Israel’s Basic Law on Human Dignity and Liberty, 1992

The Basic Law: Human Dignity and Liberty was approved by the Knesset on 17 March 1992. A few days earlier, on 3 March, the Knesset had approved the Basic Law: Freedom of Occupation . These two Basic Laws are known as those that enshrine the Israeli “Bill of Rights" and mark the beginning of the "constitutional revolution" in Israel’s legal system. For the first time, the Basic Law: Human Dignity and Liberty recognized a list of rights as having supreme constitutional status. This list included the right to dignity, life, body integrity, freedom, property, privacy, and entry to and exit from Israel.

Alongside the precedent-setting recognition of these rights, the Basic Law: Human Dignity and Liberty (hereinafter the 1992 Basic Law) set out the conditions that must be met when the rights enshrined in it may be violated, and these conditions were anchored in Article 8 of the Basic Law, also known as the Limitation Clause. If the conditions set forth in the Limitations Clause are not met, then the court is authorized to order the annulment of the law or government decision that violates those rights. However, there are no clauses in the Basic Law itself that shield and limit its annulment or amendment, and therefore it can be canceled or changed by a simple majority of voting Knesset members.

Background to the Basic Law

Israel does not have a written constitution. The Harari Resolution , also known as the Harari Compromise, passed by the first Knesset in 1950 stipulated that the constitution in Israel would be written in chapters, with each one being called a "Basic Law." From then until 1988, nine basic laws were enacted, only one of which, the Basic Law of 1958: The Knesset , included the rights to vote and be elected to the Knesset. Until the enactment of the 1992 Basic Law, many public discussions took place in the constitutional-political arena in Israel regarding the need to anchor a list of basic rights within new Basic Laws in order to grant them constitutional status. The discussion focused mainly on anchoring the rights to equality, human dignity, freedom of expression, and freedom of association in a new Basic Law. At the same time, granting constitutional status to the right to equality created fundamental disputes in the political arena, between the ultra-Orthodox and secular Jewish blocs and between Jews and Arabs.

The Haredi bloc opposed anchoring the right to equality for two main reasons, both of which related to the Jewish character of the State of Israel. It argued that anchoring the right to equality as a constitutional right would lead to a violation of one of the most important laws for preserving the Jewish character of the State of Israel, namely the 1950 Law of Return , which grants every Jew the exclusive right to immigrate to Israel and receive automatic citizenship but prevents the realization of this right by Palestinian refugees. It also argued that anchoring the right to equality would harm ultra-Orthodox religious institutions, especially the religious courts, which have exclusive jurisdiction to adjudicate matters of personal law, including marriage and divorce. Hence, and throughout the discussions regarding the recognition of rights as having constitutional status, demands were simultaneously placed to ensure that the Jewish character of the State of Israel would not be harmed or endangered.

In 1988, and after Yitzhak Shamir was elected prime minister, a "national unity government" was established, which was based on the widest Knesset majority (97 members) since 1948. This allowed for opening a discussion on the enactment of a basic law on human rights. Two proposals were presented: a government bill by a team chaired by Justice Minister Dan Meridor , and a bill submitted individually by MK Amnon Rubenstein . The government bill required a two-third majority of Knesset members to amend any of its clauses in the future, but otherwise both proposals were similar in substance.

* Both proposals recognized the right to human dignity, personal liberty, freedom of movement, religion, expression, creativity, privacy, and individual property as constitutional rights.

* In order to mitigate the fear of harm to the Jewish character of the state, they included a recognition of the 1948 “Declaration of the Establishment of the State of Israel ” as a document constituting a "fundamental principle" in the Israeli legal system.

* Both proposals recognized the constitutional status of the right to equality.

The two proposals were strongly opposed by the ultra-Orthodox bloc. In addition to their opposition to the right to equality as argued above, they claimed that recognizing the status of the 1948 Declaration could not guarantee the prevention of harm to the Jewish character of the state, and they demanded that such character and the prohibition of harming it be included as a direct and explicit basic principle. To circumvent these objections and to take advantage of the broad coalition majority, the Knesset decided to make no reference to the principle of equality or to the 1948 Declaration and to split the basic bill on human rights into four separate basic bills that would deal with the following: human dignity and liberty, freedom of occupation, freedom of expression, and freedom of association. At the same time, a precedent-setting recognition was added that the values of the State of Israel are based on its being a "Jewish and democratic" state.

Innovations in the 1992 Basic Law

On 17 March 1992, the Basic Law: Human Dignity and Liberty was approved by a majority of 32 in favor, 21 against, and 1 abstention. Among the supporters of the Basic Law was Hadash , the only Jewish-Arab party. The party's representative at the time, MK Muhammad Nafa' , stressed that the party's support was intended to ensure the "lesser evil" in terms of recognition of constitutional rights, even though it did not include recognition of rights to equality and despite the establishment of the Jewish character of the State of Israel as a constitutional principle in the Basic Law.

In 1994, an amendment to the basic law was approved to add a new Article 1 entitled "Basic Principles," which established the constitutional status of the 1948 Israeli “Declaration of Establishment of the State of Israel”:

The basic rights of man in Israel are based on the recognition of the value of man, the sanctity of his life and his being free, and they will be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel.

In addition to the constitutional recognition of the Jewish character of the State of Israel (Articles 1, 1a) and the anchoring of the fundamental rights (Articles 2–7), there are a few other innovations in the Basic Law: Human Dignity and Liberty:

1.Exercising judicial review of a law or administrative decision that violates the rights enumerated in the Basic Law:

A “limitation clause” enumerates the conditions without which an infringement of these rights by the state is null and void (Article 8): (a) the infringement must be in the law or in an express authorization therein; (b) the law should reflect the values of the State of Israel as a “Jewish and democratic” state; (c) the law should be for a "worthy purpose”; and (d) the infringement should be to an "extent that does not exceed what is required.”

2. Anchoring the principle of “retention of laws”:

It ensures that laws which existed before the enactment of the 1992 Basic Law and did not meet the conditions of Article 8 are not affected or repealed by this enactment (such as the Law of Return and the Absentee Property Law of 1950).

3. Applicability to any administrative authority:

Every administrative authority (government, minister, any public authority), not just the legislature, must respect the rights under the Basic Law (Article 11).

4. Stability of the Law in Emergency Situations:

Emergency regulations may not change or cancel, not even temporarily, the Basic Law, but they may limit or deny rights recognized by the Basic Law, provided that the limitation or denial is for a "worthy purpose" and “for a period and an extent that do not exceed the required" (Article 12). The discretion whether to deny or limit the rights in the Basic Law rests with the government, which is the exclusive competent authority to enact emergency regulations by virtue of Articles 38-39 of the Basic Law: The Government .

The Supreme Court's Interpretation of the 1992 Basic Law

The Hamizrahi Bank Ruling is the first case taken to the Supreme Court in which arguments were raised regarding the 1992 Basic Law. The ruling, which was pronounced in November 1995 under the leadership of Supreme Court President Meir Shamgar and Vice President Aharon Barak , started what is known as the "constitutional revolution" in the Court's rulings. It analyzed for the first time the status of the Basic Law and the status of the rights set forth in it, and it provided an interpretation of the "Limitation Clause.” Though the judges were divided on issues of principle, the majority ruled that the 1992 Basic Law, as well as all other Basic Laws, have constitutional status that places them above ordinary legislation and that, in practice, constitute the unwritten constitution of the State of Israel.

The ruling stated also that the Supreme Court has the authority to judicially review ordinary laws and declare them null and void if they contradict the conditions set forth in the Limitation Clause. For the Court, the stipulation that the infringement of the rights enshrined in the 1992 Basic Law should be restricted “to an extent that does not exceed what is required” is actually a “proportionality clause” test consisting of three subtests that must all be met in order for an infringement to be constitutional:

* a “rational connection” test, which requires proof of a connection between the manner in which the law infringes the constitutional right and the purpose of the law;

* the “least prejudicial means” or the “sweeping test,” which examines whether the purpose of the law could have been realized by less sweeping and less prejudicial means; and

* the “narrow test” or the “value test,” which makes it necessary to examine whether the benefit arising from the infringement of rights exceeds the damage caused by the infringement and that this benefit justifies the infringement.

The constitutional analysis made by the Supreme Court in the Mizrahi Bank ruling is still relied on today. Over the years, the Supreme Court has developed more reasoned interpretive tools for the constitutional analysis set forth in the judgment and has also examined the scope of the rights included in the Basic Law, especially the scope of the right to dignity, in a way that led to including, as part of the latter, additional rights that were not explicitly recognized in the Basic Law, such as the right to equality, freedom of expression, education, due process, water, and, more recently, electricity.

The 1992 Basic Law and the Rights of Palestinians on Both Sides of the 1967 Lines

Since the enactment of the Basic Law, many petitions have been filed with the Supreme Court demanding the annulment of laws or government decisions that violate human rights, including petitions relating to the violation of the rights of Palestinian citizens of Israel and Palestinians in the Occupied Territories. As in any other constitutional petition, the Supreme Court applied the proportionality tests set forth in the Mizrahi Bank ruling in order to examine the arguments regarding the violation of Palestinians' rights. At the same time, there were isolated cases in which the constitutional interpretation of the right to dignity and the application of proportionality tests had a unique impact on Palestinian rights, especially insofar as the petitions concerned the violation of rights at the collective rather than individual level.

Despite the significance of the Basic Law in regulating the constitutional status of fundamental rights and the authority granted to the Supreme Court to review laws, the anchoring of Israel as both a “Jewish and democratic” state has broad implications on the scope and implementation of the right to equality, especially when its implementation clashes with the Jewish character of the state.

Here are some prominent examples of petitions:

1. The Right to Dignity and the Arabic Language in Israel:

In 2002, the Supreme Court issued a ruling on a petition filed demanding that Arabic be added to street signs in mixed cities. The petition argued that ignoring the Arabic language on signs in these cities "violates the dignity of Arabic speakers as a group with national-linguistic uniqueness." The court accepted the petition but did not base its decision on the dignity argument. It adopted two other main grounds: the status of Arabic as an official language, which was set forth in Article 82 of the Palestine Order in Council of 1922 ; and the failure to add Arabic on the signs as a violation of the right to equality and discrimination against Arab citizens on the basis of their national background.

2. The right to dignity and freedom of political and collective expression related to the commemoration of the Nakba:

In 2012, the Supreme Court issued its ruling in a petition questioning the constitutionality of the Budget Foundations Law of 2011 (Amendment No. 40) , also known as the Nakba Law. According to this law, the Minister of Finance may revoke the budget allocated to an entity or institution that is budgetarily supported by the state, if it conducts activities aimed at marking and reviving Nakba events. The petition argued that the law violates the 1992 Basic Law because it infringes the right to collective dignity by attempting to limit the reference to the Palestinian narrative which is an inseparable part of the identity of most Arabs in Israel, thus infringing the very components of the group's identity, and also by presenting it as inferior and undesirable and including elements of collective oppression. The ruling rejected the petition on the grounds of the “ripeness doctrine,” according to which in the absence of a concrete case to which the law is applied, it is not possible to examine the constitutionality of the violation and therefore the law is not ripe for judicial review. As a result, the court did not address the arguments on the merits raised by the petitioners.

3. The effect of the Basic Nation-State Law on the right to dignity enshrined in the 1992 Basic Law as applicable to Arab citizens:

In 2021, the Supreme Court issued a ruling on petitions filed to invalidate the Basic Law: Israel, the Nation State of the Jewish People , also known as the Basic Nation-State Law, which was approved by the Knesset in 2018. Among the arguments presented by the petition filed on behalf of the political leadership of Arab citizens of Israel – the Higher Follow-Up Committee for the Arab Citizens in Israel – one was related to human dignity, a right acknowledged by the 1992 Basic Law as a constitutional right. The ruling rejected all the petitions filed to cancel the Basic Law, inter alia, on the grounds that the identity of the State of Israel as a “Jewish and democratic” state is already enshrined in the 1992 Basic Law and in the Basic Law: Freedom of Occupation, as well as in the Declaration of the Establishment of the State of Israel, and therefore, in effect, the Nation-State Law only anchors the character of the state that is already anchored in previous legal documents.

4. Application of the 1992 Basic Law to Palestinians in the Occupied Territories:

Over the years, the Supreme Court has refrained from determining the direct application of the Basic Laws in general, and the 1992 Basic Law in particular, to the Occupied Palestinian Territories, due to the implications of their extraterritorial application. In 2020, the Supreme Court issued a ruling on petitions filed to invalidate the 2017 “Law for the Regularization of Settlement in Judea and Samaria ” that was intended to retroactively legalize settlements established on land privately owned by Palestinians in the West Bank . Although the court accepted the petitions and annulled the law due to the violation of the right to dignity and equality of Palestinian residents of the West Bank, it nevertheless ruled that since the law does not meet the conditions set forth in the constitutional interpretation of the 1992 Basic Law, it must be declared null and void, and therefore is superfluous to the need to decide the two fundamental questions: whether the Knesset has authority to enact laws with direct application to the West Bank and whether the 1992 Basic Law is applicable to the Palestinians in the West Bank.