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Israel - The Constitution
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. 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. 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.
More about the Government and Politics of Israel.
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