Opinions

5 constitutional defects in Arden's bill

In addition to the worst results expected from the new law of Minister Gilad Erdan, whom he maliciously calls "Decriminalization," the bill fell into several basic constitutional flaws, including those that the attorney general noted this week and which the minister chose to ignore. Adv. Dekel Ozer of the "Green Leaf", an expert in legislation and constitutional law, explains.

According to the current bill proposed by the minister Gilad Erdan, And if important sections are not amended, as we have demanded, the harassment of cannabis consumers in Israel is expected to increase, with tens of millions of shekels in fines.

In the State of Israel, as we know, there is no "constitution", but there is, in fact, a constitution in the form of basic laws that are superior to ordinary laws. In the case of contradiction, the Basic Laws prevail over ordinary laws. There are also basic principles of equality before the law, the right to a fair trial and the right to access to the courts - which are supreme principles and it is doubtful whether they can be annulled even under Basic Laws.

Minister Erdan chose to minimize his demand for Decriminalization as a result of pressure from the public, and he and his advisors created a highly crooked bill with constitutional flaws in abundance.

1. The use and possession of cannabis will continue to be a serious offense punishable by three years' imprisonment. This fact, in itself, is a constitutional flaw. Self use is the realization of a person's self-ownership over his body. Let's take an example of a person who drinks bleach to commit suicide. Suicide is not a criminal offense. So if self-harm in an attempt to actually die is not a crime - how exactly would a much lesser (presumably) self-harm be a criminal offense?

This fact is reinforced by the fact that the extent of damage from cannabis from regulated sources is very low and that there are no less harmful legal substances such as alcohol - which proves unreasonableness in legislation, cultural discrimination and the lack of a proper purpose for the law.

2. Past criminal records of self-use in cannabis will not be eliminated. As a result, people convicted of possessing cannabis and carrying a stain of criminal record for their own use will continue to bear the stain, even though those arrested today or in the future will be "exempted" from a criminal stain. If the status of self-use as an offense leading to imprisonment was canceled, the records would be automatically deleted.

This is a clear discrimination between citizens who have been caught in the past and citizens who will be caught in the future, and therefore also constitutes a constitutional flaw.

3. The proposal allows continued harassment, searches and entry into homes without a legal order, based solely on suspicion of personal use. The self-ownership of a person does not end with his body. There is a certain degree of independence and ownership of a person who grants immunity from harassment by the government to his clothes, tools, vehicles and home.

The Criminal Procedure Law and Order stipulate that searches and entry into homes can be carried out solely for offenses of a criminal nature, ie, offenses punishable by imprisonment of more than 3. Thus, the law does not allow search and entry into homes except for crimes - but for this purpose an exception was introduced - specifically the use of cannabis.

4. The conditions that must be met in order to "win" the possibility of admitting an offense and paying a fine instead of incriminating violate equality before the law. The proposal states that anyone who does not meet the strict conditions can not enter the arrangement of the fine alternative in general and for him nothing will change.

The principle of the existence of conditions does not violate equality before the law, but the conditions set by Erdan in this case become second class citizens of those who have previous criminal records for example if smokers were caught cannabis once before 3 years. This is actually a double sentence for an offense for which he has already been convicted and has already paid and paid the price.

The mistaken attempt to create a law only for "normative" people led in this case to legislation that violates both the principle of the prohibition of double punishment and the right to equality before the law.

5. The fines according to the proposal are in non-proportionate amounts and their application to those seeking to be tried is invalid. If the aforementioned defects are not enough, the law provides for astronomical fines of NIS 1000 and NIS 2000 for self-use, and 3 for those who dare to appeal to the court and be found guilty.

Can not those who are not afraid to smoke cannabis start to fear a fine? probably not. Was the NIS 100 fine not deterrent and insufficient? A fine of 250 a shekel? How is the 1000 set? Maybe that's not enough and why actually not 10,000? In this matter, Attorney General Avichai Mandelblit also determined that these were very heavy fines and that their dismissal before the court, while nullifying the judges' discretion, constituted a disproportionate violation of the right of access to the courts.

In conclusion, it can be clearly seen that Erdan's bill is a proposal full of constitutional flaws, violates fundamental principles of the legal system and democracy, and its application will disproportionately violate the rights and freedom of the individual.

The writer, Adv. Dekel Ozer, is the strategic director of the Green Leaf Party - the Liberal Party.


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Cannabis fines

(Starting with 1 in April 2019)

Based on a figure revealed by Minister Erdan. Police refuse to reveal official figureDetails here)

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