THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; will foster the development of the country for the benefit of all its inhabitants; it 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 Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
It is important to note that the signatories were representatives of all major Jewish groups present under the British mandate in Ultra-orthodox, national-religious, secular left and secular right and both socialist and non-socialist. In other words, the commitment to the aforementioned universal principles of human rights was not accepted by a small segment of the Jewish population but rather, by the majority, more than eight months before the first national elections took place. Basic norms may or may not be enacted into abiding laws but their existence has an important function in the political behavior of citizens and political elites, particularly in the way laws are interpreted and how regulations are executed.
Another noteworthy observation about the relation between the two declarations is the frequent reference in the Declaration of Independence to international standards, norms and bodies. Such a strong emphasis on international bodies and legal instruments is unparalleled in other declarations of independence. No less significant were the challenges of applying the universal principles and ideals enumerated in the Universal Declaration on Human Rights to all Israeli citizens, Jews and Arabs alike, given the insolvency of the new state and the deep suspicion that existed between the Jewish and Arab citizens of Israel.
Although there would be many points of tension between human rights and other values and interests in the political history of Israel, the overall commitment to these norms remained strong throughout the history of the state. Meanwhile, the members of the newly-formed Knesset could not agree on the content of a full-fledged constitution due to conflicts of interest and insufficient will. Given the fact that the first basic law was enacted a decade after independence and that the first two basic laws pertaining to human rights were passed as late as , the formal legal documents involving human rights in Israel were, for many decades, underdeveloped and without special legal status in Knesset legislation.
Although human rights were protected in judicial precedents see below , these precedents did not have the status of a law.
Oxford Constitutional Law: Supreme Court of Israel (Beit Ha Mishpat Ha Elyon)
Therefore, the Knesset had the power to legislate laws inconsistent with human rights, at least until Put simply, until human rights were not entrenched nor protected by laws and the Knesset could have theoretically legislated laws that hampered human rights without stepping outside the bounds of Israeli law.
The lack of a formal constitution does not mean that Israel did not have legal documents defining the powers of the branches of government and the relationship between the citizens and the state. Much of the legal system that existed during the British Mandate was transplanted into the Israeli system immediately after the Declaration of Independence to ensure legal continuity and a functioning legal framework in the new state.
On February 16, , the first Knesset enacted its first law, the Transition Law, which defined the powers and functions of the Knesset, the Government and the President. Nevertheless, the Transition Law had the legal status of only a regular law and it could have been changed or canceled by a simple majority in the Knesset. Similarly, human rights were not yet enshrined in special legislation. Furthermore, due to the declaration of a state of emergency, the government was entrusted with extensive powers to issue emergency regulations that could have been used to override or suspend laws and trump human rights.
Furthermore, Israel was forced to declare a state of emergency upon its independence and never canceled it. It has been in a state of war and hostility with its surrounding Arab neighbors for several decades. It also has a significant Arab minority consisting of twenty percent of the total population and several deep social and political cleavages within the Jewish community, to mention only some of the main challenges. One reason that democracy and human rights were largely protected is due to the importance of basic norms as guiding principles of political behavior for the public and political elite alike.
Not all these norms have been written into abiding laws and some took a long time to find explicit expression in legislation, but the commitment to these norms by a majority of Israeli society preceded the state of Israel and its legal system. The basic norms of adherence to democratic institutions and a democratic process were part and parcel of Zionist institutions and practices since the first Zionist Congress in Basel, Switzerland in The basic norm of equality, which is strongly emphasized in the Declaration of Independence, was rooted in the pioneering ethos and practices of the early Jewish settlers of the late 19 th century.
As core elements of political culture, basic norms may often be more important to understanding a political system, including its human rights record, than the dry letter of the law. Many countries have elaborate constitutions with articles enumerating various rights, yet violations of human rights are widespread within them.
Even a long-established and vibrant democratic country like the United States has seen the disenfranchisement of African Americans under the Jim Crow system in the South as late as the s. The denial of basic participation rights to African Americans was due to a political sub-culture that was prevalent in the South and that did not see nor treat African Americans as equals, despite the illegality of these practices under the Fourteenth Amendment of the Constitution.
Such anti-democratic acts were not attempted, however. Arab citizens of Israel could vote members into the Knesset from the very first elections and their votes were courted by several Zionist and non-Zionist parties.
The Israeli Supreme Court and the Human Rights Revolution
Several Arab parties that were affiliated with the dominant party Mapai remained a formal part of its government coalitions until , notwithstanding the Military Administration that was placed on many Israeli Arabs until Basic norms were important for the protection of democracy and human rights in the sense that they served as a compass of what was and was not allowed in the absence of a more detailed legal-normative map.
As will be shown below, these basic norms were also often refereed to and relied upon in important judicial decisions. Whereas basic norms were invaluable to the protection of human rights in its early decades, basic norms and political culture alone did not advance and develop a human rights regime in Israel.
Instruments for Human Rights Protection until The Supreme Court in Israel has two functions. It hears appeals against the decisions of the District Courts and as such it serves as the highest Appellate Court. Until , however, there was no law that could be regarded as a human rights charter. Despite its importance as a common reference point in legal interpretation, the Declaration of Independence itself does not have the status of a law.
Hence, for many years, the courts in Israel had few formal legal tools with which to protect human rights, let alone strike down Knesset legislation. Moreover, judges were, for the most part, very cautious in the language of their rulings and showed restraint in dealing with Knesset legislation and government acts, including petitions concerning human rights. Second, the court dismissed petitions on the grounds of their justiciability , namely, the degree to which a matter was considered to be inside or outside the scope of issues which the court considered itself authorized to adjudicate see Hofnung , The narrow, cautious and formalistic interpretations that judges applied to these two legal criteria were self-imposed constraints of the courts in the early decades.
These legal instruments became part of a growing legal arsenal with which the courts protected human rights. A brief discussion of the Supreme Court functions and legal tools is relevant in this context. An important function of the Supreme Court is the direct manner in which citizens can appeal to it as the High Court of Justice. Contrary to the United States court system in which pending appeals concerning human rights may take months or years before reaching a decision in the Supreme Court, a plaintiff in Israel can receive an immediate relief in burning matters of human rights.
For instance, in a convict petitioned the High Court of Justice to prevent prison authorities from forcing him to receive an enema in order to determine whether he was hiding drugs inside his body. Similar real-time intervention often involves political matters such as the legality of army actions or government decisions. In such situations, the declaration of the law by the Supreme Court is also judicial law-making. The law that existed prior to a judicial determination is not the same as that which existed subsequent to it.
Before a judicial determination, the statute or basic law spoke with a number of voices.
After a judicial determination, the statute or basic law speaks with a single voice. The transition from the uncertainty of multiple possibilities, to the certainty existing in one solution, involves not only a declaration of law, but also creation of law. The law-making process that Justice Barak mentions is essentially a judicial precedent or case law. The decision of the Supreme Court becomes a legal precedent that all courts must consider thereafter when dealing with similar cases.
This precedent also affects the other branches of government in the sense that the Supreme Court rulings are binding to these branches as well.
Over the years, the Israeli Supreme Court has developed human rights protections through these judicial precedents. Despite, or perhaps because of, the underdeveloped constitutional system in Israel, the Supreme Court gradually established and developed these precedents as the main legal body that protects human rights in the absence of a constitution and in the absence of basic laws involving human rights until The constraints that judges imposed on themselves in the early decades began to weaken when more activist Justices were nominated to the Supreme Court in the late s and s, notably under former presidents of the Supreme Court, Justice Meir Shamgar and Justice Aaron Barak Several important changes occurred: First, the Supreme Court significantly broadened the scope of the standing principle; opening the doors of the courts to lawsuits from petitioners not personally injured, from individuals representing a collective of people and from non-Israeli citizens.
Second, the Supreme Court broadened the scope of the justiciability principle and agreed to adjudicate legal-political matters and rights-claims that were previously deliberately avoided. This transition from narrow and formalistic criteria to broader and more substantive criteria was accomplished , among other things, by giving new meaning and more extensive use to the doctrine of reasonableness , which originated in English administrative law.
According to this doctrine, a state action can be determined void if the court deems the motivation or outcome of the action unreasonable. This flexible criterion was another powerful tool that the Supreme Court used to exert a degree of judicial review over government and Knesset actions, despite no explicit authority in the law to do so. These were the legal tools that the Supreme Court developed and utilized to protect human rights in the constitutional apparatus and the basic laws that were in place until After realizing that an extensive list of human rights would not pass in the prevailing political stalemate, Rubenstein advanced the idea of passing human rights not in a single basic law but in a series of four basic laws; each covering a cluster of human rights.
In this way, and owing to the loss of right-wing party discipline in the last moths of the Twelfth Knesset, Rubinstein managed to pass two of his four basic laws. The rights enumerated in the two basic laws are relatively narrow in comparison to most national and international human rights instruments.
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The two basic laws also include a stability clause that protects them from emergency regulations. On the other hand, the conditions of restricting rights in the basic laws are phrased in a language that gives the Supreme Court considerable discretion in determining the conditions and the proportionality framework required for human rights restriction.
The passage of these basic laws had far reaching effects on the human rights regime in Israel. Despite the rather narrow meaning that the legislator ascribed to these two basic laws, several Justices in the Supreme Court and especially, its president, Justice Aaron Barak , identified the legal potential of the new legislation. The Supreme Court cemented this reading of the basic laws in a ruling.
In this new constitutional conception, human rights were no longer protected only against administrative actions through the judicial precedents that had been developed over the years, but also against legislation that may have contradicted human rights in the new basic laws. The rather unusual phrasing of this article originated in a hasty and confused legislative process in which an explicit resolution to remove the term dignity from that article was not implemented in the final draft of the law.
The result was that Israel became one of only three countries in the world to have a right to human dignity; the other two being Hungary and South Africa Shultziner As a result of the assumptions that human dignity is indeed a discrete human right, there has been a legal debate as to whether human rights that were not mentioned in the basic law can be derived from the right to human dignity. Justice Dalia Dorner and others, however, have a different approach, maintaining that additional human rights cannot be derived from or receive special constitutional standing in the right to human dignity.
According to Justice Dorner, other human rights are protected only when encroachment on these rights involves humiliation. The right to human dignity in Israel has had mixed results. On one hand, the scope and potential of human rights protection has certainly increased. On the other hand, there have been several outcomes that might adversely effect human rights protection in Israel. First, religious-conservative and secular-liberal Justices have disagreed about the definition of the right to human dignity and its implications in the actual legal cases brought before them Shultziner Backlash by the religious parties and by other right-wing circles began in the s, including a major demonstration of more than , ultra-orthodox Jews against the Supreme Court in Friedmann could not complete all of his initiatives due to the replacement of the Kadima-led government with a Likud-led government in , efforts are still being made to restrict the power of the Supreme Court.
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Despite this backlash against the Supreme Court, a fairly developed framework of human rights protection has been established in Israel. From the early decades when rights protection was confined to basic norms and judicial precedents, the system matured and received a legislative boost in the form of the two basic laws. Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
This addition to the laws, however, had no adverse effect on human rights protection in Israel. The legislature has neither modified the two basic laws since nor reversed the human rights revolution of The sections above outline general issues pertaining to human rights in the changing context of the Israeli constitutional system. In the following sections, two topics involving human rights protection in Israel will be discussed: Democratic rights, and religious and human rights.