Basic Laws in Israel: human and civil rights

What does it mean legally that Israel has no constitution?

Israel has no constitution. This is no secret: it is a well-known fact, but many people do not really understand what it means. Without a constitution, the Knesset (Israel’s parliament) can (in theory) pass any law it wants. What limits it are the Basic Laws, in particular Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. The Supreme Court held in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) that an ordinary law that infringes a right protected by these Basic Laws, not in accordance with the limitation clause, can be struck down. This is the Israeli model of a constitution.

The Basic Laws are considered legislation with a higher status than ordinary laws, but the requirements for changing them differ. Basic Law: Freedom of Occupation can be changed only by a Basic Law passed by a majority of the members of the Knesset (section 7). Basic Law: Human Dignity and Liberty sets no special majority for changing it, but it protects against change by emergency regulations (section 12). There are two main Basic Laws relevant to human rights: Basic Law: Human Dignity and Liberty (1992) and Basic Law: Freedom of Occupation (1994). Most of the rights that the courts protect are derived from them.

What does Basic Law: Human Dignity and Liberty protect?

Basic Law: Human Dignity and Liberty, 5752-1992 is the backbone of human rights protection in Israel. Section 2 states: “There shall be no violation of the life, body or dignity of any person as such”. Section 5 adds: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. The wording is open, and over the years the Supreme Court has filled it with a broad interpretation.

The Basic Law expressly lists these rights (sections 2–7): life, bodily integrity and dignity; property; personal liberty (not to be detained unlawfully); the freedom to leave Israel and the right of the State’s citizens to enter it; and privacy. Freedom of expression is not mentioned expressly. But under the case law of the Supreme Court, it is also derived from this Basic Law (see HCJ 10203/03 HaMifkad HaLeumi Ltd. v. Attorney General, IsrSC 62(4) 715).

But the rights are not absolute. Section 8 of the Law (the limitation clause) allows them to be limited. But this is allowed only by a law that befits the values of the State of Israel, is enacted for a proper purpose, and to an extent no greater than is required. It is also allowed under such a law, by express authorization in it. The proportionality rule is the main standard by which the courts in Israel examine any infringement of basic rights.

How strongly is freedom of expression protected under Israeli law?

Freedom of expression is not written expressly in a Basic Law. But the Supreme Court has held that freedom of political expression is part of the constitutional right to human dignity (HCJ 10203/03 HaMifkad HaLeumi Ltd. v. Attorney General, IsrSC 62(4) 715). This means that the state cannot restrict expression without a justified legal ground.

However, there are recognized limits. Expression that poses a real danger to state security, incitement to violence, or defamation is restricted. A publication that is likely to humiliate a person in the eyes of others or to bring them into contempt is defamation. It is a civil wrong even when it is true: the truth of the publication protects only if it involved a public interest (Prohibition of Defamation Law, 5725-1965, sections 1, 7 and 14). Commercial expression (advertisements, labels) is subject to specific laws. The question in every case is: does the restriction pass the proportionality test?

What may state authorities know about a person under the Protection of Privacy Law?

The right to privacy is protected both by Basic Law: Human Dignity and Liberty and by the Protection of Privacy Law, 5741-1981. The Law prohibits any person, whether a government or a private body, from invading another person’s privacy without their consent (section 1). It lists the types of invasion, including using information about a person’s private affairs for a purpose other than the one for which it was given (section 2). A special arrangement applies to public bodies: a public body may not pass on personal information, except with consent or under the exceptions in the Law (sections 23B–23C).

In the digital age, the right to privacy has become a burning issue. Access to communications data without a court order, government surveillance, and information sharing between government bodies are all examined in case law and in legislation that develops accordingly. If a government body disclosed your personal information unlawfully, this can be an invasion of privacy, which is a civil wrong (section 4).

Equality and the prohibition of discrimination

Although there is no express equality provision in the Basic Laws, the Supreme Court has held that the principle of equality is derived from Basic Law: Human Dignity and Liberty (see HCJ 6427/02 Movement for Quality Government in Israel v. Knesset). A public body cannot discriminate against a person on the basis of origin, religion, sex, sexual orientation or disability. If it did, the way is open to a petition or a claim.

Specific legislation strengthens this protection. The Equal Rights for Persons with Disabilities Law, 5758-1998 requires employers to make accommodations for an employee with a disability. This applies as long as they do not impose an undue burden (section 8). It also requires whoever is responsible for a public place or a public service to make “accessibility adjustments” (Chapter E1). Equal employment laws prohibit discrimination in hiring and in terms of employment. The duty of accommodations and the prohibitions of discrimination at work do not apply to an employer of fewer than six employees. This is set by section 21(c) of the Employment (Equal Opportunities) Law, 5748-1988 (חוק שוויון ההזדמנויות בעבודה, התשמ״ח-1988), and section 13(a) of the Equal Rights for Persons with Disabilities Law.

A petition to the High Court of Justice (HCJ): when and how?

The Supreme Court, sitting as the High Court of Justice (HCJ), hears petitions against public authorities and bodies. It does so in matters that are not within the jurisdiction of another court (section 15(c)–(d) of Basic Law: The Judiciary). Some matters are listed in the First Schedule to the Administrative Courts Law, 5760-2000 (חוק בתי משפט לענינים מינהליים, התש״ס-2000), for example freedom of information and business licensing. Petitions in these matters are filed with the Court for Administrative Affairs. Any person harmed by a decision of a public body, such as a local authority, a government ministry, a prison or a recognized public body, can petition.

The HCJ examines: Did the body act within its authority? Is the decision reasonable? Does it infringe a basic right without proportionate justification? A petition that is accepted can lead to the decision being canceled. It can also lead to an order directing the authority to do or not to do something (section 15(d)(2) of Basic Law: The Judiciary). The HCJ’s powers are to give orders; for monetary compensation, a civil claim must be filed. These are not simple routes, but they are not impossible, and they are certainly not reserved for large organizations.

How do you file? The High Court of Justice Procedure Regulations, 5744-1984 (תקנות סדר הדין בבית המשפט הגבוה לצדק, התשמ״ד-1984) set the rules. The petition sets out the petitioner’s details and the grounds in fact and in law. It follows Form 1 in the Schedule to the Regulations (regulation 2). It includes an address for service in Israel (regulation 3) and is supported by an affidavit (regulation 4). The petition is brought before a Supreme Court justice, who may grant the order, summon the petitioner or transfer the petition to a panel of three. The panel may dismiss a petition that shows no cause on its face, without summoning the petitioner (regulation 5). If the court dismissed the petition without summoning the respondent, it may order the petitioner to pay costs to the State (regulation 6).

Basic rights for people who are not citizens

The basic human rights, such as dignity, liberty and bodily integrity, apply to every person within Israeli jurisdiction, not only to citizens. By contrast, the right to vote for the Knesset and to be elected to it is reserved for citizens (sections 5–6 of Basic Law: The Knesset). But in local authority elections, a resident of the authority who is not a citizen may also vote (Local Authorities (Elections) Law, 5725-1965 (חוק הרשויות המקומיות (בחירות), התשכ״ה-1965)). A permanent resident is in between: they have considerable social rights, but not the full civil rights.