Why I wept in the Knesset plenum

Twenty years ago, on Feb. 13, 1992, the Knesset passed the Basic Law: Human Dignity and Liberty. Two weeks ago, we received confirmation of its significance when the Supreme Court abolished the Tal Law because it violated this Basic Law. Indeed, this law changed the face of jurisprudence and affected Israeli society. Since then, 10 laws have been abolished. The last one, which had to do with the Knesset’s security, was abolished a week ago -- and the concept of human dignity and liberty became a household idea. The process was an odd one: For the first time in history, a basic law was accepted at the initiative of the opposition, over the government’s objections.

Many people oppose the human dignity basic law and its interpretation by the Supreme Court. They believe that the court has no authority to abolish any Knesset law. They claim that this Basic Law has no superiority over ordinary laws because nothing about it is stated in the foudning principles, and because it was passed by a small majority, which is not fitting for a law that has constitutional force.

Well, to refute these claims, I will now recall the circumstances under which the law came into existence.

The story is complex and entertaining. In 1989, during the term of the national unity government, then Justice Minister Dan Meridor proposed a bill entitled Basic Law: Basic Human Rights.

The representatives of the haredim (ultra-Orthodox) and the religious population opposed the bill. To support Meridor, I copied the bill word for word, and proposed it as a private member’s bill of my own. Since the coalition had an enormous majority in the Knesset at the time, Prime Minister Yitzhak Shamir agreed not to impose coalition discipline against the bill and MKs were permitted to vote according to their consciences.

On Nov. 15, 1989, the bill passed with an impressive majority of 54 to 19. Only the representatives of the haredim and the religious populations voted against it. But while the bill was in the Constitution, Law and Justice Committee, the incident known as the “dirty trick” took place. Shimon Peres’ attempt to throw Yitzhak Shamir out of office failed, and the Likud remained at the helm of a narrow government comprising the right wing and the religious parties.

All looked lost. The religious and the haredim would be able to torpedo the bill by threatening to break up the government. On the other hand, the “dirty trick” had led to such a degree of general disgust with the political establishment that I hoped that enough Knesset members might be found who would vote with their consciences despite the government’s order, enabling the passing of the Basic Law.

The first among the MKs who did so was Uriel Lynn, whose time will be remembered as the most fruitful and revolutionary in the history of the Constitution, Law and Justice Committee. He was assisted by David Libai, Haim Ramon, Yoash Zidon and Ruby Rivlin. Rivlin went at my request to Halachic authority Rabbi Yosef Eliashiv to persuade him not to oppose the law.

Obviously, it was going to be necessary to compromise with the representatives of Agudath Israel, Shas and the National Religious Party, since according to the political methods customary here, they had the ability to veto any bill by threatening to break up the coalition.

Thus began a long and exhausting negotiation process between myself and them. I was glad to see that Yitzhak Levy and Abraham Ravitz did not rule out the idea, although they wanted to make sure that the bill included compromises that would not harm the religious and haredi populations. Thanks to these compromises, which were painful to both sides, an agreement was reached between the faction representatives who were members of the Constitution, Law and Justice Committee.

Uncertainty remained in only one area: Would the law be anchored? In other words, would it be possible to rescind or change it, not by an ordinary majority, but only by a majority of 61 Knesset members? This question appeared to be the decisive one, since according to the rulings of those days, only an anchored law-- a law that required a special majority to abolish it -- could be considered above ordinary laws, and only in such a case could the court abolish a law that contradicted it. I wondered whether a new era would begin in Israel during which human rights would be protected by a constitution. Would the court be able to abolish any law that did not protect those rights-

The vote in the plenum was historic. It began relatively quietly, since there was a preliminary agreement among all the factions in the committee. But suddenly I noticed several Labor Party MKs trickling out of the Knesset building.

I was not afraid at first, since I had a solid majority for the bill. But then a small commotion broke out in the Likud’s ranks. Opposition to the bill arose. Worse, the rabbis had ordered the haredim to vote against the critical anchoring clause.

The trickle continued. Members of the Likud and the Labor Party streamed out together, even though, as far as the Basic Law was concerned, they were on the same side. None of the bill’s opponents left. I was afraid. I took my name off the speakers’ list and ran out the exit, pleading with the bill’s supporters to return to the plenum. But they ran off to the party primary conventions, claiming that the bill had a decisive majority in any case.

I ran back into the plenum, where the anchoring clause on which the entire bill appeared to depend was about to be voted on. The ranks of the Labor Party had dwindled to the point where only six MKs remained. Despite that, the anchoring clause passed by a single vote.

In vain, I sighed with relief, since when the results were announced, MK Charlie Bitton announced that he was changing his vote from “aye” to “nay.” I always thought that changing one’s vote required that the MK explain his or her reason for doing so to the speaker of the Knesset, but the speaker ruled that the anchoring clause had lost.

Things looked gloomy indeed. Years of work, hundreds of hours of persuasion, mighty efforts, all for naught. Tears gathered in my eyes. I could not conceal my heartbreak. I wept -- the only time I had done so in my 25 years in the Knesset.

My good friends -- Meridor, Lynn and Libai -- hurried to console me. Even without the anchoring clause, the bill would give the Supreme Court the power to abolish laws that went against it, since the law included an explicit statement that all the state’s institutions were obligated to obey it. Moreover, the Basic Law passed once more, in 1994, with 81 MKs voting in favor.

A year later, I was no longer crying; I was shouting in victory. The Supreme Court accepted the position that even though the law had not been anchored in the technical sense, it still ranked higher than other laws and would cancel out any law that contravened it. Charlie Bitton’s change of heart had changed nothing.

Is there justice in the fact that unelected judges can abolish laws passed by elected officials? Yes, since historical experience proves that parliamentary legislation requires judicial checks. This consideration motivated the vast majority of democracies to grant such extreme power to judges -- to abolish a law passed by parliament if it violates the constitution or human rights.

Although the abolition of the Tal Law illustrates the importance of this power, it is conditional upon the court using it with self-restraint and only in extreme cases. The Tal Law, which discriminates between human beings in matters of life and death and violates the basic principle of equality before the law, is such a law, and its abolition is a good thing.

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