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Israel: A basic law onfundamental human rightsis under considerationNatan Lerner aa Professor in the Faculty of Law , Tel AvivUniversityPublished online: 28 May 2010.

To cite this article: Natan Lerner (1989) Israel: A basic law on fundamentalhuman rights is under consideration, Patterns of Prejudice, 23:2, 35-37, DOI:10.1080/0031322X.1989.9970006

To link to this article: http://dx.doi.org/10.1080/0031322X.1989.9970006

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Legal Developments

ISRAEL

A basic law on fundamental human rights is underconsiderationIsrael has no written constitution. Despite the campaign now being con-ducted on the basis of a draft prepared by a group of professors of the TelAviv Law Faculty, the prospects for its fast adoption, in its present or in achanged form, are, to put it mildly, rather weak.

Israel has also not ratified the Human Rights Covenants. Protection ofhuman rights and fundamental freedoms has therefore been mainly the taskof the judiciary. The Supreme Court has held that those human rights whichare recognized as international customary law, such as most liberties listed inthe Universal Declaration of Human Rights, also form part of the Israelilegal system, provided that they do not conflict with Knesset legislation. TheCourt has also seen the Declaration of Independence of the state of Israel —which is not a binding instrument — as a guide for the interpretation of itslegal system.

In 1964, Professor H. Klinghoffer MK submitted a draft bill on basicrights, on which the Knesset worked without coming to any conclusion. In1982, a similar proposal was presented by Professor A. Rubinstein MK, withthe same outcome.

Now, at the initiative of Mr Dan Meridor, the Minister of Justice, thegovernment has approved and decided to submit to the Knesset a draft BasicLaw: Fundamental Human Rights. The bill enjoys the support of the twomajor parties and has, in general, been welcomed by specialists and the pressas a basis for discussion, although attention has been drawn to serious defectsand shortcomings.

The draft is a short document of twenty-four articles, the most impor-tant and meaningful of which are the very first and last ones. Article 1 statesthat the fundamental rights of man in Israel are based on the recognition ofthe value of man, the sanctity of his life and his being a free person, and willbe respected in the spirit of the principles of the Declaration of the Establish-ment of the State of Israel.

If the bill is approved, the legal value of the Declaration of Indepen-dence will now be grounded in law. Its principles will be a legal guide to theinterpretation of the human rights recognized in the law.

To provide adequate protection for such rights, Article 24 enlarges thecompetence of the Supreme Court. The Court will have power to act as a

PATTERNS OF PREJUDICE, vol. 23, no. 2, 1989

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36 ISRAEL: a basic law on human rights

Constitutional Court, consisting of seven or more of its members. Every per-son, provided he or she is directly affected, will have the right to ask the Con-stitutional Court to declare invalid any legal provision which contradicts theBasic Law: Fundamental Human Rights. If in the course of a judicial pro-ceeding doubts arise as to whether a legal provision is consistent with theBasic Law: Fundamental Human Rights, the matter will be submitted to theConstitutional Court.

The importance of the establishment of such a Court cannot beoverestimated, particularly in view of Israel's present constitutional situa-tion. However, the new draft law does not go far enough in this respect. Ac-cording to Article 22 of the draft, the new Basic Law would not affect thevalidity of previous legislation, although such legislation would be inter-preted in the spirit of the new law. By article 20(a), the legislation in mattersof marriage and divorce would also not be affected by the new law. By Arti-cle 21, emergency regulations affecting many human rights would still belegal after the adoption of the Basic Law, provided the restrictions were tem-porary and not excessive.

Articles 2 to 17 list the fundamental rights protected. They include:Equality before the law and prohibition of discrimination on grounds of

religion, nationality (leum in Hebrew, an ambiguous term, also translated aspeoplehood), race, community, country of origin, or any other reason, pro-vided 'the ground is irrelevant' (Art. 2);

Physical integrity and human dignity (Art. 3);Personal liberty (Art. 4);Freedom of movement (Art. 5);Freedom of religion and worship (Art. 6);Freedom of expression (Art. 7);Freedom of creativity and scientific research (Art. 8);Privacy (Art. 9);Legal capacity (Art. 10);Property rights (Art. 11);Freedom of work and occupation (Art. 12);Freedom of assembly (Art. 13);Freedom of association (Art. 14);Right to a legal remedy (Art. 15);Presumption of innocence (Art. 16);Prohibition of retroactive penal legislation (Art.17).It should be noted that there is no mention of freedom of conscience.

The right not to belong to any religion is not spelled out. The death penaltyis not forbidden. There is no specific prohibition of torture, although Article3 may be interpreted as covering it. If one keeps in mind the restrictionsalready mentioned in Articles 20, 21 and 22, the range of issues to which theBasic Law would apply is certainly not exhaustive.

According to Article 18, all organs of the state have to respect basichuman rights. These rights can only be restricted by laws appropriate for,and to a degree consistent with, a democratic state (Article 19). The BasicLaw: Fundamental Human Rights can only be amended by a majority oftwo-thirds of the members of the Knesset.

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Legal Developments 37

It should be mentioned that Article 20(b) authorizes restrictions on therights of persons who serve in the army, police, prisons and other securityservices, provided such restrictions are established by law, on grounds oforganization, order and discipline. Article 20(c) prohibits the use of humanrights to attack the existence of the state, its democratic structure, or to limithuman rights.

As indicated, the press and legal commentators have expressedthemselves in favour of the draft, albeit with numerous reservations.Ha 'aretz pointed out that the draft 'deserves to be a basis' for parliamentarydiscussion but needs many amendments. The Jerusalem Post said that theproposal 'has many defects' but could be 'a milestone on Israel's road tobecoming a truly human rights-observing society'. It considers, for instance,indefensible the exclusion of marriage and divorce legislation from the rangeof a Basic Law. Some critics have been even more negative, warning againstthe proposed exemption of all existing legislation from the ambit of thehuman rights law. There seems to be general agreement, however, on thevaluable contribution which the establishment of a constitutional courtwould make to the human rights scene in Israel.

NATAN LERNER

USA

Supreme Court invalidates practice of reserving governmentcontracts for minoritiesThe Supreme Court has never been of one mind about race-consciousremedies such as minority contractor 'set-asides'. These programmes, underwhich a percentage of government contracts are reserved for minorities orwomen, are plainly a direct and efficient way of narrowing the lingering gapbetween blacks and whites, the legacy, in large part, of slavery anddiscrimination. For minorities, they are also a visible and tangiblemanifestation of society's determination and commitment to make actualthe promise of equal opportunity.

At the same time, these set-aside programmes are plainly at odds withthe very principle whose acceptance put an end to de jure discrimination —that every individual is entitled to be judged by government and others whowield power, not by virture of accidents of birth such as skin colour, but bymerit, achievement, individual ability and potential. It is not surprising thatthe court's judgments concerning race-conscious remedies over the yearshave varied from emphasizing one or the other of these considerations, asdifferent justices wrestle with these conflicting claims.

The court's latest venture into this field was in City of Richmond v.J. A. Croson, Inc.l The City of Richmond, Virginia (the capital of the Con-federacy during the Civil War),2 initiated a minority business enterprise set-aside programme. Under that three-year-long programme, any prime con-tractor doing business with the city was required to subcontract 30 per centof the value of the contract to minority companies. Minorities, who com-posed about half of the population of Richmond at the time, were doing less

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