Last week, the chairman of the Constitution, Law and Justice Committee, MK Gilad Karib, A special discussion to mark the 30th anniversary of the passage of the Basic Laws: Human Dignity and Liberty and Freedom of Occupation. These two laws together define the basic rights of the individual in Israel, and are part of a chain of basic laws that have been enacted since the establishment of the state.
The first speaker was Judge Prof. Elyakim Rubinstein, Retired Vice President of the Supreme Court. Prof. Rubinstein opened his remarks by stating that the constitutional revolution in Israel was not created by the retired Supreme Court President Prof. Aharon Barak, but by the Knesset itself, and he was indeed absolutely right. These two Basic Laws are not meant to be a manifesto of noble declarations that does not bind an institution or person, but rather real laws that impose duties and produce rights.
I attended the discussion and noted that every new law is like a tree; It can take root, send branches and continue to grow and grow or just wither and forget. Indeed, the Basic Law: Human Dignity and Liberty has taken root in all legal culture in Israel, both in the education system and in all government institutions, including the Knesset of Israel.
He is today a guide for every legislator and every jurist. A simple and fundamental thing must be understood: it is not possible to create and uphold the basic rights of the individual if the legal system and in our case, the Supreme Court, are not allowed to criticize Knesset laws that may infringe on these basic rights. If there is no power to protect the public from the almost unlimited legislative power of the legislature, fundamental rights are not actual fundamental rights. They will be nothing more than a beautiful statement detailing sublime values of humanity.
For this reason, there is no legal system in the world that has, within the framework of the Constitution, the Bill of Rights of the Individual, which cannot be maintained through the supervision of the court. This is indeed a restriction on the legislative power of the legislature, but a restriction that tells the legislature that their legislative power does not allow for the violation of the fundamental rights of the individual.
It has been 30 years since this legislation was passed. Life experience has taught us that the intentions of the legislature have been fully realized. No more than 20 laws or clauses in them, which conflict with the Basic Laws, have been repealed to date. For comparison, some countries have established constitutional courts that invalidate dozens of laws in one year. And yet, the controversy on this issue is not over yet, and it is worthwhile to understand what really is the cause of the controversy; And why are critics of the legislation, which is so important to any democratic regime and one of the cornerstones of a democratic regime.
It turns out that there are Knesset members who want to have absolute legislative power. They are not prepared to have any restriction on their power to enact binding laws. And there are others, other than Knesset members, who have objected to the legislation and the change it has created in the balance of power between the legislature and the judiciary.
Those who oppose the very creation of fundamental rights will look for different reasons regarding the legislative process or will tell us how at the utopian level a constitution should be passed in the country. A good example of this was the nodding of the noble words of the late Supreme Court Justice Mishael Cheshin, who declared a return to the people for the purpose of passing the constitution. In short, the same way of legislation that can never be realized. Laws are not created by the people And approved by his chosen institutions.
When the almost eternal American Constitution was passed in 1787, no one spoke to the people or to the people. Representatives of the countries sat in a closed room and were not allowed to reveal the content of their discussions to the media. Of course after the completion of the craft the approval of the houses of parliament of all the countries to which the Constitution applied was required.
Anyone who opposes the existence of the basic rights of the individual in the State of Israel, which overrides legislative initiatives that may harm them, will always look for flaws in the legislative process or explain to us how a constitution should be passed in a way we all know cannot be passed. But behind this lies in practice opposition to the very creation of the fundamental rights of the individual.
The Knesset of Israel, consciously and after a long series of debates, has realized that it gives the Supreme Court the power of judicial review of Knesset laws that may infringe on the fundamental rights of the individual. This is not an authority to invalidate any law that the Supreme Court does not like or does not agree with. It is an authority in the narrow section of the preservation of the fundamental rights of the individual. The fact that to date no more than 20 laws have been repealed clearly proves that the Supreme Court has indeed realized the intention of the legislature.
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