There are many indications to the fact that the current government’s legal initiative is not merely an innocent reform program designed to rectify various defects that without question exist in Israel’s current legal system but a much broader plan to change many aspects of our existing regime, which if fully implemented will do away with numerous features of the liberal democracy that currently still prevails here.
Whether this will kill Israeli democracy altogether, as many of the opponents of the government’s policy moves believe, is the $64,000 question. What will finally transpire will depend on how Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin and Constitution, Law and Justice Committee chairperson Simcha Rothman perceive the final outcome of what they and numerous other ministers and MKs from the Coalition are placing or planning to place in the foreseeable future on the Knesset’s legislative agenda and the degree of their success in actually getting this agenda through the Knesset.
The fate of Basic Law: Human Dignity and Liberty, which is not on the immediate agenda, is an example of what I am talking about, but before I move on the discussing this issue, I should like to say a few words about the legislation that has already been laid on the Knesset table and is designated for a fast-track legislative procedure. As well, I would like to talk about the government’s claim that if the opposition wishes to present its reservations to the various bills being deliberated, it should come to the Constitution, Law and Justice Committee and express its reservations there.
Is Basic Law: Human Dignity and Liberty in danger?
The opposition replies that this would be fair enough if it weren’t for the fact that Levin has made it absolutely clear that he is not interested in introducing anything but cosmetic changes in his proposals and that though Rothman lets anyone wishing to speak in his committee and say whatever he wishes to say, the draft legislation he presented on behalf of the committee as an alternative to part of Levin’s proposals is more extreme than the original, indicating that the only changes he is interested in introducing are in the opposite direction to what the opposition seeks.
In other words, neither Levin nor Rothman are interested in reaching real compromises with the opposition except in a semblance of an open debate that is not intended to lead to any change. It is for this reason that the opposition as such has not bothered to present serious suggestions for amendments to the draft bills brought to the Constitution, Law and Justice Committee on the various elements of the reform.
The government knows it has a solid majority of 64 MKs to get its legislation through as is and is apparently not interested in reaching at least some measure of national consensus that will prevent the bitter disagreement over its plans to bring about a change in Israel’s legal system from deepening the tear in the society and the danger of its turning into civil strife.
The history of Israel's Basic Law: Human Dignity and Liberty
But back to Basic Law: Human Dignity and Liberty. This Basic Law was approved by the Knesset on March 17, 1992, by a majority of 32 in favor, 21 against and one abstention. The main reason for the small number of MKs in the chamber during the vote (less than half the total number of MKs) was that the Labor Party was about to hold its first primaries toward the elections to the 13the Knesset and many of the Labor MKs were absent from the Knesset after pairing off with MKs from the Likud.
This Basic Law was one of two basic laws that dealt with human rights (the other being Basic Law: Freedom of Occupation), which had been laid on the Knesset table by MK Amnon Rubinstein from the opposition Shinui party. These were the first laws that dealt with human rights ever passed by the Knesset.
PREVIOUSLY, SEVERAL bills on the subject were presented but none of them ever got beyond first reading, primarily due to fierce opposition by ultra-Orthodox parties that refused to accept any law on human rights that clashes with Halacha (Jewish religious law).
It is constantly stated that the laws passed in 1992 were initiated by former Supreme Court president Aharon Barak, as part of his alleged plan to perform a constitutional revolution that would enable the High Court of Justice (HCJ) to cancel ordinary laws (or parts of them) that clash with basic laws. In fact, it was MK Dan Meridor (a member of the Likud at the time), who as justice minister in Yitzhak Shamir’s two governments in the 12th Knesset (1988-1992) had initiated a basic law on human rights.
However, after the fall of the unity government in March 1990 and the formation of a narrow government without the Labor party three months later, Meridor was unable to continue to advance his law, due to the coalition agreement between the Likud and the ultra-religious parties. Rubinstein took Meridor’s bill and divided it into four separate bills dealing with Human Dignity and Liberty, Freedom of Occupation, Freedom of Expression and Freedom of Association.
In cooperation with the chairperson of the Constitution, Law and Justice Committee, Uriel Lynn from the Likud, Rubinstein got the four bills through their preliminary readings as private members’ bills but then decided to continue to promote only two of them, in order to ensure that at least part of the legislation would actually get through.
The opponents of the two bills conceded their defeat but ever since, right-wing academics in the sphere of law have argued that the law was passed fraudulently. A fascinating detailed description of the legislative process of the two laws that appears in a book that Lynn published in 2017, The Birth of a Revolution (Hebrew), proves that this accusation is false, though Lynn admitted that the process involved carefully designed tactics to get over various hurdles.
MK Yariv Levin, first elected to the Knesset in 2009, was one of those who has continually argued that the law as it exists today ought to be amended or replaced. Today, he plans to include in Basic Law: Legislation – a basic law that has not been legislated to the present, primarily because of ultra-Orthodox objections – a clause that will state that basic laws can only be passed or amended by an absolute majority of the MKs. Since this is not what happened with Basic Law: Human Dignity and Liberty, the idea is to downgrade it to an ordinary law until such time as a totally new basic law on human rights will be enacted.
In theory, this sounds fair enough but given Levin’s ideological positions and those of the various religious parties that together constitute half the current coalition, it is unlikely that if such a law will finally be enacted, it will measure up to the basic human rights legislation in Western democracies.
To the present, it has been exclusively the HCJ that has served as the watchdog of human rights in Israel, on the basis of the incomplete existing legislation and abstract legal principles. To the notice of all those who argue that Israel’s democracy is not under threat, if Israel’s human rights legislation and the HCJ will both be weakened, how will human rights be protected in Israel?
The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, is published by Routledge.