The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?
| Date | 01 June 1996 |
| DOI | 10.1177/092405199601400204 |
| Author | David Kretzmer |
| Published date | 01 June 1996 |
| Subject Matter | Article |
The New Basic Laws on Human Rights: A Mini-Revolution
in Israeli Constitutional Law?
David Kretzmer'
Abstract
In 1992 the Israeli Knesset enacted the Basic Law: Freedom
of
Occupation and the Basic
Law: Human Dignity and Freedom. These basic laws, as chapters in Israel's emerging
formal Constitution, have opened the way for judicial review
of
parliamentary legislation
that violates human rights. Opposition from some political quarters prevented inclusion
in the basic laws
of
some rights protected under modern constitutions and human rights
treaties. However, the rights protected include 'human dignity', a term that can be
broadened by judicial interpretation so as to include violations
of
rights not specifically
mentioned in the basic laws. The basic laws lay down a balancing test for deciding
whether restrictions on protected rights are legitimate. All restrictions must be prescribed
by a law that befits Israel as a Jewish and democraticState, that was enactedfor a worthy
purpose and that meets the proportionality test.
IBackground
Until the Basic Law: Freedom
of
Occupation and the Basic Law: Human Dignity and
Liberty were enacted in 1992, Israel had no bill
of
rights. Pursuant to the 1950 Harari
Resolution, according to which Israel's formal constitution would be drawn up in a
piecemeal fashion by a series
of
basic laws, basic laws were enacted covering virtually all
aspects
ofIsrael's
constitutional system. However, these basic laws did not include a basic
law on civil liberties or human rights.
The absence
of
a bill
of
rights was not for want
of
trying. Numerous attempts were
made over the years by members
of
the Knesset, the Knesset Constitution and Law
Committee and Ministers
of
Justice to further passage
of
a bill
of
rights. In recent years,
the most adamant opposition to a general bill
of
rights came from the religious parties,
who have a principled objection to judicial review. This objection rests on the not
unfounded conviction that a bill
of
rights would enable the Supreme Court to exercise
jUdicial review over legislation that was passed because
of
the strategic position
of
the
religious parties in Israel's coalition system, but that is inconsistent with fundamental
freedoms and rights, such as freedom
of
religion and equality. The main examples
of
such
legislation are the laws regarding religious marriage and Sabbath observance.
The two basic laws enacted in the last session
of
the outgoing Knesset before the 1992
elections grew out
of
the realisation that even it were impossible, for political reasons, to
enact a general bill
of
rights, it might be possible to enact a bill that deals with those
rights that are considered less controversial from a political point
of
view. Thus it was that
the first basic law on civil rights passed in Israel deals with a right that is not specifically
mentioned in many constitutions and human rights documents, namely what has been
called 'freedom
of
occupation', i.e., the freedom to follow the vocation
of
one's
choosing.
The second law deals with a whole range
of
rights under the general rubric
of
'human
dignity and liberty'.
Professor
of
Law and Director, Center for Human Rights, Hebrew University
of
Jerusalem.
Netherlands Quarterly
of
Human Rights, Vol.
1412,
173-183,
1996.
©The Netherlands Institute
of
Human Rights (81M). Printed in the Netherlands.
173
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