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WEEKLY NEWSLETTER
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Israel
Index
The Declaration of the Establishment of the State of Israel,
proclaimed by the Provisional Government and the Provisional
Council of State on May 14, 1948, mentions a draft constitution to
be prepared by a constitutional committee and to be adopted by an
elected constituent assembly not later than October 1, 1948. After
convening on February 14, 1949, the Constituent Assembly, however,
instead of drafting a constitution, on February 16 converted itself
into a legislative body (the first Knesset) and enacted the
Transition Law, commonly referred to as the "small constitution."
The Constituent Assembly could not agree on a comprehensive written
constitution, primarily for fear that a constitution would unleash
a divisive conflict between religious and state authorities, a fear
that continued to exist in late 1988. The ensuing parliamentary
debate, from February 1 through June 13, 1950, between those
favoring a written constitution and those opposing it was a
microcosm of the conflict between state and religious interests
that would continue to agitate Israeli political life.
Proponents argued that under a bill of rights incorporated into
a constitution Israel would benefit from the experience of other
nations that had adopted written safeguards to ensure religious
freedom, minority rights, equal rights, and civil liberties. A
written constitution, they asserted, would also safeguard the
principle of the separation of powers and, in a period of rapid
immigration, referred to in Israel as the "ingathering of exiles,"
would be a unifying factor, unequivocally establishing the
supremacy of civil law.
Opponents contended that the domestic and external
circumstances of Israel in 1949 were not auspicious for the
adoption of a constitution. They stressed that a written
constitution would be politically divisive because the
controversial issue of the boundaries between state and religion
would inevitably be raised in formulating the principles, goals,
and nature of the state as codified in a constitution
(see The Role of Judaism
, ch. 2). Prime Minister David Ben-Gurion, the leading
opponent of a written constitution, maintained that the
Proclamation of Independence, however great an event, was merely
the beginning of a long process in Israel's evolution as a
democratic state and not "the redemption." Perhaps most
significantly, Ben-Gurion and Mapai (Mifleget Poalei Eretz Ysrael,
Israel Workers' Party--see Appendix B), the Labor Party's
predecessor, had already formed an alliance with Orthodox religious
parties by entering into a "historical partnership" with Mizrahi
(Spiritual Center--see Appendix B) in 1933. As part of the Mapai-
Mizrahi agreement of June 19, 1947, they obtained unity among the
various groups in the Yishuv (the prestate Jewish community) by
promising the leaders of the ultra-Orthodox Agudat Israel (Society
of Israel--see Appendix B) that the status quo on issues involving
state and religion would be maintained in the new state. Some
observers felt that Ben-Gurion and other Labor leaders grossly
underestimated the long-term consequences of delaying resolution of
the role of religion in a modern Jewish state. In later years, the
Orthodox-dominated Ministry of Religious Affairs, Ministry of
Interior, rabbinate, rabbinic courts, and municipal religious
councils gained a virtual monopoly in patronage and resources over
Israel's organized Jewish religious institutions to the detriment
of the more moderate Conservative and Reform movements of Judaism.
As a consequence of the resurgence of right-wing fundamentalist
religious movements, the influence of secular elements in Israeli
society, especially of Labor and its allies, was ultimately
diminished.
The Israeli solution to the lack of a constitution has been a
"building-block" method. In June 1950, the Knesset passed a
compromise resolution, known as the "Harari decision" (named after
Knesset member Izhar Harari), approving a constitution in principle
but postponing its enactment until a future date. The resolution
stated that the constitution would be evolved "chapter by chapter
in such a way that each chapter will by itself constitute a
fundamental law." It stipulated: "The chapters will be submitted to
the Knesset to the extent to which the Committee [for Constitution,
Law, and Justice of the Knesset] completes its work, and the
chapters will be incorporated in the constitution of the State." By
1988 nine Basic Laws had been enacted to deal with the Knesset
(1958), Israeli Lands (1960), the Presidency (1964), the Government
(1968), the State Economy (1975), the Army (1976), Jerusalem
(1980), the Judiciary (1984), and Elections (1988). These Basic
Laws, transcending regular legislation, may be amended or changed
only by a special majority; in most cases the majority required is
at least 80 members of the 120-member Knesset. Moreover, to ensure
the country's stability, the Basic Laws may not be amended,
suspended, or repealed by emergency legislation.
Apart from the nine Basic Laws, as of the end of 1988 there
were a number of ordinary laws that legitimized the structure,
functions, and actions of state institutions. These ordinary
statutes were intended eventually to take the form of Basic Laws,
presumably with appropriate revisions to account for changing needs
and circumstances. Among these laws were the Law of Return (1950),
Nationality Law (1952), the Judges Law (1953), the State Education
Law (1953), the Courts Law (1957), the State Comptroller Law
(1958), and the Knesset Elections Law (1969). Legislation such as
the Law of Return, the Nationality Law, and the State Education Law
sought to resolve fundamental secular-religious disagreements. In
the judgment of most Israeli observers, however, the enactment of
such laws did not resolve fundamental controversies because
Orthodox figures later sought to overturn them. For example, in
1988 the government was engaged in a legislative struggle involving
renewed attempts by Orthodox religious parties to amend the 1950
Law of Return, the country's basic immigration law, by granting
Orthodox religious authorities exclusive power to decide who is
Jewish and to exclude people who had converted to Judaism through
the Reform or Conservative movements. On June 14, 1988, the Knesset
defeated two such bills by votes of sixty to fifty-three and sixty
to fifty-one.
The question of human rights and civil liberties has been an
important concern of all Israeli governments. It is reflected, for
instance, in the Declaration of the Establishment of the State of
Israel, sometimes considered analogous to the United States
Declaration of Independence. The Israeli declaration reads in part:
"The State of Israel 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." The declaration contains sections that were intended to
grant constitutional authority for the establishment and operation
of state organs during the immediate postindependence years. Apart
from that legal significance, however, the declaration lacks the
status of a formal constitution against which the legality of other
enactments can be tested. This is especially true regarding the
issue of fundamental civil rights.
In the absence of an expressed bill of rights, Israeli
governments have relied on the court system to safeguard civil
rights and liberties. Israeli citizens have enjoyed a large measure
of civil rights as a result of high standards of fairness in the
administration of justice in Israel proper. Nonetheless, certain
infringements have been caused by the dictates of internal security
(see Israeli Arabs, Arab Land, and Arab Refugees
, ch. 1). According
to a United States Department of State report on human rights
practices in Israel released in February 1988, "Israel is a
parliamentary democracy which guarantees by law and respects in
practice the civil, political, and religious rights of its citizens
. . . As in the past, the most significant human rights problems
for Israel in 1987 derived from the strained relations between the
Israeli authorities and some Israelis on the one hand and the Arab
inhabitants of the occupied territories on the other hand."
A number of attempts have been made to introduce proposals for
a detailed constitution. The latest occurred in August 1987, when
the Public Council for a Constitution for Israel, a group of Tel
Aviv University professors led by Uriel Reichman, dean of its
faculty of law, launched a campaign to enact a constitution. The
group argued that the existing Basic Laws were not tantamount to a
constitution because such topics as judicial review and a bill of
rights were not covered and because most of the Basic Laws were
regular laws that could be amended by a simple majority vote of the
Knesset. A written constitution, in contrast, would spell out the
relationship among the different branches of government and
establish a type of secularized bill of rights between the
individual and the state. The group advocated three necessary
reform measures as essential for a democratic and constitutional
state: the direct election of the prime minister; the safeguarding
of all Basic Laws so that they could be rescinded only by a
two-thirds or three-fifths Knesset majority; and the establishment
of a well-defined system of judicial review. While the proposal had
little chance of Knesset passage, it aroused renewed interest in
the reform of the Israeli electoral, legislative, and judicial
systems
(see Prospects for Electoral Reform
, this ch.).
Data as of December 1988
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