The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law

תקציר

Until the recent passage of the two basic laws on civil rights, the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Freedom, Israel had no bill of rights. Pursuant to the 1951 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 of Israel'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 the Minister 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 will 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 anathema to the secular majority in the country. 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 grew out of the realization 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 less controversial from the 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 other 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 freedom".