I have been asked to speak to you about judging in the age of the Canadian Charter of Rights and Freedoms, with particular reference to remedies under the Charter. You will understand, I am sure, that my treatment of the subject will necessarily be in the nature of an overview.

Stated broadly, I will be suggesting to you that the introduction of the Charter in Canada has required a fundamental reappraisal of how judges approach their tasks, of the processes that are employed and of the relationship between the judicial and legislative branches of government.

Before developing these two propositions, however, I should first give you some basic information about our Charter; to those for whom this is very familiar ground, I apologize and promise brevity.

The Canadian Charter of Rights and Freedoms, which was adopted by Canada in 1982, has one main animating principle from which flows one corollary. The animating principle is that certain human rights and freedoms should be part of the fundamental law of the land. The corollary is that when there is a dispute about the application or the meaning of these fundamental rights and freedoms, it is the responsibility of the courts in Canada to define and apply them through the legal process.

The legal problems relating to the Holy Places in Jerusalem are of a very complex and delicate nature. The issue has a long history, and its complexity is the result of turbulent religious, ethnic, national and international conflicts over the Holy Places. The problems were not created by the State of Israel, but the establishment of the Jewish State added new dimensions to the age-old contest. I shall first describe briefly the ideological background of the problem, then analyze its legal aspects and finally illustrate its complexity by a number of Israel court decisions.

On 13 September 1993 Israel and the Palestine Liberation Organization (hereinafter “PLO”) signed on the lawn of the White House in Washington, in the presence of United States President William J. Clinton, a “Declaration of Principles on Interim Self-Government Arrangements” (hereinafter “the DOP”), the text of which had been initialled the previous month in the Norwegian capital Oslo, following several months of secret negotiations. This occurred almost exactly fifteen years after the signing at the White House, on 17 September 1979, by the President of Egypt, Muhammad Anwar Al-Sadat, and the Prime Minister of Israel, Menachem Begin, of the “Framework for Peace in the Middle East” that had been negotiated and agreed at Camp David, Maryland (hereinafter “the Framework”).

Both the Framework and the DOP aim at resolving one of the most complex conflicts of our time, namely, the dispute that first developed between the Arab and Jewish communities in Mandatory Palestine and which widened, with the establishment of Israel in 1948, into a conflict between Israel and the entire Arab world. While both agreements provide for interim arrangements (and the DOP even stresses this aspect in its title), pending the negotiations for a definitive solution, and while both even use similar terms, the basic concepts underlying each of these agreements widely diverge.

Seen in the context of the Middle East peace process, the security aspects of the Israel/PLO Agreements constitute a small, but important step within this process. Formally, the security arrangements in the bilateral agreements have to be distinguished from the issue of security in terms of strategic needs and arms control dealt with in the multilateral negotiations. However, bilateral security arrangements will in the long run, influence and be influenced by the content of the multilateral negotiations in the field of security. It appears to have become customary in Middle East peace negotiations, that only once an agreement has been reached on a larger issue, do teams of experts deal with the details of security arrangements. This was the case in the negotiations of the Peace Treaty between Israel and Egypt, and of the Israel/PLO Agreements. The approach adopted by Israel in relation to Syria concerning the Golan Heights, is also similar in character.

In 1961 the government of Israel brought criminal charges in Jerusalem against Adolf Eichmann, a former Obersturmbannfuher (Lt. Col.) in the S.S. Eichmann's name had frequently come up at the Nuremberg trials, as he had overseen the substantial task of transporting European Jews to Nazi concentration and death camps during the war. However, he was never tried at Nuremberg because he had evaded capture by allied armies and begun a new life in Argentina. In 1961 the Mossad, the Israeli intelligence agency, kidnapped Eichmann and brought him to Israel to stand trial. Given Eichmann's notoriety, and the rather unusual way in which Israel obtained in personam jurisdiction over him, it was not surprising that the trial received world-wide attention.

In Jerusalem Eichmann was charged with violations of the Nazi and Nazi Collaborators (Punishment) Law of 1950.

A logical starting point for any discussion about dividends is the Irrelevance Theorem developed by Modigliani & Miller. According to this theorem, dividend policy does not affect the firm's value if its investment policy is predetermined. In practice, however, the market does not behave in this manner. Firms do distribute dividends, and increases in dividends usually lead to increases in share prices. Given the inferior tax treatment of cash dividends as opposed to capital gains and the high costs involved in raising new funds in the market, this suggests, contrary to the irrelevance theorem, that investors and managers do care about dividend policy. This phenomenon is known as the “Dividend Puzzle”.

The literature on dividend policy revolves around this “puzzle”. Why do managers distribute dividends at all? Why do investors care about dividends? Various explanations have been offered suggesting some benefits to compensate for the extra costs associated with dividend distribution: information or signaling effects (managers use dividends to credibly signal their forecast of the firm's future performance through changes in the level of distribution); reduction of agency costs (by both driving the firm into the capital market and diminishing the internal cash flow available to management).

Some fifteen years ago, an address on the subject of judicial review of the actions of the Knesset would have been extremely short and quite familiar to English jurists. Our practice was basically the same as in England: the Parliament is sovereign, its laws inviolate, and its inner proceedings immune from review.

Beginning with two decisions in the early 1980s, Flato-Sharon and Sarid, the Court has gradually recognized the justiciability of a limited range of Knesset decisions. While the precise level of review varies according to the type of decision at issue, the Court's review has been motivated in all cases by the need to preserve the rule of law and the integrity of our democratic regime.

In each one of the three main agreements which Israel has concluded to date with the PLO as part of the current peace process, the issue of foreign relations has received special treatment. This reflects the fact that, while the transfer of a number of spheres of authority to the Palestinian autonomous entity has serious practical ramifications, the treatment of the sphere of foreign relations has an added effect on the very nature of the autonomous entity itself, because full capacity to conduct foreign relations is one of the accepted indicia of sovereignty and statehood. Any arrangements reached with regard to the sphere of foreign relations are, therefore, of critical significance.

Special Considerations in Striking the Balance Between the Right to Leave and the Interest of State Security

Section 6(a) of Basic Law: Human Dignity and Freedom lays down explicitly that “every person is free to depart from Israel”. By enacting this provision the Knesset followed a long line of cases decided by the Supreme Court of Israel which held that the right to leave Israel is a recognized important right and a basic principle of the Israeli legal system.

Article 6(a) confers the right to leave upon every person both Israeli citizens and foreigners alike. This principle conforms to the norms of various important international human rights instruments that confer the individual's universal right to leave upon a country.

The constitutional protection of this right means that the right cannot be restricted except as provided by law which was intended for a fitting purpose and only to the extent necessary.

An increasingly common practice in Israel and other countries is the imposition of restrictions and burdens on land developers, without utilizing formal planning or expropriation processes. A land owner, for instance, may agree to dedicate part of his land for public use and to transfer its title to the planning authority, with no compensation and without expropriation procedures. Similarly, the parties can agree on height or bulk restrictions for buildings to be constructed on the land, beyond those imposed by the plans applicable to the area. The burdens might take the form of a contract between the planning authority and the developer, or may be included in the building or subdivision permits. In many cases, the authority attempts to use these tools to obtain benefits that it could not have acquired through its statutory powers. This article examines the legality of this practice and the restrictions which should be imposed on it. As regards the transfer of rights in land without compensation, the question arises whether such agreements or permits should be subjected to the same restrictions that apply to injuries caused by plans and expropriations. For instance, should one invalidate an agreement in which a developer purports to transfer land without compensation in quantities beyond that permitted by statutes authorizing expropriation without compensation? Does the fact that the land was transferred with the owner's consent (and not through the coercive power of expropriation statutes) restrict judicial intervention to contract law grounds, such as duress, misrepresentation or mistake?

The Israeli-Palestinian Declaration of Principles of September 13, 1993 (the “DOP”), which establishes the framework for the settlement of the conflict between the parties, sets the stage for a gradual transition towards a peace settlement, or the “permanent status” as referred to in the DOP. The interim arrangements outlined in the DOP provide for a step-by-step assumption of responsibilities by Palestinians in the West Bank and the Gaza Strip. The Agreement on the Gaza Strip and the Jericho Area, signed in Cairo on May 4, 1994, prescribes at length the arrangements for the first steps to be taken towards that goal. During the period of the interim arrangements, the Gaza Strip (excluding Israeli settlements and military installations) and the “Jericho Area” are to be administered by a “Palestinian Authority” (PA), a body established under the Cairo Agreement, which is distinct from the PLO.

The Cairo Agreement on the Gaza Strip and the Jericho Area, signed on May 4, 1994, seeks to implement the Declaration of Principles on Interim Self Government Arrangements signed in Washington on September 13, 1993 and, in particular, to put into effect its Protocol on Withdrawal of Israeli Forces from Gaza and the Jericho Area. The primary purpose of the Agreement is then to transfer territory from Israel to the Palestinian Authority. Article V of the Agreement defines this territory as covering the Gaza Strip and Jericho, excluding the Settlements and the Israeli military installation area. The transfer of territory is naturally accompanied by a transfer of legal and political control from the Military Government to the Palestinian Authority. But the Agreement does not simply assign to the Palestinian Authority all legislative, executive and judicial functions within the territory transferred to its control.

I. The Fundamental Agreement between the Holy See and the State of Israel

On December 30, 1993, the Fundamental Agreement between the Holy See and the State of Israel was signed in Jerusalem by representatives of both parties. The agreement, which precedes the first diplomatic relations entered into between the Holy See and the State of Israel, covers areas of international relations which include both general issues such as human rights and freedom of religion and particular issues regarding Vatican-Israel relations, such as the status of the Catholic Church in Israel and the role of the Holy See in territorial disputes in the region. The goals and meanings of many of the provisions of the Agreement have as yet to be further defined however, and several of them will be discussed following a brief survey of the historical events leading to the conclusion of this agreement.

Since Israel's independence, the Supreme Court has been very active in establishing and securing an impressive edifice of human rights. Lacking a written constitution, the Court has based its constitutional jurisprudence on the democratic character of the state. It has developed an “Israeli made” bill of rights, relying on comparative studies, yet with little reference to the standards set in international human rights instruments.

Two legal events of the last three years may change the judicial attitude towards international human rights. The first major event was the Israeli government's ratification of important human rights conventions during 1991, first and foremost among them the 1966 Covenant on Civil and Political Rights, which has been named the “International Bill of Rights” (hereinafter: the 1966 Covenant).

The economic provisions of the agreement between Israel and the PLO are set out in the Protocol on Economic Relations, signed in Paris on April 29th 1994. Concluding nearly six months of negotiations, the Protocol spells out the arrangements regulating economic relations between the Palestinian Authority, established under the Oslo Declaration of Principles (DOP), and Israel. Its eleven articles deal with the foreign trade, monetary and fiscal regimes of the areas under this jurisdiction, and with the movement of labour and goods between them and Israel. The Protocol also treats some more specific matters, such as the licensing of tour operators, access to tourist sites and compulsory motor vehicle insurance.