Beinisch: Recent Laws Endanger Plans for Constitution

Supreme Court President Dorit Beinisch said yesterday that recent Knesset legislation has made her very concerned about the future of Israel's quest to draft a constitution.

Speaking at a conference at the Interdisciplinary Center in Herzliya marking 20 years since legislation began on the Basic Law on Human Dignity and Liberty, Beinisch said: "I do not completely share the grim predictions about the future of the constitutional project, although I am very worried ... the events of the past months, the various bills presented in the Knesset, some of which seek to change our basic principles, raise the concern that the structure that has been built here over the past 60 years, and especially over the past 20, is teetering."

While Israel does not have a constitution, a series of 11 Basic Laws meant to frame a future document, carry the same weight with courts today.

Beinisch said that "on an optimistic note" the fact that further Basic Laws have not been passed did not mean the end of work on framing a constitution.

She also said the lack of a Basic Law on legislation made it difficult to inculcate constitutional norms.

Justice Minister Yaakov Neeman has been promoting such a law, which would enshrine in law the ability of the Supreme Court to annul Knesset legislation, but would contain a clause that would still allow the Knesset to pass a law that the Supreme Court has struck down.

Beinisch said such a clause would be acceptable in that it "would allow a harmful law to remain in force for a limited time, if it were passed by a suitable majority of MKs. Only such a clause would allow dialogue between the court and the Knesset," she said.

Former Supreme Court President Aharon Barak said that recent months have seen what Knesset Speaker Reuven Rivlin called a "murky wave of legislation," and an attack on the court that "sometimes borders on incitement."

Barak said the Knesset was studying legislation that was unconstitutional, in that it went against the Basic Laws, which it had never done before. "The feeling is growing that the parliamentary majority wants to make the most of its power as a majority, while freeing itself for all intents and purposes from the restrictions that constitutional democracy places on the majority."

Barak also said he hoped "our constitutional democracy would overcome negative phenomena" like discrimination against women and Arabs, and the "conduct of an insignificant minority in the territories."

'Knesset has the key'

Barak said he hoped "that the understanding of the other would replace the emphasis on the self; and that "every member of the majority will behave toward the minority and the individual the way he would like the majority to act toward him as a minority and an individual."

Barak said the events of recent months "showed how much we need a new, full, good constitution," that would protect and strengthen government and ensure human rights.

He said the key was in the hands of the Knesset, "which began the constitutional revolution and must now complete it."

Barak seconded Beinisch's call for a Basic Law on legislation, and also called for the legislation of Basic Law enshrining civil and social rights.