler, Joseph, 226n10 Weingast, Barry, 37, 230n17

286

Index

Weitzman, Ezer, 59–60 Weitzman, Haim, 59–60 Western Cape, Province of the v. Minister of Provincial Affairs, 183 Westminster system of government. See Parliamentary sovereignty West Virginia State Board of Education v. Barnette, 31 Whittington, Keith, 258n71 Wik Peoples, The, v. Queensland, 203 Williams, Patricia, 149–150, 251n1, 251n4 Williams case. See S v. Williams Women, 116, 117; Israel, 67; wealth distribution, 158–159; Women of the Wall affair (Israel), 176; aboriginal Canadians, 197–198; India, 202–203

Workers’ rights. See Labor rights World Bank, 46 World Trade Organization (WTO), 46, 216, 221 WTO. See World Trade Organization Yacoob, Zak, 133 Yahad party (Israel), 59 Yeltsin, Boris, 205 Yosef, Ovadia, 71 Zander, Michael, 125 Zimbabwe, 48 Zisser, Baruch, 233n10 Zorkin, Valerii, 205 Zuma case. See S v. Zuma Zundel case. See R. v. Zundel