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Iddo Porat
constitution of the Basic Laws into a full and operative constitution. In order
to do that he had to bridge the gap between text and ideal. This section will
describe this move.
Soon after the enactment of the two Basic Laws of 1992, Justice Barak wrote
a law review article maintaining that the two new Basic Laws amounted to a
“constitutional revolution.”
27
In it he already laid down all the principles of the
interpretative framework that would later be adopted by the Supreme Court.
It took three more years until most of this framework was adopted. This
occurred in the 1995 Mizrahi case and a few more judicial decisions that com-
pleted it.
28
9.2.1. The Opening Paragraphs of Mizrahi: Reality and Ideal
The Mizrahi case involved an appeal by the Mizrahi Bank and other Israeli
banks, in which they wished to invalidate a law which absolved debtors from
their debts to the banks, because it conflicted with the right to property pro-
tected by the Basic Law: Human Dignity and Liberty. It was the first case in
which the Court took upon itself the task of determining the status of the new
two Basic Laws of 1992 with regard to conflicting legislation. President Barak’s
opinion in Mizrahi opens with the following two paragraphs, setting the stage
for the framework of his interpretation:
In March 1992, the Knesset enacted Basic Law: Freedom of Occupation
and Basic Law: Human Dignity and Liberty. The enactment of these two
Basic Laws effected a substantive change in the status of human rights under
Israeli law. Such rights became constitutionally protected and were accorded
supra-legislative constitutional status. They cannot be changed by “regular”
legislation. A regular law cannot infringe a protected human right unless
the constitutional requirements set forth in the Basic Law have been met.
The failure of a regular law to meet those requirements renders it uncon-
stitutional. Such a law is constitutionally flawed and the Court may declare
it void.
Israel is a constitutional democracy. We have now joined the community
of democratic countries (among them the United States, Canada, Germany,
Italy and South Africa) with constitutional bills of rights. We have become
part of the human rights revolution that characterizes the second half of the
twentieth century.
29
27
Aharon Barak, “The Constitutional Revolution: Protected Fundamental Rights” (1992) 1
Haifa Law Review 9 (Hebrew).
28
Mizrahi, Supra note 3.
29
Ibid.
, at 164.
The Platonic Conception of the Israeli Constitution
279
Note the intermingling of ideal and of fact – of the picture President Barak
wishes to see, and the one he encounters in reality – and the heroic attempt to
bridge the gap between the two. The second paragraph represents the ideal –
“the community of democratic countries (among them the United States,
Canada, Germany, Italy and South Africa) with constitutional bills of rights.”
The ideal is a Western democracy with a full-fledged constitution and a com-
plete bill of rights. This “has become the norm.” The first paragraphs starts
with reality – “[i]n March 1992, the Knesset enacted Basic Law: Freedom of
Occupation and Basic Law: Human Dignity and Liberty.” It must be obvious
to Barak, as it is to anyone reading these two Basic Laws and knowing the his-
tory behind them, that they do not amount to this ideal picture. As mentioned
before, they do not include a complete bill of rights, but only a very partial
list of rights, and they leave uncertain their superiority and the authority of
the court to strike down laws conflicting with them. They are obviously not a
complete constitution. The bridging between ideal and reality comes in the
words of Barak himself, as if creating reality by stipulation: “Israel is a consti-
tutional democracy. We have now joined the community of democratic coun-
tries . . . with constitutional bills of rights” – two stipulations of fact, without any
holding in the legal reality that existed prior to them. Their mere utterance,
however, helped them become reality.
Barak uses very ambiguous terms in these paragraphs in order to mask the
facts that do not fit the ideal: “The enactment of these two Basic Laws effected
a substantive change in the status of human rights under Israeli law. Such
rights became constitutionally protected and were accorded supra-legislative
constitutional status.” What do the words “such rights” refer to? One might
assume that they refer only to the rights that were included in the two Basic
Laws. But the previous sentence refers to a change in “the status of human
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