The Role of the Legislature in Determining Legitimate Responses to Security Threats: The Case of Israel
Israeli Constitutional Law in the Making (edited by Gideon Sapir, Daphne Barak-Erez and Aharon Barak, Hart Publishing, Oxford, UK, 2013)
23 Pages Posted: 13 Jun 2013
Date Written: June 11, 2012
Activism and minimalism are typically attributed to the scope of judicial involvement in determining the legitimacy of decisions taken by the political branches. But such evaluation may also address the role the legislature plays in delineating the measures the Executive Branch may (or should) take. The purpose of the current paper is to contribute to the study of this issue by presenting and critically evaluating the Israeli experience regarding the role of the legislature in responding to security threats, and in particular to terror attacks.
The descriptive part of the paper presents a story of evolution in the role of the Israeli parliament in this respect. The last decade has witnessed a growing involvement of the legislature in delineating what measures can legitimately be employed and in what circumstances. This change reflects only in small part the aim of restraining unjustified use of force. The more dominant aim is precisely the opposite – legitimizing the use of certain measures that were otherwise considered prohibited.
The chapter also inquires what role the Israeli legislature should play. Given the fact that in practice the Knesset legislates mostly to legitimize employing certain measures rather than to restrain the government, it may seem as if the requirement of ex ante legislative authorization is superfluous. Nevertheless, I suggest that enforcing this requirement is justified. I address three main arguments: first, the requirement of legislation is beneficial, at least in terms of its deliberative values; second, legislation is an essential tool for scrutinizing governmental activities; and third, the concerns of the symbolic adverse effects of authorizing human rights infringements in legislation are unfounded.
Keywords: Israel, Constitutional Law, Human Rights, Fight on Terror, Anti-terror Warfare, Legislation
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