DEMOCRACY, DISCRIMINATION, & NO CONSTITUTION

by David A. Kirshbaum

© Israel Law Resource Center, December, 2006

WHAT IS DEMOCRACY?

Is this a democracy – where one group of citizens is given special priviledges and benefits over all other citizens based just on their religion?

Can a country truly be called a democracy if candidates cannot run for office if they protest the above special treatment for one religion over all others?

Can democratic ideals even survive in a country where there is no Constitution or Bill of Rights to guide or control laws passed by the country’s Parliament, and the Supreme Court of that country is also not given powers of judicial review over the law-making activities of that Parliament?

Can this really be a democracy – where the Parliament, which is elected by the people – but only by the people of one point of view toward the basic rights of the citizens of this country – then passes laws making its own law-making absolute and above reproach – rightfully call itself a democracy?

Could this country really be Israel?

And what role has this approach to democracy played in the conflict that has rocked and tortured Israel since its inception in 1948?

POLITICAL CONFLICTS CHALLENGING THE NEW COUNTRY

Founding of the State of Israel was a very challenging task. There were many conflicting perspectives and needs. The main ones were:

• (1) those who wanted a secular state vs. those who wanted a state based on Jewish religious law,
• (2) how to find a common ground between Israel's origins in radical socialist labor movements from Europe and the more recent waves of immigrants who are more focused on capitalist values and priorities,
• (3) how to develop a democracy with a respect for individual rights while being in an extended declared state of emergency, and often being in a state at war, and
• (4) how to relate as a democracy to an internal minority population that the majority in Israel associate with the enemies who surround them.

Despite conflicts like these, the government of Israel was able to develop at its inception a "Declaration of the Establishment of the State of Israel" which all political groups agreed upon. This declaration declared the creation of the State of Israel, gave some historical background, and described some core values of the new state (Elazar, 1993), including "THE STATE OF ISRAEL … will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex" (Laws of the State of Israel, 1948).

But the new Provisional Government was not able to develop a Constitution or Bill of Rights that all the political factions could agree with (Elazar, 1993).

Developing a new democratic country from scratch without a Constitution is very difficult because a written Constitution represents the long-range goals and values of the people and thus serves as a guide and control over the law-making parliament which more represents the immediate impulses and passions of the people. Thus in the United States, the founding fathers gave the Supreme Court the power of judicial review over the U.S. Congress (parliament). And this was part of a 3-way balance between the 3 main branches of the U.S. Government - the Congress (Parliament or Legislative Branch), the Judicial Branch, and the Executive Branch (the President, who is the Commander in Chief of the Armed Forces) (Davidson, 2003).

The reasoning behind this 3-way balance is because it is thought that each branch of the government represents a different aspect of the preferences and feelings of the electorate.

• LEGISLATIVE BRANCH: The Congress of the United States is supposed to represent the most immediate concerns and passions of the American people.
• JUDICIAL BRANCH: The courts represent the long-term ideals and values of the people.
• EXECUTIVE BRANCH: The President as Commander in Chief of the Armed Forces represents something in between. He is elected for his vision of what America should be in both the short and the long range, and as the Commander in Chief he is charged with leading enforcement of federal laws and policies.

The founding fathers of the United States believed that the more immediate passions of the people represented by Congress should be balanced and tempered by the more long-range view of the judges of the Supreme Court (who were not subject to the pressures of elections and political dealings) and the President (who was elected for his overall vision and leadership ability).

Finally David Ben-Gurion, who many consider to be the Founding Father of the State of Israel, got the many parties of Israel's politics to agree to pass a series of separate "Basic Laws", one at a time, each of which would define the basic structuring of a different area of the Israel government, and would be changeable over time, but only by special measures (Elazar, 1993). The result has been the passage of 11 Basic Laws since 1950, which overtime have evolved into a powerful constitutional document as is found in true democracies:

• Basic Law: The Knesset (1958)
• Basic Law: Israel Lands (1960)
• Basic Law: President of the State (1964)
• Basic Law: The Government (1968)
• Basic Law: The State Economy (1975)
• Basic Law: The Israel Defence Forces (1976)
• Basic Law: Jerusalem (1980)
• Basic Law: The Judiciary (1984)
• Basic Law: The State Comptroller (1988)
• Basic Law: Human Dignity and Liberty (1992)
• Basic Law: Freedom of Occupation (1992) (State of Israel Official Website, 1998)

Two other important documents guiding the development of the new state are the "Declaration of the Establishment of the State of Israel", and the covenant between the Israeli government and the non-government organizations that were instrumental in bringing Jews to Israel, and in starting the State of Israel (which gives these organizations special positions of power in the government, and special protections) (World Zionist Organization - Jewish Agency (Status) Law (1952)) (Elazar, 1993).

A PARLIAMENTARY-CENTERED GOVERNMENT

But the Knesset still did not include in these Basic Laws the power of judicial review over its own law-making activities, and the Supreme Court itself supported this (Kretzmer, 1990), until 1992 (Elazar, 1993).

In fact, prior to 1992, the Israeli Supreme Court ruled on three separate occasions that these Basic Laws could not be used to overrule laws passed by the Knesset (Negev v. State of Israel (1973) 28 PD I 640; Kaniel v. Minister of Justice (1973) 27 PD I 794; and Ressler v. Chairman of Central Elections Knesset Committee (1977) 31 PD II 556) (Kretzmer, 1990).

And in 1948, the year of the establishment of the State of Israel, the Supreme Court ruled that the "Declaration of the Establishment of the State of Israel" also did not have the status of laws passed by the Knesset (Zeev v. Gubernik (1948) 1 PD 85), and therefore also could not be used to pass judgement over laws passed by the Knesset either (Kretzmer, 1990).

The Knesset wrote into the laws 'entrenched clauses' which gave the Basic Laws special status - protection from being amended or overturned easily, but these clauses were not of the nature that they could affect major issues such as civil rights. They could only protect the Basic Laws from being overwritten by ordinary laws or emergency regulations passed by the Knesset (Kretzmer, 1990). See Appendix I for a complete list of the entrenched clauses found in the Basic Laws of Israel.

In addition, the Knesset made it clear in its Basic Law: The Judiciary (1984) that the duties of the courts did not include judicial review of the laws passed by the Knesset. The duties listed included hearing appeals of lower courts, and the Supreme Court had the additional duty as the High Court of Justice to hear individual cases where the claim involved infringement of justice (please see Appendix II for a reprint of the section of the law listing the duties of the courts), but clearly second-guessing the Knesset was not one of them (State of Israel Official Website, 1998).

These law and court rulings reflected the belief in the Israeli government that dominated at that time that a true democracy was dominated by the elected parliament. This contrasted with other democratic systems like the American system where the government consisted of a balance between the parliament (the Congress), and the judicial branch, and the executive branch.

But overtime these ideas have also been adopted in Israel by the new generation of leaders, and thus the Israeli Supreme Court has become more empowered to oversee laws passed by the Knesset (Kretzmer, 2002).

THUS COMES A BILL OF RIGHTS & JUDICIAL REVIEW

Under the glare of international criticism, and the insights and ideals of a new generation of legal professionals, judicial review and developing a Bill of Rights has gained higher priority.

Thus, in the early 1990's, the Knesset passed two Basic Laws which protected a range of civil rights for Israeli citizens, and which had built into them the power to be used for judicial review of subsequent laws passed by the Knesset. For example, in section 8 of the Basic Law: Human Dignity and Liberty (1992), and section 4 of the Basic Law: Freedom of Occupation (1992), they both say, "there shall be no violation of (these freedoms) except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required" (Jabareen, 1998; State of Israel Official Website, 1998).

The rights defined and protected in these two Basic Laws are:

• Basic Law: Human Dignity and Liberty (1992) (this section is actually reprinted in Appendix III) -
  • freedom from violation of life, body, dignity, or property
  • right to protection of their life, body or dignity
  • freedom from imprisonment, arrest, extradition or otherwise
  • freedom to leave and reenter Israel
  • right to protection of privacy and intimacy
  • right to protection from entry into, or search of property without permission
  • right to confidentiality of conversation, writings, and records
• Basic Law: Freedom of Occupation (1992) --
  • freedom of choice over one’s occupation (State of Israel Official Website, 1998).

Then, in 1995, the Supreme Court of Israel gave itself the power of judicial review over laws passed by the Knesset in the case, Mizrahi Bank v. Migdal Cooperative Village (1995 49 (4) PD 221 (Israel Ministry of Foreign Affairs, 1998; Kretzmer, 2002).

In addition, equal rights for women (Women's Equal Rights Law (1951)) had already been passed, and the disabled (Equal Rights for Disabled People (1998)) was passed a few years later. And a series of rulings and laws making discrimination against Gays and Lesbians illegal was also developed (Jabareen, 1998).

CONFLICT - A DEMOCRACY OR AN APARTHEID STATE

Even though this list of civil rights for all citizens of Israel, and the legal guarantee of equality for women, homosexuals and the disabled is very exciting and heralds a "constitutional revolution in the State of Israel", there is still no right guaranteed by law of complete equality for all Israeli citizens (Jabareen, 1998) as listed in the "Declaration of the Establishment of the State of Israel", to "ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex" - no equal freedom of choice, access, and protection for all citizens of the State of Israel irregardless of their nationality, religion, race, etc.(Laws of the State of Israel, 1948) .

Thus the basic problem still remains - discrimination is still legal in Israel, and the courts still have no legal basis to fight it.

For example - 99% of Arabs are not allowed to enter military service in Israel. The reason given is national security - so that Arabs would not have to be stuck fighting Arabs, and also so that Arabs would not be in sensitive military positions during wars against other Arabs. But the real discrimination comes when benefits are rewarded throughout Israeli society and economy to military veterans only. This ends up being a society-wide device to discriminate against Arabs in housing, finance, education, medical services, etc., that extends far beyond the understandable desire of a society to reward their veterans for their service to their country (Kretzmer, 1990; Jabareen, 1998). Ironically, the legal basis of keeping Arabs from serving in the military (found in Article 5 of the Defence Army of Israel Ordinance (1948)) (Laws of the State of Israel, 1948) was overturned the next year in Article 21 of the Defence Service Law (1949) (Laws of the State of Israel, 1949), but the practice still continues unabated, and the discrimination against non-veterans still continues (Kretzmer, 1990; Jabareen, 1998).

In a true democracy, the courts would have ample legal means to undo such practice. For example, the American Supreme Court has ruled repeatedly that discrimination is illegal whether it is the overt purpose of a law, or the unintentional result of a law (Kretzmer, 1990).

Many solutions have been offered but none of been accepted. For example, maybe some type of non-military national service program could be created which Arabs could serve in, and then receive the military veteran benefits from.

Denial of discrimination against women, the disabled and gays is very commendable, but is only really enjoyed by those women, disabled and gays who happen to be Jews because women, disabled or gay people who happen to be Arabs are still discriminated against because they are Arabs.

And still the 9th amendment to the Basic Law: The Knesset (passed in 1985; please see Appendix IV) remains in place that gives the Knesset Electoral Committee the power to deny candidates the right to run for office if their platform includes equal rights for all Israeli citizens (Kretzmer, 1990; Jabareen, 1998).

Pertaining to this matter, the amendment says, "7A. A candidates' list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following …. (1) negation of the existence of the State of Israel as the state of the Jewish people" (State of Israel Official Website, 1998). What this has come to mean, and what it has been interpreted to mean is that Israel must be a state where the Jewish people get special priviledges over other groups of people (Jabareen, 1998).

The second point that would deny a candidates' list participation in elections to the Knesset, is: "(2) negation of the democratic character of the State" (State of Israel Official Website, 1998) .

But many people believe that this point is not compatible with the first point - that a true democracy provides equality in all bases to all citizens of the state, not to one group over others based on something like religion, nationality, race, gender, etc.(Kretzmer, 1990).

CONCLUSION

This is the tragic irony of the State of Israel - that the major conflicts of the people that started the country kept the country from adopting an effective Constitution to guide its development, and as a result the country went terribly astray and became the opposite of one of its most important ideals - it became an apartheid state when it had hoped to become a model of democracy as befitting Jewish intellectual and cultural history up to that point.

APPENDIX I

The text of the Entrenched Clauses found in the Basic Laws of the State of Israel. These clauses only apply to attempts to change the literal meaning or wording of the Basic Laws they are included in by either regular laws or emergency regulations passed by the Knesset (Kretzmer, 1990; State of Israel Official Website, 1998). Unfortunately, equal rights for all Israeli citizens are not listed in any Basic Laws (Kretzmer, 1990).

• Basic Law: The Knesset (1958)
  • LAW NOT TO BE AFFECTED BY EMERGENCY REGULATIONS
    Section 44: Not withstanding the provision of any other law, this Law cannot be varied, suspended, or made subject to conditions by emergency regulations.
  • ENTRENCHED SECTION Section 45: Section 44, or this section, shall not be varied save by a majority of eighty members of the Knesset.

• Basic Law: President of the State (1964)
  • LAW NOT TO BE AFFECTED BY EMERGENCY REGULATIONS
    Section 25: Not withstanding the provision of any other law, this Law cannot be varied, suspended, or made subject to conditions by emergency regulations (Laws if the State of Israel, 1948-1984; State of Israel Official Website, 2003).

• Basic Law: The Judiciary (1984)
  • LAW NOT TO BE AFFECTED BY EMERGENCY REGULATIONS
    Section 22: This Law cannot be varied, suspended, or made subject to conditions by emergency regulations.

• Basic Law: Human Dignity and Liberty (1992)
  • STABILITY
    Section 12: This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.

• Basic Law: Freedom of Occupation (1992)
  • STABILITY
    Section 6. This Basic Law shall not be varied, suspended or made subject to conditions by emergency regulations.
  • ENTRENCHMENT
    Section 7. This Basic Law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset.

• Basic Law: The Government (2001)
  • PERMANENCE OF THE LAW
    Section 44:
    • (a) This Basic Law can only be changed by a majority of the Knesset members; the majority under this subsection will be required for decisions of the Knesset plenum in the first, second and third readings; for purposes of this subsection, "change" is either explicit or by implication.

APPENDIX II

Basic Law: The Judiciary (1984). Section 15 of this Basic Law lists the duties of the Supreme Court. Judicial review of the Knesset law-making activities is not amongst them (Kretzmer, 2002).

SUPREME COURT Section 15

• (a) The seat of the Supreme Court is Jerusalem.
• (b) The Supreme Court shall hear appeals against judgments and other decisions of the District Courts.
• (c) The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court (beit mishpat or beit din).
• (d) Without prejudice to the generality of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent -
  • (1) to make orders for the release of persons unlawfully detained or imprisoned.
  • (2) to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting;
  • (3) to order courts (batei mishpat and batei din) and bodies and persons having judicial or quasi-judicial powers under law, other than courts dealt with by this Law and other than religious courts (batei din), to hear, refrain from hearing, or continue hearing a particular matter or to void a proceeding improperly taken or a decision improperly given;
  • (4) to order religious courts (batei din) to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction, provided that the court shall not entertain an application under this paragraph is the applicant did not raise the question of jurisdiction at the earliest opportunity; and if he had no measurable opportunity to raise the question of jurisdiction until a decision had been given by a religious court (beit din), the court may quash a proceeding taken or a decision given by the religious court (beit din) without authority.
• (e) Other powers of the Supreme Court shall be prescribed by Law (State of Israel Official Website, 1998).

APPENDIX III

Here is a reprint of the sections of the Basic Law: Human Dignity and Freedom (1992) which lists the civil rights it protects. Notice that equality for all Israeli Citizens as listed in the "Declaration of the Establishment of the State of Israel", is not included in this Basic Law (State of Israel Official Website, 1998).

• PURPOSE
  Section 1. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.
• PRESERVATION OF LIFE, BODY AND DIGNITY
  Section 2. There shall be no violation of the life, body or dignity of any person as such.
• PROTECTION OF PROPERTY
  Section 3. There shall be no violation of the property of a person.
• PROTECTION OF LIFE, BODY AND DIGNITY
  Section 4. All persons are entitled to protection of their life, body and dignity.
• PERSONAL LIBERTY
  Section 5. There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.
• LEAVING AND ENTERING ISRAEL
  Section 6.
  • (a) All persons are free to leave Israel.
  • (b) Every Israel national has the right of entry into Israel from abroad.
• PRIVACY
  Section 7.
  • (a) All persons have the right to privacy and to intimacy.
  • (b) There shall be no entry into the private premises of a person who has not consented thereto.
  • (c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.
  • (d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person (State of Israel Official Website, 1998).

APPENDIX IV

Basic Law: The Knesset, Amendment 9 (1985). This amendment to the Basic Law: The Knesset limits who can run for the Knesset. “negation of the existence of the State of Israel as the state of the Jewish people” has been interpreted to mean that candidates cannot run for office if they do not support the Government and society of the State of Israel giving special priviledges and benefits to the Jewish people over all other people of other religions based soley on them being of the Jewish religion (Jabareen, 1998).

• AMENDMENT OF SECTION 7A
  Section 1. In the Basic Law: The Knesset(1), the following section shall be inserted after section 7:

  "PREVENTION OF PARTICIPATION OF CANDIDATE'S LIST

  7A. A candidates' list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following: (1) negation of the existence of the State of Israel as the state of the Jewish people; (2) negation of the democratic character of the State; (3) incitement to racism."

(State of Israel Official Website, 1998)

BIBLIOGRAPHY

Davidson, Roger H. "United States, Government of the". World Book Encyclopedia Online Reference Centre, AOL Service, (2003).

Davis, Uri. "Israel: An Apartheid State". Published by Zed Books, London (1987).

Elazar, Daniel J. "The Constitution of the State of Israel" Jerusalem Center for Public Affairs, Jerusalem, Israel (1993).

"Human Rights and the Rule of Law". Israel Ministry of Foreign Affairs, Jerusalem, Israel (1998).

"ISRAELI GOVERNMENT'S OFFICIAL WEBSITE", published by the Israel Ministry of Foreign Affairs, Jerusalem, Israel (copyrighted 1998). URL: http://www.mfa.gov.il/mfa/home.asp Goto "Map". Press "Basic Laws" link in the middle of the graphic image of the website map.

Jabareen, Hassan; Dalal, Marwan; Rosenberg, Rina & Bashara, Suhab. "Legal Violations of Arab Minority Rights in Israel". Adalah The Legal Center for Arab Minority Rights in Israel, Shfaram, Israel (1998).

Kretzmer, David. "The Legal Status of the Arabs in Israel". Series: Westview Special Studies on the Middle East. Westview Press, Boulder, CO (1990).

Kretzmer, David. "The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories". SUNY Press, Albany, NY (2002).

"Laws of the State of Israel: Authorized Translation from the Hebrew". Government Printer, Jerusalem, Israel (1948-1987).

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