Since the establishment of the State of Israel in 1948, the protection of human rights has fallen to the judiciary, for Israel has no formal constitution or Bill of Rights. In 1948 it was decided to adopt a written constitution, and a Constituent Assembly was elected to implement this decision. However, internal political problems soon led to a decision to postpone the immediate adoption of a constitution. Instead, the constitution would be prepared by the Knesset, Israels parliament, chapter by chapter in a series of "Basic Laws" which would eventually be brought together to form the constitution. Thus the Basic Laws, taken together, comprise a "constitution-in-the-making." At present, the drafts of three additional basic laws are being circulated prior to their submission to the Ministerial Committee on Legislation: Draft Basic Law: Due Process Rights; Draft Basic Law: Social Rights; and Draft Basic Law: Freedom of Expression and Association.

Most chapters of Israel's prospective constitution have already been written and enacted as Basic Laws. They outline the basic features of government: the President, the Knesset (Israel's legislature), the Government, the Judicature, the Israel Defense Forces, and the State Comptroller. In 1992, two new Basic Laws were added: Freedom of Occupation; and Human Dignity and Liberty. These were the first Basic Laws which explicitly protected human rights.

The Supreme Court as Protector of Civil Liberties and the Rule of Law

In the absence of a Bill of Rights, the Supreme Court has made a large contribution to the protection of civil liberties and the rule of law. It developed a principle according to which statutes should be interpreted in a manner which presumes that the legislature has, generally speaking, no intention to curtail liberties or to empower other public authorities to do so. In practice this is a very strong presumption which enables the court to modify the ordinary meaning of statutory provisions and to make them consistent with the concept of civil liberties.

In the absence of a written constitution, and even in the face of legislation seemingly hostile to civil liberties, largely inherited from the former British mandatory government, the Supreme Court has been able in numerous cases to develop a body of case law protecting civil liberties almost as if a Bill of Rights existed. The court's decisions have protected, among other liberties, freedom of speech, freedom of occupation, and equality as fundamental values of the Israeli legal system. As a result, in practice Israelis largely enjoy the same civil liberties as citizens in other Western democracies.

Basic Laws on Human Rights

In 1992, the Knesset enacted two Basic Laws on human rights. The Basic Law: Freedom of Occupation deals with a right that is not specifically mentioned in other constitutions and human rights documents, namely the freedom to follow the vocation of one's choosing. The Basic Law: Human Dignity and Liberty deals with a whole range of rights. It includes protections against violation of a person's life, body or dignity. The law states that every person is free to leave Israel and every Israeli citizen outside Israel is entitled to enter Israel. The law protects property, personal liberty, privacy and confidentiality. The list of rights protected under these laws is not exhaustive, it is rather the beginning of a Bill of Rights for Israel.

The Basic Law: Freedom of Occupation contains an entrenchment clause, providing that the law cannot be changed except by a Basic Law enacted by a majority of Knesset members. Although the Basic Law: Human Dignity and Liberty does not contain an entrenchment clause, it does contain a limitations clause that states that the rights in the law cannot be infringed upon "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, or by regulation enacted by virtue of express authorization in such Law."

Israel's constitutional system is based on two fundamental tenets: that the State is democratic and that it is also Jewish. These principles are rooted in the 1948 Declaration of the Establishment of the State of Israel, notwithstanding the commitment to guarantee equal social and political rights to all its citizens, irrespective of religion, race or ethnic background. Although the Declaration does not constitute a binding constitutional document, the 1992 Basic Law: Human Dignity and Liberty explicitly provides that the human rights it articulates shall be interpreted "in the spirit of the principles in the Declaration of the Establishment of the State of Israel" and that the purpose of the Basic Law is to establish "the values of the State of Israel as a Jewish and democratic state." Hence, the constitutional challenge facing the State of Israel is to create a synthesis between these two principles.

Judicial Review of Statutes

Before 1995, the Supreme Court had only exercised judicial review over legislation that was inconsistent with entrenched clauses of basic laws. There are only a few such clauses in the basic laws and the activity of the Court was minimal in this area. The Court exercised judicial review over Knesset legislation that conflicted with entrenched provisions of basic laws on less than a handful of occasions.

However, in November 1995, the Supreme Court declared that it had the power of judicial review of Knesset legislation that violates a basic law, regardless of whether it has an entrenched clause. Thus, the Court confirmed the normative superiority of basic laws over ordinary legislation. The Court held that any law that conflicts with a basic law that has a limitations clause must be tested against the clause. For laws that conflict with basic laws without a limitations clause, the Court stated that the only way to amend such laws is through the enactment of a basic law. This is a major constitutional development that some have called a "revolution" in Israel's constitutional law. The combination of the two new basic laws on human rights and the Court's embrace of judicial review over legislation promises to usher in a new era in the protection of human rights in Israel.

The Supreme Court as High Court of Justice

The Supreme Court also plays an important role in protecting individual rights and preserving the rule of law through its function as the High Court of Justice. In this capacity, the Supreme Court hears petitions against any government body or agent. In these matters the Supreme Court is the court of first and last instance. This unique function of the Supreme Court permits direct access to the nation's highest court. Fees are quite low and many people take advantage of this process. There are approximately two thousand of these petitions made to the Court each year. Thus, persons who believe that the government has violated their rights or contravened the rule of law are entitled to a hearing in the Supreme Court.

It is in this capacity as the High Court of Justice that the Supreme Court has played a crucial role both in developing norms of human rights, and in ensuring that official actions comply with the rule of law. In many cases, including those involving fundamental constitutional and political consequences, or the highest echelons of government, the petitions are heard very quickly, sometimes within hours.

Standing in Court

When the rule of law is threatened by government action, it is often left to the courts alone to restrain the government. The courts can only exercise judicial review when a matter is properly placed before it. The general rule in many countries is that an application for judicial review may only be brought to the court by a person who has a personal interest in the case. The Supreme Court of Israel has held that in cases which raise problems of a constitutional nature or in matters concerning the rule of law it may make an exception to this general rule. In such cases, the Supreme Court opens its gates more widely than in many other democratic countries. In addition, the Supreme Court has permitted residents of the West Bank and the Gaza Strip to petition it for review of any act of the army or any other governmental body or official which affects them, much as any Israeli citizen may do. Under public international law, Israel is not obligated to take such a step. The supervision exercised by the court in this area is an important means for the preservation of the rule of law in the administered areas.

The general rule is that acts of all public bodies and officials are subject to judicial review. However, this rule is subject to an exception according to which certain public acts are not considered justifiable because they are not governed by legal rules or because they are too closely involved with the political process. The Supreme Court has gradually narrowed the limits of this exception and has thereby expanded the scope of judicial review.

Judicial Review of Parliament

The most daring venture of the Supreme Court in expanding the scope of judicial review has been in the field of parliamentary proceedings. In 1981, the court held that it could intervene in the internal proceedings of the Knesset. The delicate relationship between the legislature and the judiciary requires mutual respect and many fear that the involvement of the court in the internal proceedings of the Knesset may draw the court too deeply into the political arena. To preserve this delicate balance of powers, the Supreme Court has devised a test according to which the court will not intervene in parliamentary proceedings unless the matter concerns fundamental principles of the parliamentary system or substantive values of the constitutional structure.

The combination of the Knesset's legislation in the area of human rights and the consistent commitment of the Supreme Court to safeguard human rights and the rule of law promises continued protection in these areas for Israelis.

The Division of Human Rights of the Ministry of Foreign Affairs

In close cooperation with the Ministry's Legal Advisor's Department, the Division of Human Rights deals with all aspects of Israel's involvement in the sphere of human rights on the international level.

Israel is party to the six major international human-rights covenants. The State is therefore required to report on the degree of implementation of the obligations set forth in the various Covenants to which it is party. Israel has already submitted its periodic reports in respect to: the Convention on the Elimination of all Forms of Discrimination against Women; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. An initial report under the Convention on the Rights of the Child is now in preparation.

Human Rights Organizations in Israel

Human Rights Organizations enjoy full freedom to associate and to pursue their aims. Dozens of NGO's (Non-Governmental Organizations) work freely and beneficially in Israel, in all areas of human rights: the Association for Civil Rights; several organizations promoting the rights of Arabs; a coalition of 53 organizations working for children's rights; over one hundred organizations involved in women's rights issues; the Religious Action Center of the Movement for Progressive Judaism and other bodies involved in issues of freedom of religion; organizations working to promote the rights of the disabled, of homosexuals, of minorities; organizations working to promote freedom of information and speech; and many more.

June 1999