Constitutional reforms in foreign countries on the example of Israel

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Abstract work

Constitutional reforms in foreign countries on the example of Israel

This article is the constitutional discussion concerning the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court regarding the 1992 basic laws (in particular, respective to the right to human dignity) and criticizes the Court's reluctance to apply the strategies to incorporate economic and social rights into the Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is the constitutional imbalance in the Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to the civil and political counterparts, and puts in the question of the Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in the Israeli constitutional law, and raise hopes for the belated judicial change of heart concerning the need to protect at least a `hard core' of economic and social rights. Still, the article sets that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

Introduction: “Economic and Social Rights as Constitutional Rights” is one of the major achievements of the international law during the last century has been the development of an extensive bill of human rights, enunciated in international treaties and declarations, and implemented through the decisions of international courts and tribunals. constitutional right israeli human

Among the most important of these treaties are the International Covenant on Civil and Political Rights from December 16, 1966; the International Covenant on Economic, Social and Cultural Rights, from December 16, 1966; the International Convention on the Elimination of All Forms of Racial Discrimination from December 21, 1965; the Convention on the Elimination of All Forms of Discrimination against Women from December 18, 1979; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from December 18, 1984; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families from December 18, 1990; the Convention for the Protection of Human Rights and Fundamental Freedoms from November 4, 1950; the American Convention on Human Rights, November 27, 1969; the European Social Charter, October 18, 1961; the African Charter on Human and Peoples' Rights, June 27, 1981.

The two most active international human rights courts are the European Court of Human Rights and the Inter-American Court of Human Rights. However, quasi-judicial procedures also operate under the auspices of the UN Human Rights Committee, the comparable domestic constitutions, which were primarily designed to protect individuals from arbitrary governmental encroachment upon their civil and political liberties and contained negative right formulations,4 the Universal Declaration on Human Rights, the quintessential instrument of the international human rights movement, adopted a more comprehensive approach towards human rights protection. The 1948 Declaration included beside a list of civil and political rights a number of economic and social rights (ESR), which were formulated as positive State obligations requiring affirmative duties of action. The espousal of ESR by widely ratified international instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on Elimination of Discrimination against Women and the Convention on the Rights of the Child (CRC), further stress the importance that members of the international community attribute to the promotion of such rights. These developments at the international level had considerable impact upon the constitutional discourse within numerous national legal systems. Such interaction is of exceptional importance since many existing constitutions fail to grant ESR full constitutional protections. For example, UN Committee against Torture, the UN Committee on the Elimination of Racial Discrimination, the UN Committee on the Elimination of Discrimination against Women, the Inter-American Commission on Human Rights, the African Commission on Human Rights and the European Committee on Social Rights.

An obvious example is the United States Bill of Rights (adopted in 1791 as a series of Constitutional Amendments), which contains mostly negative provisions: `Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances' (US Const., 1st Amendment); `The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ' (4th Amendment.); No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (14th Amendment.).

These rights include the right to social security (article 22), the right to work and to just and favourable work conditions (article 23-24), the right to an adequate standard of living (article 25), the right to health (article 25), the right to education (article 26) and the right to participate in cultural life and to enjoy the benefits of scientific progress (article 27). Some constitutions lack explicit reference to many ESR (e.g., the U.S. Constitution and the Canadian Charter of Rights and Freedoms); some contain a loose declarative commitments to social goals (e.g., the Irish Constitution and the Indian Constitution); and others merely declare the existence of a `social state' (e.g., German Constitution). As a result, questions have been raised with increasing frequency, concerning the adequacy of existing constitutional norms and the desirability and feasibility of reforming constitutional law. In response, different reforms have been suggested, in various legal, academic and political circles, ranging from calls for constitutional amendments to proposals for a reinvigorated judicial approach to the interpretation of existing constitutional provisions. This new discourse seems to have actually encouraged some legislators and judges to improve the protection at both the domestic and international level.

The new constitutional discourse regarding the constitutional status of ESR has been particularly powerful in the context of new constitution-making processes. Political developments which took place in recent years have inspired several countries to draft new constitutions, which development facilitated societal debates concerning the proper role of ESR in the new constitutional order. Indeed, the incorporation of social rights into the 1996 South African Constitution, and the impressive case law of the South African Constitutional Court in implementing these rights, aptly demonstrates the potential to enhance the realization of ESR through the vehicle of a new constitution. This article addresses the constitutional discourse surrounding the status of ESR in Israel. The fluid nature of the newly-created Israeli constitutional order, the ongoing nature of the constitution-writing project and the deteriorating social conditions in Israel in recent years amplify the centrality of the discourse in Israeli constitutional law.

New constitutions have been adopted in recent years in former Communist-bloc East European countries, in the former Republics of the Soviet Union, in the States comprising the former Federal Republic of Yugoslavia, in South Africa and in the number of new states (eg, Eritrea, East Timor). In 2004, an interin constitution was adopted in Iraq.

We are of the view that one can use interesting universal insights to inform the Israeli debate and draw universally-relevant conclusions from the Israeli experience. In particular, there is considerable comparative value in recent developments indicating greater receptiveness on the part of the Israeli legal system to the idea of the judicial enforceability of ESR and increased willingness to issue specific remedies in response to violations of ESR by the State. It should be noted however that the historical development of Israeli Constitutional Law comprise some idiosyncratic features which must be taken into consideration when drawing analogies from the Israeli example. Before examining the protection of ESR within the Israeli legal system, we wish to clarify at the outset a key term used throughout the article -ESR. There have been many attempts to define economic and social rights, and to distinguish them from civil and political rights, and from group rights (or third generation rights).

Several attempts have made to define what constitute ESR. One approach views ESR as predominantly protected via positive rights, compared to the predominantly negative nature of civil rights. Another approach highlights the historical context of the emergence of ESR, and accordingly divides human rights into temporal generations (ESR constituting a useful guidelines, no authoritative formula has so far emerged (perhaps reflecting the impossibility of the task of distinguishing between ESR and civil and political rights). Since the task of defining and deconstructing ESR exceeds the scope of this paper, we will use a flexible characterization, which we believe is suited to delineate the main outlines of the Israeli debate concerning the status of ESR: For our purposes then, ESR are human rights which - (a) normally require extensive governmental involvement in order to secure their full realization (recognizing, however, that ESR also have negative features); (b) pertain to the attainment and development of basic human needs and capabilities; (c) benefit, in particular, economically underprivileged individuals and groups; (d) have developed, by and large, in tandem with second generation of rights). A third approach considers ESR as rights to fundamental services and goods, underlying basic human capabilities, which are inaccessible to the economically underprivileged (often tying ESR to more comprehensive distributive justice projects).

For example, it is now widely accepted that civil and political rights have dominant positive obligation components.

There is extensive literature on the nature of the positive obligation to implement ESR. It is generally agreed that the positive duty to secure ESR can be broken down into two specific obligations: to protect from violation by private entities and to actively fulfil the rights. The latter obligation can be broken down again into a duty to directly provide services and to facilitate individual attainment of social services and resources. For the sake of completion one should note that ESR also introduces a negative obligation to respect the right.

Since there is good correlation between rights possessing all or most of these attributes and the list of rights recognized by the ICESCR, we will use the text of the Covenant as a convenient yardstick to assess which human rights should qualify as ESR. We now move to discuss the status of ESR under Israeli constitutional law. The discussion focuses on the recognition of ESR as constitutional rights and deals only cursorily with sub-constitutional implementation of ESR (via the rather extensive body of ordinary legislation and administrative action) and many concrete legal questions that ensue from endowing ESR with constitutional status - e.g., the margin of appreciation afforded to governmental agencies in implementing positive ESR, available constitutional remedies etc. These issues deserve extensive discussion in separate articles. In all events, these specific issues cannot be developed satisfactorily before the legal status of ESR in Israel is determined. The second section describes, in brief, the main features of Israeli constitutional law and analyzes the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity). Part three, of the article introduces the debate over the status of social rights in Israel in the wider context of dramatic changes in Israel constitutional law, which has taken place since the 1990s. In the fourth section we highlight the inadequate constitutional status of ESR in Israel. Here, we will argue that the Supreme Court's interpretative moves within the existing constitutional law framework are highly selective and reveal a hidden bias against ESR. We will also argue that the existing legal situation in Israel is incompatible with Israel's obligations under the ICESCR, to which it is a party. In the fourth part we examine a shift in the Supreme Court's attitude towards ESR - moving from open hostility to the idea of their incorporation into constitutional law (most notably in the Friends of GILAT case) to increased willingness to give effect to ESR, to endow them with some constitutional status and to consider appropriate legal remedies (most notably, in the recent YATED and Marciano cases). We evaluate this trend in the light of growing international consensus over the justifiability of ESR and their indivisibility from civil and political rights. In the concluding part of the article, we offer several observations relating to the limits of promoting economic and social rights through litigation and call for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset. II. A Brief History of Israeli Constitutional Law A. The Basic Laws When Israel was founded in 1948, after thirty years of the British Mandate, its founders assumed that a constitution and a bill of rights would be forthcoming in the near future. Indeed, the Declaration on the Establishment of the State of Israel (also known as the Declaration of Independence) contained an explicit pledge to draft a written constitution. However, soon after the Declaration was proclaimed events took a different course. Internal political squabbles regarding the content of the future constitution rendered it impossible to agree upon a text which would gain broad-based support in a heterogeneous Israeli society, comprised of immigrants coming from diverse cultural backgrounds with strongly-held opposing ideologies - nationalist, socialist and religious. In 1950, it became apparent that MAPAI - the ruling party at the time (an antecedent of the current Israel Labour Party) was unwilling to draft a constitution over the opposition of the religious parties, which formed part of the coalition government. Consequently, the First Knesset adopted a historical compromise - the `Harari Resolution' (named after its sponsor).

The wording of the Harari Resolution represents a political compromise which has enabled the Knesset to evade the obligation articulated in the Declaration of Independence to produce a formal constitution, while at the same time preserving its legal competence to enact one. Although it was questioned in academic circles whether the First Knesset's authority to enact a constitution was validly delegated to subsequent elected Knessets, in practice, the Knesset (from the Third Knesset onwards) enacted a series of eleven basic laws. The first nine Basic Laws enacted until 1992 addressed the structure of the State's political and legal system and the powers of its principal institutions. Some basic laws defined the powers of the legislative, the executive, the president, the judiciary and the State comptroller.

However, until 1992 the basic laws did not, by and large, protect human rights. As a result, the pre-1992 `Israeli constitution' was described as a `body without a soul' - an institutional and political legal framework lacking meaningful safeguarding of substantive values. This state of things changed dramatically in 1992 when the Knesset adopted two new basic laws designed to protect human rights: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation - establishing the constitutional supremacy of several important human rights: the right to life, the right to body integrity, the right to human dignity, the right to property, the right to personal liberty, the right to leave the country and the right of citizens to re-enter it, the right to privacy and the freedom of occupation.

An exception could be found in article 4 of the Basic Law: the Knesset, which pronounce, among other things, the right to equality in voting to the Knesset. This article contain a so-called `entrenchment clause'providing that its provisions shall not be amended except by a special majority vote in the Knesset. In 1969 the Supreme Court has recognized the validity of this entrenchment clause and invalidated legislation conflicting with the entrenchment provision since it was not been adopted by the requisite majority.

The enactment of the 1992 basic laws underlies the claim that Israeli has undergone a `constitutional revolution', transforming it from a parliament-supremacy type democracy (similar to the UK) to a constitutional democracy (like most other Western democracies) where human rights serve as powerful `trumps'. Indeed, the President of the Israeli Supreme Court, Aharon Barak, a main proponent of the `constitutional revolution' theory, has argued that the cumulative effect of these provisions had provided the State of Israel with a de facto constitution, albeit of a limited

While criticism has been levelled against Barak's ideas and the use of the term `constitutional revolution' - citing both substantive and tactical concerns - the Supreme Court accepted in 1995 Barak's approach (in the majority opinion of the Bank Hamizarachi case). Acting thereupon, the Court moved since 1997 to strike down three statutory provisions perceived to conflict with constitutionally protected human rights: a provision mandating practicing investment consultants to take a new licensing exam; a military law provision authorizing the 96-hour detention without judicial review of soldiers suspected of committing felonies; and the grant of a broadcasting license to a number of pirate radio stations - adversely affecting thereby the commercial interests of pre-existing licensees. We became a constitutional democracy. We joined the democratic, enlightened nations in which human rights are awarded a constitutional force, above the regular statutes… We have the central chapter in any written constitution, the subject-matter of which is Human Rights; we have restrictions on the legislative power of the legislator; we have judicial review of statutes which unlawfully infringe upon constitutionally protected human rights; we have a written constitution, to which the Knesset in its capacity as legislator is subject and which cannot alter”).

In the light of these developments, it is now well-established in Israeli law that the enactment of basic laws serves as a substitute for the conclusion of a formal constitution and the practice of judicial review is now a legal, as well as a political reality. Indeed, basic laws have often been described as a `piecemeal constitution' and the eleven basic laws that had been passed until 1992 cover many subjects which are traditionally found in national constitutions (although they provide for only very limited judicial review). However, since 1992 the process of creating a constitution through the enactment of basic laws has come to a halt. While numerous basic law bills had been introduced to the legislative process by the government and by private members of Knesset (MKs), none of them had been adopted. In part, this could be attributed to the opposition of powerful Jewish religious parties in the Knesset to the competence of post` constitutional revolution' courts to strike down legislation protecting religious interests. The immediate `victims' of the growing opposition to the `constitutional revolution' have been three government-sponsored draft basic law bills that had been first introduced to the Knesset in 1993.

In 1993, several months after the passing of the Basic Laws, the Supreme Court stroked down Ministry regulations limiting the importation of non-Kosher meat products into Israel, as they infringed freedom of occupation. The activist approach taken by the Court towards the protection of human rights, at the expense of religious edicts, spurred a prominent member of the Shas religious party, MK Shlomo Benizri, to proclaim that his party would even object to the enactment of the Ten Commandments as basic law, since the interpretation that the secular courts might give to them will render them unacceptable to his constituency. Lilly Galili, “Benizri: We Will Also Oppose the Ten Commandments as Basic Laws” Ha'aretz Online, July 3, 1997 [in Hebrew]. The intense criticism directed against the Meatrael judgment led to the amendment of the Basic Law: Freedom of Occupation and the introduction of an `overriding clause' permitting derogation from the Basic Law by way of explicit legislation backed by an absolute majority of Knesset members (61 out of 120 members of Knesset). All three draft bills have encountered strong political opposition and while, technically they are still `on the table' of the legislator, their prospects of passage in Knesset anytime in the near future are unclear. In any event, the momentum for completing the constitutional project, which existed in the early 1990s, has been lost. The ensuing state of affairs is that Israeli constitutional law offers constitutional protection to a limited number of rights. While some basic civil and political rights are protected (though, some important rights, such as the right to equality have not been explicitly protected by the basic laws), ESR generally do not enjoy similar protection. This is not only unfortunate in terms of the need to protect the latter of group of rights - especially in light of the deteriorating economic and social conditions in Israel. It also establishes, as will be discussed below, a problematic equilibrium between privileged civil and political rights and unprivileged ESR: whenever rights, such as the right to property (which is a protected constitutional right), clash with ESR, such as the right to equitable wage, the latter rights tend to yield. In this respect, the post1992 status of ESR in Israel is worse than it had been before the enactment of the 1992 Basic Laws, when all human rights roughly enjoyed the same degree of protection.

The failure of the Knesset to remedy this legal situation and to pass the remaining draft basic law bills, has led to increasing pressures by activists and academics on the courts - especially on the Supreme Court - to incorporate ESR into Israeli constitutional law by method of legal interpretation and through the development of judge-made law. C. The interpretation of the New Constitutional Rights Once the Supreme Court affirmed in Bank Hamizrachi the position of President Barak regarding the implications of the 1992 basic laws, the constitutional discourse within Israel turned to focus on the interpretation of the two new basic laws. If basic laws endow protected human rights with supreme legal status, then the question of the precise scope of the rights protected by them becomes crucial. The shortness of the explicitly enumerated catalogue of rights and the open ended language of some human rights articulated in the basic laws - most notably, the right to human dignity and the right to human liberty, generated significant pressures upon the Supreme Court to expand, by way of interpretation, the list of protected rights. Influenced no doubt by President Barak's seminal volume on constitutional interpretation, the majority of judges in the Court seem to have embraced the view that the explicitly enumerated human rights can be construed to implicitly protect other human rights, which are sufficiently related to them in substance and purpose. Such rights may include the right to equality, freedom of speech, freedom of contracts.

Barak's treatise on constitutional interpretation is part of a six volume treatise on interpretation also including volumes on interpretation theories, statutory interpretation, contract interpretation, testament interpretation and particular interpretive problems.

Some controversy regarding the precise scope of protection still remains, since the Supreme Court has never actually invalidated Knesset legislation conflicting with one of the non-enumerated rights. However, it is remarkable that even judges embracing a creative approach towards developing the catalogue of basic law rights have largely excluded ESR from this process. One single exception that will be discussed below is the right to minimum standard of living, which has been proclaimed by some Supreme Court Justices. D. A Judicial Bill of Rights It is important to note that basic laws represent only one part of Israel's constitutional scheme and that notable jurisprudence concerning human rights protection was generated by Supreme Court even before 1992. In fact, promotion of human rights by Supreme Court judgments could be viewed as a reaction on the part of the Court to the prolonged inaction on the part of the Knesset's in promoting human rights through enacting basic laws.

Supreme Court judgments constitute binding precedents under the Israeli legal system.

(“In Israeli law, human rights have been protected almost exclusively by judge-made law. Indeed, almost uniquely in the world, Israeli courts have fashioned the law of human rights out of whole cloth”). In its pre-1992 case law, the Supreme Court recognized and enforced several important human rights such as the right to personal liberty; freedom of occupation; freedom of speech; freedom of religion and conscience; the right to equality; and certain procedural due process rights (normally referred to in Israeli jurisprudence as `rules of natural justice'). These judge-made rights have sometimes been referred to as `the Israeli judicial bill of rights' or `fundamental principles of the Israeli legal system'. Having no constitutional text to unequivocally rely upon, the Court supported its findings that such rights exist under the Israeli legal system through reference to principles derived from the democratic nature of the State, from its `national spirit' and from the `social consensus', all reflected in the State's Declaration of Independence and in the history of Israel and the Jewish people. In reality, it may be asserted that these judge-made human rights had been largely derived from natural law.

The Israeli Declaration of independence states: “The State of Israel … will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holly Places of all religions; and it will be faithful to the principles of the Charter of the United Nations”.

(“The system of laws under which the political institutions … have been established and function are witness to the fact that this is indeed a State founded on democracy. Moreover, the matters set forth in the declaration of Independence The implications of recognizing human rights as part of the Israeli judicial bill of rights were twofold: (a) statutory interpretation - an interpretive presumption was developed that legislation should be construed, as far as possible, as consistent with recognized human rights; (b) limitation of administrative power - administrative law presumed that State officials were not authorized to violate recognized human rights, unless explicit and contrary authorizing language in Knesset legislation could be shown. This last proposition also implied that secondary legislation conflicting with recognized human rights was invalid (unless there was explicit authorization in primary legislation to override human rights). Powerful as the Israeli judicial bill of rights doctrine might be, two caveats are obvious. First, the doctrine never purported to authorize the courts to invalidate Knesset legislation. Hence, at best, it gave limited legal protection to human rights. Second, the catalogue of recognized rights - especially as regards basing the State `on the foundation of freedom` and securing freedom of conscience - mean that Israel is a freedom-loving country. It is true that the Declaration `does not include any constitutional laying down in fact any rule regarding the maintaining or repeal of any ordinances or laws` … but in so far as it `expresses the vision of the people and its faith, we are bound to pay attention to the matters set forth therein when we come to interpret and give meaning to the laws of the State”).

In fact, an analogy could be drawn between the powers of the Israeli judiciary under the judicial bill of rights doctrine and the powers of the English judiciary under the Human Rights Act, 1998 to construe legislation and to review administrative acts. The main difference between the two systems of human rights protection is that Israeli judges are not competent to issue a declaration of incompatibility like their English counterparts.

However Justice Barak (as he was then) has opined in obiter dicta that in extreme circumstances the Court could conceivably invalidate legislation which is inconsistent with fundamental principles of the legal system. Notably it did not include any ESR (although nothing in the Israeli judicial bill of rights doctrine precluded their development). As a result, an effective possibility to compensate for the poor level of protection for ESR under the basic laws had been neglected. III. The Exclusion of Social Rights from the Israeli Constitutional Discourse The exclusion of ESR from all three avenue of constitutional evolution - enactment of basic laws, flexible interpretation of basic laws and the judicial bill of right - amount to exclusion of ESR from the official Israeli constitutional law rights discourse. Before reviewing the reasons for this state of things, it is perhaps worthwhile to note the irony of the matter: Israel was established by predominantly socialist elites. The Zionistic ideology embraced by the `founding fathers' emphasized the centrality of the `Jewish labourer' and supported co-operative and mutual solidarity projects such as the Kibbutzim, cooperative villages and the General Federation of Labourers. This vision led in the first decades following Israel's independence to the enactment of numerous social laws86 introducing, inter alia, an impressive social security apparatus, free primary and secondary education and worker protection laws. However, the socialist character of the State in Israel's formative years did not lead to constitutionalisation of ESR.

As was already mentioned the first Knesset explored the possibility of drafting a national constitution, and eventually adopted the `Harari Resolution', which deferred the task to the future. It is notable that the Knesset Committee for Constitution, Legislation and Law (CLL Committee), in which constitutional discussions took place, was presented with a draft constitution, which was prepared by Dr. Yehuda Pinhas Cohen, at the request of the Jewish Agency. The Cohen draft constitution contained reference to a number of ESR - the right to social justice and social security, the right to work, the right to adequate remuneration, the right to adequate standards of living, workers' right to associate and strike, the right to health, the right to education and the right to equality. Interestingly enough, Cohen believed that the economic, social and cultural rights enumerated in the draft were minimalist in their approach, compared to more aggressive socialist agendas prevalent at that time, so to enable the formation of the greatest possible consensus around the constitution. While the draft constitution was never adopted, its language demonstrates the initial commitment of the Israeli establishment to the promotion of ESR and highlights the dramatic decline in their importance in later years. Subsequent attempts to propose a comprehensive constitution in 1964.

In 1991, the Ministry of Justice promulgated a new draft Basic Law: Fundamental Human Rights which was sent to the Knesset CLL Committee. This draft did not initially include reference to ESR (nor to the right to equality). However, the Ministry, bowing to considerable pressure from labour unions and the academia, has decided to revise the proposed legislation and to include a provision on social rights in it.Eventually, after sensing opposition to some key provisions, the Ministry decided to break down the proposed legislation to five separate basic laws, which were designed to gradually pass the legislative process. Two basic laws were adopted in 1992. The other three basic laws, including draft Basic Law: Social Rights are still pending, and must overcome resistance by influential religious parties and other politicians who are hostile to the entire basic laws project. Since 1992 a number of attempts have been made by the government, as well as by private MKs, to reinvigorate the legislative process and to press for the adoption of Basic Law: Social Rights. Such drafts have varied in their language and in the level of protection they afforded to ESR. For example, a 1994 government draft bill provided that `[e]very resident has the right to satisfaction of his basic needs for subsistence in human dignity, including in the fields of labour, wage and labour conditions, in the fields of education, schooling and learning, and in the fields of health and social welfare; this rights will be implemented or regulated by governmental authorities in accordance to law, and in the light of the State's economic capabilities as determined by the government.

Including in the fields of labour, education, health, social welfare and environmental protection. All as determined in law, or according to law or governmental decisions.' Private draft bills have been, as a rule, more generous approach towards ESR, embracing more specific and right-oriented language. However, their prospects of passage are slim given the government's opposition to their budgetary implications. In sum, one can identify both parliamentary opposition to the basic laws project and erosion in the government's commitment to ESR (which perhaps correlates to the declining economic fortunes of the country). This combination of factors does not bode well for the prompt passage of a strongly-worded basic law enshrining ESR. B. the Failure to Incorporate Economic and Social Rights in the Existing Basic Laws through Judicial Interpretation One of the solutions to the problem of the limited list of human rights protected by the 1992 basic laws has been judicial creativity in interpreting the two instruments. Such judicial activism had been based on the proposition, forcefully advanced by President Barak that the basic laws can be read in a way that will encompass a number of unspecified human rights. The open-ended language used by the legislator - especially in resorting to terms such as `human dignity' and `human liberty' - were in fact viewed as an invitation to the courts to actively protect a variety human rights which contribute to the attainment of the broad constitutional objectives. Barak even argued that there is no legal impediment to incorporate into the new basic laws human rights that were specified in non-adopted draft basic laws.

“It is true that the proposed bills pending adoption in the Knesset Acting upon this proposition Barak developed a three-model theory for interpreting the 1992 basic laws - drawing three different `circles of protection'. A restrictive model would only enable the protection of human rights explicitly specified in the basic laws; an intermediate model would also include negative human rights, directly linked to specified human rights and a bare minimum of indispensable positive human rights; a third, and final, expansive model would encompass all human rights - negative and positive - that have bearings upon the specified rights. Barak has taken the position that the intermediate model is the appropriate one, as it best comports with prevalent social conventions regarding the scope of constitutional protection. This model encompasses the right to equality, as well as other basic civil and political rights - freedom of expression, the prohibition against torture, freedom of movement, humane conditions of detainment, freedom of religion, freedom of contain a long list of rights, including equality, freedom of speech and movement and other freedoms. This does not indicate that human dignity does not encompass these rights. Once these rights are legislated, they will stand on their own feet as particular rights. Until they have been legislated, they are protected under the principle of human dignity. The process of fragmentation by virtue of legislative convenience cannot dictate constitutional theory. The process of `atomization' of human rights legislation - namely, the breaking up of the civil rights constitution into a number of basic laws - does not show a subjective belief on the part of the drafter of the constitution to limit the principle of human dignity. Even if they so believed, we, the law's interpreters, should not attribute to it decisive weight. The contents of legal concepts ought to be determined in accordance with society's conceptions at the time of the interpretation, and not in the light of the various mindsets of the members of the constitutive body at the time the text was drafted. One can but wonder whether Barak's rhetoric regarding the temporal dynamics of statutory interpretation is convincing given the fact that the text was written only two years after the adoption of the 1992 basic laws. It is questionable whether dramatic changes in social conditions can be identified during such a short period of time.

It encompasses however only two positive rights - the right to equality and the entailing obligations it imposes on the government to take action designed to remove inequalities, and the right to minimal subsistence conditions. The proposition that the right to human dignity encompasses a minimal standard of living component had been affirmed in recent Supreme Court judgments. In the most famous of these decisions - the Gamzu case, President Barak held that laws governing the execution of judgments must be applied in a manner which does not deprive the debtor of assets required for his basic subsistence. More generally Barak held that: “Human dignity encompasses, as we have seen, protection of minimal human subsistence… A man living on the streets and is without housing, is a man whose human dignity had been impaired; a man starving for food is a man whose human dignity had been impaired; A man deprived of access to elementary medical treatment is a man whose human dignity had been impaired; a man compelled to live in humiliating material conditions is a man whose human dignity had been impaired”.

The position that the right of equality is protected by Basic Law is however controversial.

It is notable however that the final outcome in Gamzu - the grant of exemption to an alimony payment defaulter from repaying his financial obligations to his divorcee and daughter - is problematic from an ESR perspective.

In science of the constitutional law there is clear developing the tendency that notion of democracy in Russia should be interpreted in take-off of the Constitution, and the Constitution should be interpreted through the prism of the priori theoretical beliefs about democracy, established outside the Fundamental Law. Thus in the event of discrepancy between them there should be corrected not the doctrine, but “constitutionality” of the Constitution is put under doubt. Exactly this existed in the process of destructive critics of the former Constitution of the Russian Federation, which became the victim torn away from real practice of beliefs about ideal organization of authorities in the Russian Federation, to which it did not correspond to and therefore was declared "non legitimate", and at present such critiques reflexes on the working Fundamental Law.

Meanwhile methodology of the legal cognition of democracy excludes its explanation on the bases of the abstract presentations, established outside the Constitution of the Russian Federation, in fact, with one clause: democracy in Russia in its western European "measurement" was the result of its not naturally-history evolution, but social choice, not prepared by the historical development of the society. That is why it is not capable immediately to justify the entrusted hopes on it. And the result of such disillusionment can be either relapse of the past, and in this case science of the constitutional law threatens the danger to change into scholastic system of notions, torn away from realities of life and changes, happening in state-legal realities, in public legal consciences, or stubborn and consequent statement of institutes of democracy in all spheres of life of the society.

In the later case - heavy and not always grateful work, whose difficulty is aggravated by the fact that democracy, as it is fixed in the Constitution, from the point of view of the main way of development of Russia in the foreseeable future there is no alternative? And no particularities of historical development of the country, rendering undoubted influence on its state-legal features, can serve as the reference for ignoring objective regularities of social-political development, confirmed by experience not only of other states, but by our own history. The sociological fact is that exactly ideological and political monism, constitutionally institutionalized and supported by all arsenal of the powerful influence on society, have deprived it of ability to self regulation, and the external regulator to society on behalf of the ruling party have turned out to be enabled to find out from the crisis, in which it turned out to appear. As a result in 1991 the great state stopped its existence, but the society turned out to be destroyed.

Pluralistic democracy as the condition of social self regulation and evolutionary development of the society

The Constitution proclaims Russia as democratic federative legal state with the republican form of rule, in which a person, his rights and freedoms shall be the supreme value, and the multinational people shall be the bearer of the sovereignty and the single source of power. Exactly democracy as the political form of existence of the multinational people of Russia shall be the fundamental principle of the Constitution. It means that the problem of democracy is connected with the whole set of public relations and the whole system of the constitutional law, and it becomes one of the guarantees of the onward development of the civilized process in its ordered and evolutionary form.

Thus the Fundamental Law does not frequently apply their term "democracy". Moreover it does not possess any other notion, which contents were so little determined and which was subjected to such different interpretations.

The term "democracy" in the working Constitution of the Russian Federation is used twice - in the preamble and in Article 1: if in the preamble it said about "rebirth of sovereign statehood of Russia and confirmation of firmness of its democratic base", Article 1 of the Constitution of the Russian Federation defines Russia as the democratic state. And it means that exactly this principle occupies the dominant position in the whole system of principles, forming the bases of the constitutional system of the Russian Federation, and bearers the universal nature since at greater or smaller degree covers with its contents all other principles and is present in each position of the Constitution.

Not making the analysis of multiple concept of democracy, quite often discordant to each other, we specify that the revealing of its actually constitutional contents both doctrine, and practice of law realization, on the one hand, can not be torn away from the concrete development of democracy in the Constitution. The dominant importance, especially for proceedings of law enforcement, should not have presentations, established before or outside of the Constitution, but normative expression democracy in the Constitution, bearing in mind general principles of the law, as they are reflected in the Fundamental Law. On the other hand, in the Constitution democracy is presented not as completed model, but in their general features as the necessary base for regulation of organization and functioning of the constitutional system. The contents of this principle are enriched in the process of revealing of the potential of the Constitution in the process of developing of domestic constitutional-legal doctrine and practice of constitutional control. Grounding on these bases and on more than 370 decisions of the Constitutional Court of the Russian Federation, which contain references to Article 1 of the Constitution and in which there is analyzed its normative contents, it is possible to reveal the following features of the constitutional standardization of democracy in the Fundamental Law of the Russian Federation. First of all, this notion is applied by the Fundamental Law for characterizing of the created in Russia state ( statehood) and has universal in the sense of incidence of all aspects of its activity nature. Hereunder there is defined the form of the state, including the three sides, - the form of the rule, the form of state structure and the political mode. And since the Constitution does not give the definitional determination of the contents, put in this term and specified by it notion, it is removed from the whole text of the Constitution, first of all, the fundamentals of the constitutional system and chapters about rights and freedoms of a person and a citizen, and the following positions of the Constitution, rendering the concrete principles of the constitutional system, including organization public authorities, order of its formation, etc..

In particular, Article 1 of the Constitution specially specifies two aspects of the form of the Russian state - the form of the rule (the republic) and the form of the state structure (the federation) and, consequently, the notification that the Russian Federation is the democratic state, and there is the notification to its political mode. Thus, if in the preamble of the Constitution, it is said about democracy as the feature of political life of the country and political system of the society Article 1 mainly says about democratic political mode exactly as the phenomena of the state life, as the set of ways of formation and functioning of the state power and its institutes.

In other words, the Constitution fixes democracy not in the sense of supremacy of people, whose bases could be its unanimous will; but the question is the rational organization of the political process and provision of political unity of people in conditions of multiparty membership and pluralism. Exactly such understanding, based on refusal of interpretation of democracy as supremacy of people in the sense of identical democracy, i.e. coincidence of controlling and controlled, has found the expression in the Resolution of the Constitutional Court of the Russian Federation from July 11, 2003. No.10-П About the verification of constitutionality of the Federal Constitutional Law "About entry of changes and additions in the Federal Constitutional Law "About referendum of the Russian Federation".

We believe that democracy comprises the structure of the state. On behalf of the people there acts the federal parliament, and the head of the state is elected directly by the people. At the same time, the Constitution provides the forms of direct democracy, first of all, referendum and free election. Fixing in the Constitution of the democratic state means expression of responsibility of the state on provision of proclaimed in the Constitutions of the rights and freedoms. It determines the contents of the state activity. For the democratic state in the considered aspect, as it is fixed in the Constitution, there are typical, at least, the following features and principles: the principle of political unity of general compulsory will, formed as a result of competitiveness of a number of individual wills, from which it organically follows the principle of majority; direct political will of people at free democratic elections and referendum; freedom and publicity of political process, which are assumed since democracy has pluralistic nature, protection of minority.

Thus one of the main features of the democratic state is that the state power in it is limited. We do not mean objective insufficiency in any state of economic, social or geopolitical factors, but establishment by the Constitution and working legislation of limits of state authorities, which cannot be overcome in legal way. The question is in responsibility of all state authorities and their officials to observe the Constitution and to act in compatible with the law way. Thus the restriction of the state interference in the sphere of the individual autonomy or political activity of a person is realized by means of recognized for a person and a citizen inalienable rights and freedoms, which can not be violated or arbitrarily limited by the state. Exactly due to these rights - economic, social and cultural, as well as civil and political - the state power is not only limited on the spheres of its manifestation and ways of influence, but becomes sublawful, and democracy has personal measurement.