Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written or unwritten, as well as certain statutes and treaties, have been granted constitutional force.[3] Through its emphasis on legal and political tradition, the UK has historically attempted to protect human rights and civil liberties without infringing on the sovereignty of Parliament.[4]

Another country without a written constitution is Israel. The constitutional order in Israel consists of unwritten principles, case law, the Declaration of Independence, and a number of limited Basic Laws. The 1990s saw a “Constitutional Revolution” in Israel,[5] motivated by the belief that human rights should not be left in the hands of any legislator, with the knesset adopting the Basic Laws on Human Dignity and Liberty and Freedom of Occupation that protected basic human rights and gave courts broad powers of judicial review in order to uphold them. Nevertheless, due to internal social and religious tensions, the government has continued to postpone the adoption of a formal written constitution, despite undertaking to do so since the establishment of the state.

Given the fact that constitutional principles are not as well-defined or -entrenched in Israel as they are in Canada, or even in the UK, it is interesting to take note of last week’s High Court of Israel ruling which found that privately-run prisons are unconstitutional.[6] The decision is notable for a number of reasons, chief among them that it establishes an international precedent. Private prisons are common in many countries, most notably the UK (where they have existed since the 1990s) and the US (where privatization of prisons can be traced back to the 1850s).[7] They are also prominent in France, Australia, and New Zealand, and successful constitutional challenges have not been mounted in any of these countries despite ongoing public debate. How is it that private prisons have been ruled unconstitutional in Israel, but not in the US, with its similar though better-defined base of liberal values and where the tradition of constitutional litigation is thought to be much stronger?

The Court’s decision[8] cited the political philosophies of Locke and Hobbes, as well as the constitutional principles laid out by former Chief Justice Barak. It addressed the relationship between the state and the individual, maintaining that the right to enforce criminal law through incarceration is one of the most invasive of the state’s responsibilities in exercising a monopoly on the use of force, and that the state may not delegate such fundamental tasks to private enterprise. Most importantly, using a variation of the Oakes test, it asserted that economic efficiency cannot override basic principles of human rights; depriving a person of liberty is a violation of his fundamental rights to liberty and dignity, and may only be done for the public good – not to make a profit.[9] Profiting from the exercise of the state’s authority undermines the legitimacy of this authority.

Other considerations that have been raised in public debate are concerns that a for-profit penal system may result in lobbying legislators and judges to make it easier to incarcerate individuals than the public interest would warrant;[10] in one US case, two judges were found guilty of accepting $2.6 million from a private prison company to send children to their jails.[11] Other arguments have been advanced challenging the economic efficiency and the overall effectiveness of privately-run prisons. It has also been suggested that the preponderance of private prisons in the US is a contributing factor to the US having the world’s highest rate of incarceration.[12]

Clearly, the High Court’s decision will have far-reaching implications, and may result in similar constitutional challenges elsewhere based on similar principles. That a constitutional precedent of this magnitude has been set in Israel, a country without a written constitution or a strong tradition of constitutional litigation, may cause some to rethink their conceptions of constitutionality. Clearly, a constitution is about more than having a fixed written document. In fact, it is difficult to imagine any constitution that is limited to written documents, as, in the case of Canada, is alluded to by the word “includes” in s. 52(2) of the Constitution Act, 1982. Constitutional force can be assigned to principles deriving from any source, as the High Court demonstrated in citing Locke in tandem with Barak, as well as to various means by which to interpret them. A formal written constitution is merely a tool for expressing society’s most entrenched norms; as the Israeli example illustrates, the absence of a written constitution does not necessarily suggest a normative void. As countries in the developing world strive for constitutional reform (whether it emulates the Canadian model or not), we would do well to remember that a written constitution is a means, not an end in itself.

[1] Peter Hogg, Canadian constitutional scholar, quoted at http://www.cbc.ca/news/features/constitution/

[2] Roy McMurtry, former justice minister of Ontario, quoted at http://www.thestar.com/article/215547

[3] See, for an early example, Entick v. Carrington, http://www.constitution.org/trials/entick/entick_v_carrington.htm

[4] Though in recent years we have in fact seen a trend away from parliamentary supremacy and a recognition that there may be situations in which the judiciary may override the express view of the legislator; see for example Baroness Hale’s obiter in Jackson v. Attorney General, http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack-1.htm

[5] In the words of Aharon Barak, Chief Justice of the High Court at the time.

[6] http://www.haaretz.com/hasen/spages/1129539.html

[7] http://en.wikipedia.org/wiki/Private_prisons

[8] as reported in the Israeli media; I have yet to see the actual text

[9] http://www.haaretz.com/hasen/spages/1129516.html

[10] http://www.guardian.co.uk/commentisfree/2009/mar/03/prison-population-titan-jails

[11] http://www.nytimes.com/2009/03/28/us/28judges.html?_r=2

[12] Supra, note 10.

Daniel Haboucha Daniel Haboucha is a fourth-year law student at McGill, with interests in international humanitarian and human rights law. A native Montrealer, Daniel completed his undergraduate degree in McGill’s integrated Arts and Science program while serving as a reserve infantry soldier in the Canadian Forces.

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