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The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law*

Published online by Cambridge University Press:  04 July 2014

Aharon Barak
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Extract

In March 1992, Israel underwent a Constitutional Revolution. In March 1992, two new Basic Laws were passed: Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Under these new Basic Laws, several human rights — among them Dignity, Liberty, Mobility, Privacy, Property — acquired a constitutional force above the regular statutes. Most of these rights were already protected, prior to the constitutionalization. While a few were protected by the legislator, most were protected by the case law of the Supreme Court, developed by some of our greatest judges since the establishment of the State. The main difference made by the Basic Laws is the strengthening of the normative value of these rights. A regular Knesset (Parliamentary) statute can no longer infringe upon these rights, unless it fulfils the requirements of the Basic Laws (the ‘limitation clause’) namely, it befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose. Thus, we became a constitutional democracy.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 3 - 23
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

**

President of the Supreme Court of Israel.

References

1 Basic Law: Freedom of Occupation (S.H. 1994, No. 1454, p. 90) repeals and replaces the former Basic Law on Freedom of Occupation enacted in 1992 ( S.H., No. 1387, p. 114. Basic Law: Human Dignity and Liberty Google Scholar (S.H. 1992, No. 1391, p. 150). The full text of this Law is reprinted at the end of this article, p. 21.

2 Basic Law: Human Dignity and Liberty, sec. 8; Basic Law. Freedom of Occupation, sec. 4.

3 Ganimat v. State of Israel (1995) 49(iii) P.D. 355, at 413.

4 Ibid., at 421.

5 Ibid.

6 See Barak, , Interpretation in Law, Vol. III: Constitutional Interpretation (Jerusalem, 1994, in Hebrew)Google Scholar.

7 See R. v. Oakes [1988] 1 S.C.R. 103; Hogg, P.W., “Interpreting the Charter of Rights: Generosity and Justification” (1990) 28 Osgoode Hall L.J. 817 Google Scholar; Forest, La, “The Balancing of Interest Under the Charter” (1992) 2 N.J.C.L. 133 Google Scholar; Weinrib, , “The Supreme Court of Canada and Section One of the Charter” (1988) 10 S. Ct. L.R. 469 Google Scholar.

8 Hesse, K., Grundzuge des Verfassungsrechts für die Bundesrepublik Deutschland (Karlsruhe, 16th ed., 1988) 27 Google Scholar.

9 van Dijk, P. and van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights (Deventer, 2nd ed., 1990) 573 Google Scholar.

10 Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245, at 270. See also Malone v. United Kingdom (1984) 7 E.H.R.R. 14, at 40; Leander v. United Kingdom [1987] Series ‘A’ no. 116; Silver v. United Kingdom (1983) 5 E.H.R.R. 547.

11 United Mizrachi Bank v. Migdal Kfar Shituft (the Gal case) (1995) 49(iv) P.D. 221, at 434.

12 State v. Makwanyane and Another, Case No. CCT/3/94 [1995] 3 SALR, SA, 391.

13 Kommers, D.P., The Constitutional Jurisprudence of the Federal Republic of Germany (Durham and London, 1989) 316–320 Google Scholar.

14 R. v. Smith (1987) 1 S.C.R. 1045.

15 R. v. Daviault (1994) 3 S.C.R. 363.

16 R. v. Vaillancourt (1987) 2 S.C.R. 636.

17 See Ganimat, supra n. 3, at 421.

18 36 L.S.I. 35.

19 The State v. Bhulvana, Case No. A/004/94 [1995] 1 SALR, SA, 509; The State v. Gwadiso, Case No. CCT 11/95.

20 R. v. Oakes, supra n. 7.

21 Cf. R. v. Hebert [1990] 2 S.C.R. 151; R. v. Broyles [1991] 3 S.C.R. 595.

22 An example of such new legislation has recently been provided by the Criminal Procedure Act (Enforcement Powers — Bodily Search of the Suspect) 1996. This Act lays down a detailed regulation of bodily searches and forensic examinations of suspects, which tightens up most substantially as the intrusion into a suspect's bodily integrity, privacy and dignity becomes more severe. The power to conduct such searches without the suspect's consent has been circumscribed. Internal bodily examinations, not consented to by the suspect, are allowed by this Act to be conducted only after obtaining an appropriate judicial warrant. The intrusion into the basic human rights is thus aimed to be minimized to the extent necessary for furthering criminal investigations, consonantly with the constitutional principles set by the Basic Law: Human Dignity and Liberty. The constitutionality of certain provisions of this Act may, of course, still become a subject of controversy in the future.

page 21 note 1 For the official English text of the Declaration see 1 L.S.I. 1.