Basic Laws of Israel

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The Basic Laws of Israel (Hebrew: חוּקֵּי הַיְּסוֹד‎, romanizedχuke ha-yesod) are the constitutional laws of the State of Israel, and can only be changed by a supermajority vote in the Knesset (with varying requirements for different Basic Laws and sections). Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence.[1] The Basic Laws deal with the formation and role of the principal institutions of the state, and with the relations between the state's authorities. They also protect the country's civil rights, although some of these rights were earlier protected at common law by the Supreme Court of Israel.[2] The Basic Law: Human Dignity and Liberty enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.[3][4]

The Basic Laws were intended to be draft chapters of the future Israeli constitution,[5] postponed since 1950; they act as a de facto constitution until their future incorporation into a formal, unitary, written constitution.[6]Israel as of 2018 functions according to an uncodified constitution consisting of both material constitutional law (based upon cases and precedents), common law, and the provisions of these formal statutes.

Background

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Cover page for Israeli Constitution draft proposed by the Institute for Zionist Strategies

The State of Israel has an unwritten constitution. Instead of a formal written constitution, and in accordance with the Harari Decision (הַחְלָטַת הֲרָרִי) of 13 June 1950 adopted during the Israeli Constituent Assembly, the State of Israel has enacted several Basic Laws of Israel dealing with the government arrangements and with human rights. The Israeli Supreme Court President Aharon Barak ruled that the Basic Laws should be considered the state's constitution, and that became the common approach throughout his tenure (1995-2006). Opponents of this approach include Barak's colleague, Judge of the Supreme Court Mishael Cheshin.[clarification needed]

According to Israel's proclamation of independence of May 14, 1948, a constituent assembly should have prepared a constitution by October 1, 1948. The delay and the eventual decision on June 13, 1950 to legislate a constitution chapter by chapter, resulted primarily from the inability of different groups in Israeli society to agree on the purpose of the state, on the state's identity, and on a long-term vision. Another factor was the opposition of David Ben-Gurion himself.[7]

Various bodies in Israel have called for the enactment of a formal constitution as a single document, and have submitted ideas and drafts for consideration.[citation needed]

The Israeli Declaration of Independence stated that a formal constitution will be formulated and adopted no later than 1 October 1948.[8] The deadline stated in the declaration of independence proved unrealistic in light of the war between the new state and its Arab neighbors. General elections were arranged on 25 January 1949, in order to elect the Constituent Assembly which would approve the new state's constitution. The Constituent Assembly convened on February 1949. It held several discussions about the constitution without reaching an agreement.

For a number of reasons, Israel's first prime-minister, David Ben-Gurion, did not wish to create a constitution.[9] After only four meetings, the Constituent Assembly adopted on 16 February 1949, the Transition Law, by which means it became the "First Knesset"[10] The Knesset is, therefore, one of three sovereign parliaments in the world that are not bound by a codified constitution; the Parliaments of the United Kingdom and of New Zealand are the others. Because the Constituent Assembly did not prepare a constitution for Israel, the Knesset is the heir of the Assembly for the purpose of fulfilling this function.[10]

The Basic Laws do not cover all constitutional issues, and there is no deadline set for the completion of the process of merging them into one comprehensive constitution. There is no clear rule determining the precedence of Basic Laws over regular legislation, and in many cases this issue is left to interpretation by the judicial system.[citation needed]

The Harari Decision

In 1950, the first Knesset came to what was called the Harari Decision. Rather than draft a full constitution immediately, they would postpone the work, charging the Knesset's Constitution, Law, and Justice Committee with drafting the document piecemeal. Each chapter would be called a Basic Law, and when all had been written they would be compiled into a complete constitution.[11]

Between 1958 and 1988 the Knesset passed nine Basic Laws, all of which pertained to the institutions of state. In 1992, it passed the first two Basic Laws that related to human rights and the basis of the Supreme Court's recently declared powers of judicial review. These are "Basic Law: Human Dignity and Liberty" and "Basic Law: Freedom of Occupation". These were passed by votes of 32–21 and 23–0, respectively.

In 1992, Aharon Barak, President of the Supreme Court (equivalent to Chief Justice), declared a "constitutional revolution" and attached constitutional ascendancy to the Basic Laws of Israel.[11]

Procedure for amendment

The Knesset enjoys de jure parliamentary supremacy, and can pass any law by a simple majority, even one that might arguably conflict with a Basic Laws of Israel, unless the basic law has specific conditions for its modification. Basic laws including specific conditions include article 4 of the Basic Law of the Knesset, on the system of electing the Knesset members, can only be amended by a majority of 61 of the 120 Knesset members; article 44, which prevents the amendment of the law by means of the Emergency Regulation, can only be amended by a majority of 80 members; several other Basic Laws also include an instruction regarding their permanence and protection from changes by means of emergency regulations. The Basic Laws on the government and on freedom of occupation can only be amended by a majority of the Knesset members.[12]