The Declaration of Independence in Israel circa 2000
By Ze'ev Segal
Had the Supreme Court, in the first few years after the establishment of the State of Israel, not refrained from recognizing our Declaration of Independence as the country's constitution, Israel's law books would look very different today. Laws instituted by the authorities during the British Mandate period here - such as the one regulating the activities of the press or the one permitting the use of security measures (in times of emergency) - that run counter to the basic nature of a democratic state, would have long since vanished from our law books. The Knesset would then have been forced to pass laws in the spirit of the foundations of the "freedom" that was guaranteed in our Declaration of Independence, including "freedom of religion and conscience.".The Declaration of Independence was not initially intended to serve as a constitution capable of determining the validity of laws passed by the national legislature. Instead, the declaration assigned the responsibility of framing a constitution to the nascent country's founding assembly. When the founding assembly was dissolved in 1949 and became the first Knesset without framing a constitution, the High Court of Justice could have regarded the Declaration of Independence as our constitution. The High Court refused, however, to do so, although it did recognize the declaration as the essential creed of Israeli society and as a source of judicial rights not recognized by law.
In the absence of a constitution, Israelis have witnessed the development of the "doctrine of the two caps," which is the term appearing in High Court rulings. According to this doctrine, the Knesset dons its legislative cap when it passes "standard" legislation and its constitutional cap when it passes "Basic Laws," which have a special status and which, it is hoped, will one day collectively evolve into an actual constitution.
This longed-for "day of the constitution" has not yet arrived, and the Knesset - as the successor of the founding assembly - has yet to fulfill the sacred duty assigned to it, namely, the duty of framing a constitution. The past decade was a period of what Chief Supreme Court Justice Aharon Barak has termed "the constitutional revolution." This revolution has expressed itself in the Knesset's passage of Basic Laws pertaining to individual dignity and freedom and to the freedom of occupation. These laws granted constutional status to certain fundamental rights, which means that "standard" legislation cannot undermine them in any way. However, the Basic Laws have not gone so far as to explicitly recognize the authority of our courts of law to abrogate laws that run counter to the Basic Laws.
In 1995, the Supreme Court issued its own judicial Declaration of Independence and determined that our courts of law do have the authority to repeal laws, in light of the fact that the Basic Laws imposed limitations on the legislation passed by the Knesset. According to this limitation, the Knesset can pass a "standard" law that undermines the fundamental rights recognized in our Basic Laws only if that law conforms with the value system of the State of Israel, serves a "worthy goal" and does not infringe upon those fundamental rights "more than is absolutely necessary."
The failure of our Basic Laws to explicitly recognize substantive rights such as equality, freedom of expression and social rights clearly draws attention to the essential weakness of those laws. The Knesset is light-years away from fulfilling its obligation to frame an all-embracing constitution, to which all other laws passed by the national legislature would be subservient, including those pieces of legislation that entered our law books before the passage of the new Basic Laws. Since 1994, the Knesset has set aside its constitutional cap and has done nothing to consolidate or augment the existing set of Basic Laws.
Health Minister Shlomo Benizri has expressed his opposition in principle to the Basic Laws and this approach could sabotage any constitutional initiative in the future. Despite such attitudes, a team attached to the Israel Institute for Democracy, headed by Professors Mordechai Kremnitzer and David Kretzmer, is working on a proposal that the 11 Basic Laws passed so far become part of a united and integrated constitutional document. This proposal will be presented for discussion by a public council that will be chaired by former Supreme Court president Justice Meir Shamgar and which is in the process of being established for the purpose of strengthening Israeli democracy.
The formation of a comprehensive constitutional document will have two results. First, it will require the recognition of additional basic rights that have not yet reached the stage of being included in a piece of legislation. Second, it will explicitly establish that laws passed by the Knesset are subject to judicial and constitutional review and that the authority to conduct such a review must be placed exclusively in the hands of the Supreme Court.
The creation of this comprehensive constitutional document will establish an infrastructure for the struggle to advance principles that are contained in the Declaration of Independence.
Although the Knesset has not advanced the cause of "basic" legislation for a relatively long period of time, last year it did make a contribution, in the form of a "standard" piece of legislation, to the implementation of the principles of the Declaration of Independence.
In late March 1999, the Knesset passed a sweeping amendment to the Equal Opportunities for Women Law. In the words of the amended law, this piece of legislation was intended to "determine the principles for guaranteeing full equality between women and men, in the spirit of the principles contained in the declaration of the establishment of the State of Israel." Despite the importance of the new amended law, it has avoided dealing head-on with a number of issues that have become "sacrosanct" in Israeli society: The restriction of a woman's right to have an abortion, discrimination against women in religious laws on marriage and divorce, and the prohibition of the appointment of women judges in the system of rabbinic law courts.
Despite the amended law's lacunae, it is obvious that its recognition of the principle of equality and its use of the Declaration of Independence as an authoritative frame of reference will provide an interpretative infrastructure for our law courts, which consider the principle of equality to be a fundamental element in the "substance and character of the State of Israel."
The amendment's recognition of equality as one of our nation's fundamental principles was at the heart of the High Court of Justice's ruling on the town of Katzir. In that ruling, the High Court categorically stated that the state must not discriminate - directly or indirectly - between Jews and Arabs with regard to the allocation of state lands. This ruling strengthens the democratic foundations of Israeli society, although there are those who maintain that the High Court is, in effect, ignoring the essential Jewish character of the State of Israel. The ruling was based primarily on the Declaration of Independence, which was given the status of an important tool in the interpretation of the laws passed by the Knesset. The High Court does not regard our Declaration of Independence simply as some sort of ceremonial proclamation, but rather as the expression of the very substance of the State of Israel, which is responsible for ensuring full equality of rights for all its citizens, irrespective of religious affiliation, ethnic origin or gender.
The High Court ruling has effectively turned the Declaration of Independence of 1948 into a living document for the State of Israel in the year 2000
© copyright 2000 Ha'aretz. All Rights Reserved
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