¹ Most of the articles were published in Haderekh, Liberal Journal.

² P. 1 of the booklet. And see 38 Dlvrei HaKnesset (1963/64) 798. The Bill, with its commentary, appeared also in the booklet, The Bill of Rights (Draft Constitution) (Published by the Liberal Party).

³ See Shapira, A. and Bracha, B., “The Constitutional Status of Individual Free doms” (1972) 2 Israel Yearbook on Human Rights 211, 216–19Google Scholar; Dinstein, Y., Non-State International Law (Tel Aviv, 1979) 159–93.Google Scholar

⁴ Secs. 1–43.

⁵ Secs. 44–71. Also in the Draft constitutions proposed by Yehuda Pinhas Cohen (published, inter alia, in the collection by Gutman, A. & Dror, Y., The Regime of the State of Israel—A Collection of Sources (Jerusalem, 1969) 57)Google Scholar and of Prof.Akzin, B., A Draft Constitution for the State of Israel (B'nai B'rith, 1963)Google Scholar, special chapters were devoted to securing individual freedoms, both classic and social.

⁶ H.H. (5733) 448.

⁷ Sec. 72 of the proposal.

⁸ Sec. 73.

⁹ Sec. 20(c).

¹⁰ The acceptance of sec. 20(c) in its present format in fact leaves the Basic Law devoid of all content. In the State of Israel today, there are more than enough laws which severely infringe upon individual freedoms. It is self-contradictory for these to exist alongside a ceremonial Basic Law, designed to protect human rights. Therefore, it seems to me that the provisions of the Basic Law should not be limited, from the point of view of their normative preference over other laws, with respect to future legislation alone. It is true that we need a period of transition in regard to the old legislation, and the Knesset may even be interested in leaving, on the statute books, some of its existing laws, even if these do not conform to the principles of the Basic Law. In order to solve this problem, without divesting the Basic Law of all content, recourse may be had to one of the following means: 1. Simultaneously with the work on the Basic Law, a Committee of experts and Members of Knesset should be charged with presenting to the Constitution and Legislation Committee a list of existing laws which ought to remain in force even if they are incompatible with the Basic Law. Of course, this list must be restricted, and it would have to be approved by a special majority of the Knesset. The Basic Law will contain an express provision to the effect that it does not affect the force of these laws. 2. In sec. 20(c), it could be provided that the Basic Law also applies to existing legislation, but the entry into force of this provision alone could be postponed (e.g. until one year after the Basic Law has come into force), and in this period, the consequences of repealing existing laws could be dealt with.

¹¹ See e.g., sees. 4(a), 5(a), 7 and 8 of the proposal.

¹² See Shapira & Bracha, supra n. 3, at 225–28.

¹³ See, e.g. the detailed provisions concerning freedom of the person in secs. 6–17 of the proposal, and concerning the right to privacy in sees. 18–21. The legislature's freedom of legislation is limited by a further reservation, i.e. that a law restricting a basic right will not be contradictory to the principles of a democratic regime. See the Commentary on pp. 3–4. Sadly, it must be mentioned that the Bill of the Constitution and Legislation Committee suffers from other grave legal defects as well, such as confusion between the Hebrew terms “hok” and “din” (see, e.g., sec. 20); the granting of power to restrict individual freedoms not only “by a law” bu also “by virtue of a law” (e.g. sec. 6(b)) and “according to a law” (e.g. secs. 7–8), and the lack of attention paid to the distinction between changing the proposed Basic Law and between contradicting its provisions (sec. 20(b) prohibits “contradiction” of the provisions of the Law. Is amendment permitted? Compare sec. 5 of the Basic Law: Legislation Bill. H.H. 5738, 328). These defects are not to be found in Prof. Klinghoffer's proposal.

¹⁴ 138 Divrei HaKnesset (1963–64) 794.

¹⁵ A somewhat improved version of the original Bill of the Constitution and Legislation Committee of the Knesset was presented to it on 21 July 75. A third version, approaching Prof. Klinghoffer's proposal, was submitted more than a year ago, by M.K. Mordekhai Wirshovski.

¹⁶ P. 14 of the booklet.

¹⁷ The background to this argument was M.K. Menachem Begin's charge that the Government departed from its outline at the beginning of 1971, when it agreed to enter into political negotiations which were likely to lead to a partial settlement on the Suez Canal. See Yaakobi, G., The Government (Tel Aviv, 1980) 106.Google Scholar

¹⁸ Basic Law: The Government (1968) 32 L.S.I. 257, sec. 3.

¹⁹ Sec. 15 of the Basic Law.

²⁰ This usage has been firmly rooted in the Knesset since 1949, and there has been no statutory provision on the matter.

²¹ Directive 21.410 of the Directives of the Attorney General.

²² Id., sec. 7.

²³ Id., sec. 10.

²⁴ Rubinstein, A., Constitutional Law of the State of Israel (Schocken Press, 3rd ed., 1980) 316.Google Scholar

²⁵ P. 43 of the booklet.

²⁶ “Individual responsibility”, as opposed to the responsibility of a Minister by virtue of the Government's “collective responsibility” to the Knesset. In legal literature, recourse is sometimes had to the terms “ministerial responsibility” or “parliamentary responsibility” in order to describe the first type of responsibility.

²⁷ p. 46 of the Booklet.

²⁸ Id., at 48–9.

²⁹ Id., at 46.

³⁰ Id., at 47.

³¹ Id., at 57. And indeed, in 1962, Prof. Klinghoffer already proposed that a specific provision, laying down individual responsibility of a Minister to the Knesset, and the Knesset's power to oust a Minister from office, be instituted. 34 Divrei HaKnesset (1962) 2078. The proposal was not accepted: op. cit. at 2084. This question has not been struck off the agenda of the House, and M.K.s of various factions have repeatedly attempted, unsuccessfully, to have a similar Bill approved. See, inter alia, 37 Divrei HaKnesset (1963) 2673 (M.K. Yosef Shufman); 52 Divrei Ha-Knesset (1968) 3192 (M.K. Abraham Tyer); 72 Divrei HaKnesset (1974/75) 971 (M.K. Menachem Begin); M.K. Begin's proposal was again raised in 1977 as a private Member's Bill submitted by Shahal, M.K. Moshe: 84 Drivei HaKnesset (1977) 2911.Google Scholar This proposal, too, was rejected, and was not passed on to Committee (op. cit., at 2916).

³² p. 64 of the Booklet. The article was published in February 1979.

³³ Sec. 25(a).

³⁴ Pp. 67–8 of the Booklet.

³⁵ Sec. 11 of the Basic Law. It must be noted that the passage of a law concerning the dispersion of the Knesset does not transform the Government into a caretaker Government: the Government continues in office by virtue of the confidence of the Knesset according to sec. 3 of the Basic Law: The Government. Thus, for example, the Government of Mr. Menachem Begin continues in office, as a government enjoying the confidence of the Knesset, even after the Knesset legislated a Law Concerning its Dispersion, in February 1981.

³⁶ Pp. 66–7 of the Booklet.

³⁷ Id., at 70–1.

³⁸ The fundamental question of the Knesset's giving instructions to the Government arose in full force for the first time precisely when a caretaker government was in office: 9 Dlvrei HaKnesset (1951) 1816 ff., and remained unanswered. In this framework, no distinction was drawn between a “regular” government and an outgoing government. In Likhovski, E., Israel's Parliament (Oxford, 1971) 139 Google Scholar, for some reason, the conclusion is drawn that the Government's independence from the decisions of the Knesset applies only in the case of a caretaker government. With all due respect, this opinion does not reflect the existing law, and it does not seem acceptable from the point of view of the desired law. Rubinstein, supra n. 24, at 311, on the other hand, argues that a caretaker government is bound by the decisions of the Knesset. It seems that Prof. Klinghoffer, too, supports this solution (p. 71 of the Booklet). As previously stated, this solution reflects the existing law too, and not only the desired law. On this matter, see the comprehensive article of Klein, C., “The Powers of the Caretaker Government: Are they Really Unlimited?” (1977) 12 Is. L.R. 271 CrossRefGoogle Scholar, and in particular, see pp. 284–6. In the Advisory Opinion of the then Attorney General, Prof. Aharon Barak, concerning “Decisions of the Knesset Committees”, he expresses the opinion that it is not within the power of Knesset decisions, which are not based on legislation, to obligate the Government. On this point, Prof. Barak makes no distinction between a “regular” Government and a caretaker Government. In the light of the above-said, it would seem to me that Prof. Barak's conclusion is acceptable only with respect to a Government which holds office by virtue of the confidence of the Knesset, but not with respect to a caretaker Government. See Klein, supra, at 284.

³⁹ p. 26 of the Booklet.

⁴⁰ Id., at 28.

⁴¹ Id., at 31.

⁴² Id., at 37.