Israel's Knesset Debates the Adoption of a Human Rights Charter

Book excerpt

By: Netanel Lorch

Date: January 15, 1964

Source: Lorch, Netanel., ed. Major Knesset Debates: 1948–1981. Lanham, MD., University Press of America, 1993.

About the Author: Netanel Lorch is a former Secretary-General of the Knesset and author of several books about Israel's military history. The Knesset [trans. 'Assembly'] is the Israeli Parliament. First convened in February 1949, it consists of 120 elected members. In the source below, members are discussing the proposals of the Knesset member, Professor Yitzhak Klinghoffer (1905–1990), for a Human Rights Charter. Born in Austria, Klinghoffer fled to France then Brazil to avoid the Nazi annexations of 1938 and 1940 before settling in Israel in the 1950s. Klinghoffer was an expert on constitutional law and a founder of Israel's Liberal Party in 1961.

INTRODUCTION

When the state of Israel was proclaimed in 1948, one of the key differences that emerged between its founding fathers rested on the issue of a constitution. Though it had been promised in Israel's Proclamation of Independence, those who sought to bring in a formal written constitution were opposed by orthodox Jews, who opposed the notion of a secular document having higher authority than religious texts, such as the Torah and Talmud. In 1949, the first Knesset arrived upon the Harari Decision, by which Israel would forgo a formal constitution but instead formulate "Basic Laws" which would form the key component of Israel's unwritten constitution. Between 1958 and 1992, eleven Basic Laws would be passed, covering everything from the designation of Jerusalem as Israel's rightful capital to the role of the army. Although non-codified, combined they provided one of the most comprehensive constitutional documents in the World.

The debate about incorporating a human rights element into the Basic Laws was one of the most perennial in Israel's first fifty years. Although most democracies, including Israel, adhered to the principles of human rights law as expressed in the United Nations Universal Declaration of Human Rights, few had it enshrined in their constitutions or had adopted their own charter. Constitutional law is normally marked by its brevity: adding clauses which are open to interpretation is seen as a way of inviting a multitude of challenges to legislative law.

Liberal minded Israelis, such as Professor Yitzhak Klinghoffer, a constitutional law expert and member of the Knesset, however, believed a human rights element should be essential to Israel's constitution. Klinghoffer drafted a comprehensive Human Rights Charter which he put before the Knesset. He viewed its adoption as being the first step towards the Basic Laws assuming a Human Rights aspect.

PRIMARY SOURCE

Human Right's Charter

Introduction

It will be recalled that the work of the Constituent Assembly convened in 1949 ended with a compromise, namely, that the formal constitution be written over time, one chapter at a time. This was done, and in fact is still being done at the time of writing. The lack of a Bill of Rights has been a sore point for years. Professor Kinghoffer, himself a teacher of Constitutional Law, proposed such a bill. His proposal was rejected by the Minister of Justice, a distinguished jurist in his own right.

Sitting 320 of the Fifth Knesset

15 January 1964 (1 Shevat 5724)

The Speaker, B. Idelson: We now proceed to MK Klinghoffer's bill on the Basic Law: Charter of Basic Human Rights, 5724-1963.

I. Klinghoffer (Liberals): Madam Speaker, distinguished Knesset, not only is the proposal which I have the honor of bringing before the Knesset long and complex … but each of its component topics is important and raises problems which should be discussed extensively….

Obviously, the time allotted for presenting a private bill … is insufficient for conducting an exhaustive discussion of all these problems, but submitting it gives me an opportunity to attempt to convince the House that it should be transferred to one of the Knesset committees so that it may be prepared for a first reading.

I will try to do so by limiting myself to two aspects of the overall subject … namely, giving a brief review of the history of the idea of determining basic human rights in law or a special Basic Law, and stressing what I regard as the need for according the charter of basic rights a rigid character and supremacy within Israel's legal system.

The idea of a charter of basic human rights is based on the constitutional tradition which has taken root throughout the world in the last two hundred years. It was preceded by quasi-constitutional documents in English constitutional history, although the first in the series of modern human rights charters guaranteeing the individual areas of freedom in which the authorities may not interfere was the State of Virginia's Bill of Rights of 1776, which served as the pattern for many others all over the world….

The first country to introduce a legal basis for safeguarding basic social rights was Mexico, which included them in its constitution in 1917…. The countries of Europe began including basic social rights in democratic constitutions at a later date…. Since the end of the Second World War … there has been … international concern to ensure basic human and social rights…. This was reflected in certain passages of the United Nations charter and the World Proclamation of Human rights of 10 December 1948. This is not a convention, it is not a binding document, but it has moral and educational value and several new countries have incorporated recognition of its principles into their constitutions. Since 1954, the U.N. has been preparing two international agreements, one regarding civil and political rights and the other regarding social, economic and cultural rights. The contribution of Israel's representatives to this committee should be noted.

Against this background … it is somewhat surprising that Israel has no constitutional law assuring these rights. Is it not paradoxical that the Jewish people, which has always fought in the diaspora for human rights, has not yet attained a charter of basic rights in its fifteen years of independent existence in its own land? My proposal represents an attempt to put an end to this regrettable situation. The fact that the Government has refrained from taking any initiative in this may be due to its allergy to the principle of introducing a rigid constitution which would supercede other laws, as well as to its recognition … of the fact that a regular law ensuring basic human rights will have no legal value…. We must emerge from this deadlock. If groups within the government are still considering adopting a charter of basic rights in the form of a law which can be amended or annulled, like any other law, by a simple majority in the Knesset … they would do well to pay heed to well-known jurists who have completely rejected that approach….

In my view, it is time that Israel adopted a charter of basic human rights … which should supersede regular legislation. I assume that these two questions are the central ones which could arise in any argument on matters of principle in Israel concerning the constitutional guaranteeing of basic human rights…. The actual details of my proposal to assure basic human social, economic and educational rights … will, I hope, be discussed in the parliamentary stages which will follow this preliminary debate. I will add only that the U.N. Secretary-General, U Thant, designated 1964 as Human Rights Year throughout the world. We should respect that pronouncement by passing a Basic Law of a charter of basic human rights which will be worthy of its name and will bring us honor. I asked the Knesset to decide to transfer my proposal to the Constitution, Law and Justice Committee so that a first reading may be prepared.

The Minister of Justice, D. Joseph: Professor Klinghoffer's proposal … is not original and has been preceded by several others, though these have not been debated by the Knesset…. I and the staff at my Ministry have examined MK Klinghoffer's proposal, and have noted various positive and negative aspects of it, but I will concentrate here on the matters of principle….

The Knesset has already passed several constitutional laws, such as the Basic Law on the Knesset, the transition Law, with its various amendments … the Judges Law … the Law of Return, etc…. My Ministry has also prepared a chapter on human rights for the Basic Law but not in a form which they will destroy existing legislation by proclaiming its supremacy, as MK Kinghoffer advocates. His suggestion will enable any judge to decide that the law which has been in force since the establishment of the state … is invalid, thereby leading to general confusion…. Behind the fine and supposedly self-evident phrases of MK Klinghoffer's proposal hides a revolution in the country's constitutional basis and a blow to the Knesset's authority. Thus, the Knesset which is responsible for legislation, and the government, which is responsible for proposing the laws and the country needs to the Knesset, are working to prepare all the constitutional laws which, in accordance with the decision of the Knesset, will one day form Israel's constitution.

My question is whether in these circumstances it is necessary for a Member of the Knesset to interfere in this process and take the initiative for proposing laws of this kind, unless the intention is to act demonstratively and goad the Government. Even if the Knesset were to accept the proposal, the Constitution, Law and Justice committee would not deal with it until it had completed its work on the Basic Law: the president of the state … not to mention the Basic Law: the Government, which will soon be submitted. I do not think that his is an efficient or desirable way of managing our legislative affairs, and for that reason alone I will propose that the Knesset remove it from the agenda.

I … do not want the mistaken impression to be created that a member of the Knesset has proposed something good, a charter of human rights, a large part of the fine constitution which the country needs, and for some unaccountable reason the Government is not prepared to accept it…. In my view there is a fundamental mistake in professor Klinghoffer's approach to our constitutional problem … namely, that he wants to introduce into Israel, which is a unique and Unitarian state, something which is appropriate for a federal state. In a federal state it is necessary to ensure that the constitution is not subject to the legislatures of either the federal body or any one its component provinces or states. Then it is also necessary to determine who will decide whether a given law clashes with the constitution or departs from the rights of the state, the federal government or any individual province or their governments. In a Unitarian state, like Israel, there is no need or justification for that. On the contrary, no institution should be placed above the legislature, which should be enabled to adapt the constitution to the country's changing needs from time to time, even if the constitution is contained within one document.

This fundamental distinction between a federal and a Unitarian state seems to have escaped professor Klinghoffer, who wants our legislature to be subject to the decision of any court, because he does not propose who will decide whether a given law contradicts the proposals contained in his bill … and any judge—not even nine Supreme Court judges, as in the case in the U.S.—may overturn a law which has been passed by the Knesset.

P. Rosen (Liberals): Would you agree to that?

The Minister of Justice, D. Joseph: I will answer you if you come to my Ministry, because that is not MK Klinghoffer's proposal. I do not propose setting nine judges above the 120 elected representatives, when the nation can replace the latter but not the former … though what we are talking about is five judges out of nine.

J. Sapir (Liberals): There is a certain lack of politeness in that….

The Minister of Justice, D. Joseph: Isn't my Ministry an appropriate place for discussing a subject of that kind?

J. Sapir (Liberals): The Knesset is here and you are replying to it.

The Minister of Justice, D. Joseph: … In his explanation, Professor Klinghoffer said that Israel's Declaration of Independence is not a substitute for a document of that kind because the Supreme Court, has decided that that document "expresses the nation's vision and credo, but does not in practice determine anything about the existence or annulment of laws." Exactly the same may be said of MK Klinghoffer's proposal, which does not determine what should be in the law but merely contains a long list of fine statements about rights which should be enacted in other laws, and which have in effect already been set out in detail in many existing laws…. To act as if we had before us a tabula rasa, as if nothing existed in the state and we had to begin with that law, with all due respect—I do not wish to speak sharply.

I completely reject NK Klinghoffer's claim that "the objective can be attained solely by legislating a Basic Law which will supercede the general legislation." I maintain that that can be achieved, as has in effect been done, by observing the prevailing law and amending it from time to time by regular legislative procedures.

How can one ignore the special reality of our life in Israel when, because of our unfortunate security situation, since we are surrounded by enemies who seek to destroy us, at any moment a situation might arise in which special legislation is required, and the majority in the Knesset will wish to do what is necessary to defend the state, but the Knesset will be free to act only with two-thirds majority?

And we know the secret, we know how often there are 81 members in the Knesset when the vote is taken.

I also disagree with the legislative system underlying MK Klinghoffer's proposal. The first few paragraphs reflect their German origin, in my view.

A. Ben-Eliezer (Herut): Do you regard that as positive?

The Minister of Justice, D. Joseph: No. the first three and the sixth paragraphs read as if they were translated from the West German Basic Law of 1949 … and a phrase like "the freedom to develop one's personality" is not recognized by us as a legal concept….

I doubt whether the statements MK Kinghoffer desires us to make in his bill will bring us honor, since many people will regard them as mere empty phrases, without any practical value or content. For example, what does "Human dignity should not be harmed" mean? That one should not insult someone? Whom does it help, and how, if no accompanying sanctions are prescribed by law?… Who needs a declaration that "Every man has the right to develop his personality"?…

What is the value of the pronouncement that "Human life is sacred" if it means that one must not kill … that is evident from our criminal law regarding murder…. What is the point of saying that one must not strike a person? Will that stop a father from striking his son?…. If the intention of the bill is serious, would it not be better to determine a penalty? Our criminal law has already dealt with this….

As a leading British jurist has said, without a clear and precise criminal law the citizens of a country will not benefit from declarations of this kind, apart from a general feeling of well-being. But that does not guarantee the public welfare. What point is there in declaring that science is free? Is it not free anyway? Do we make it free by declaring it to be so? And what does "teaching is free" mean? Does it mean that every teacher is free to teach what he wishes in school?… I believe that teaching is not free. Teaching is limited to what we determine by law…. Teachers are limited by the curriculum of the schools….

What is the value of saying that "The freedom to strike is guaranteed," if this is qualified by the phrase "and may be used in accordance with the law". This means that the law, not the fine constitution, will determine to what extent the right to strike exists. That being so, what is the value of the fine phrase in the constitution?… What is important is not fine phrases but good laws, which are clear and precise and as detailed as possible….

Thus, Professor Kinghoffer presents a series of rights which he supposedly wishes to guarantee, while they have always existed and are clearly guaranteed by law…. His bill also contains detailed provisions which suffer from the same defects, and will have an adverse effect on existing law if they are accepted…. I am not concerned only that certain provisions will be annulled by the bill—Knesset can be warned of those dangers and appropriate solutions found—but that from time to time a clever lawyer will discover that a given law or clause contradicts the Charter of Basic Human Rights … and the courts will be obliged to annul laws which neither MK Klinghoffer nor the Knesset intended to harm…. And even if the discrepancy is resolved, the state of confusion which will prevail until matters are settled will undermine the stability of Israeli law…. It is not by chance that the great charters were written after revolutions, when nations were prepared to divest themselves of outdated legal systems. The State of Israel has no need of a legislative revolution. It needs continuity of law, carefully considered changes and organic development….

Professor Klinghoffer's bill proposes that the courts be authorized to examine whether a regular law accords with the Charter of Human Rights. In other words, every judge … will be entitled to declare a given law invalid, or reverse the decision of another judge…. Is that the attitude to legislation which should be granted by the Knesset after several readings in the plenum and a careful examination in committee?… The issue of the examination of laws by the courts is one of the most serious of our day. In England the courts do not have the right to examine parliament's legislation, but would anyone say that human rights are not guaranteed in England. In the U.S. the Supreme Court has taken it upon itself to supervise the legislature … in accordance with the constitution. It has happened there in the last two decades that many laws which we intended to achieve social progress were obstructed by the court, until its composition changed. The court blocked laws prohibiting the employment of children and restricting hours of work…. On the other hand, despite the fact that their Constitution states that no man's right to vote may be restricted by race or color, and despite the right of the Supreme Court to act against violations of the Constitution, we know that in certain states Negroes are unable to use their right to vote. What, then, is the value of the fine phrase which has been in their Constitution for almost a hundred years?…

I do not want what I am saying to be interpreted as meaning that the courts always obstruct social progress or protect the enemies of democracy … the U.S. Supreme Court is the rock of freedom of its citizens, even though some of its decisions raise doubts in our minds. Our Supreme Court has made an important contribution to preserving human rights, although this does not make it the supervisor of the legislature … for "who will supervise the supervisors?" The supreme authorities of the state must be independent of one another, each one being subject solely to itself and its conscience. One cannot place human rights in the hands of one of them alone and rely on it to restrain the others; only if they all respect those rights is their existence assured. In that the courts are no better or superior to the legislature. I have every confidence that if the Knesset promulgates a charter of human rights it will not deliberately infringe it…. If in the future the Knesset sees fit to limit one of the rights which at present we think should be protected, it alone can judge the situation which will prevail then…. We must educate our sons to freedom and respect for the rights of others, but we must not tie their hands. That is why what is needed is a less rigid charter of rights, like the one my Ministry is preparing, and whose completion will not take long, I hope…. I propose that the bill under review be removed from the agenda….

I. Klinghoffer (Liberals): Time does not permit me to answer all the Minister of Justice's criticisms of the content of my bill … though I will focus on a few of them. He said that it is not true that neither England nor Israel has a constitution. I know that there are differences of opinion on this point centering on the distinction between a material and a formal constitution. We have constitutional law in the material sense, but when one debates a constitution one is referring to a formal one, which neither Israel nor England has. The lack of a constitution in Israel negates the assurance given in the Declaration of Independence…. It is true that a Constituent assembly was elected, but it did not promulgate a constitution….

The Minister regards my bill as an attempt to revolutionize our constitutional basis, since it could annul laws or provisions of laws and there is no knowing what this will lead to…. I would like to say that had it not been for this effect of the Charter I propose it would have been possible to ask what it was worth…. Its entire object is to be binding on the regular legislature and to bring about the consequent reexamination of the laws. That is why, at this point, I accept the Minister's criticism, which in my view emphasizes this positive aspect of my bill….

The Minister of Justice fears that the charter I propose will restrict the legislature and hereby undermine our constitutional foundations. I would like to say that I propose nothing of the sort. I am proposing only that in every instance the legislature be identified with the regular majority of the House, with any quorum. Two-thirds of all the members of the Knesset also constitute the Knesset, they are the legislature. In what way does this discriminate against the Knesset? You identify the Knesset with its regular majority when it makes decisions with any quorum….

I regret the fact that the Minister of Justice saw fit to single out two or three paragraphs (out of more than seventy) of my bill which he regards as having been copied from the basic law of West Germany. The fact that I included those paragraphs does not indicate that I am influenced by the Germans…. Those provisions, or ones very similar to them, are to be found in other documents which are international, not German, and include the term "dignity of man…."

In conclusion, as regards the Minister of Justice's remark … about the court's supervision of the constitutionality of the laws, he asks "who will supervise the supervisors?" The answer is that when the courts examine whether a given law accords with what is in the constitution or not they are merely fulfilling a purely legal role…. Comparing laws is, in effect, what judges do every day…. That is the right of every court of law in Israel. It is not concentrated solely in the hands of the Supreme Court, although by appeals and taking matters to the highest court the uniformity of decisions is ensured. The function which the court fulfills when it examines the validity of laws does not differ essentially from its function when it examines whether a certain law accords with the provisions of the constitution. That is basically the same function, as regards both thinking and law.

As regards the emphasis the Minister has placed on the need to educate the generations to come, I do not see, within the framework of the Knesset's activities, a more appropriate opportunity of attaining that objective than by passing the Basic Law determining a charter of basic human rights, which without a doubt will be of the greatest educational value in enhancing the nation's political culture.

The Speaker, B. Idelson: We will now vote on MK Klinghoffer's proposal to transfer his bill to the Constitution, Law and Justice committee.

The Vote

Those in favor of the proposal: 21

Those against: 35

(The proposal is not adopted.)

SIGNIFICANCE

In 1992, Israel finally adopted a Basic Law covering "Human Dignity and Liberty." It proclaimed that: "Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel." By then, however, Israel had become embroiled in one of the most controversial, widely reported and longest running human rights crises in modern history.

Three years after the Knesset rejected the adoption of a human rights charter discussed above, in June 1967, Israel fought what became known as the Six Day War, a three fronted pre-emptive strike against Egypt, Jordan and Syria. Israel astonished the world with the speed and effectiveness of the attack and in a swoop, through annexations, it increased its territorial size three times after seizing the Sinai Desert, Gaza, the West Bank, and the Golan Heights. Although it gave up most of the Sinai after the 1973 Yom Kippur War and Gaza in 2005, it has held onto most of the other occupied territories, thus giving rise to a series of human rights crises and global condemnation.

Arrest without charge, torture, targeted killings, the illegal settlement of occupied territories, onerous restrictions on freedom of movement, the ghettoising of entire towns are just some of the human rights violations of which Israel has been accused in the four decades it has held the occupied territories. The situation deteriorated markedly in the second Intifada (2000–2004) during which Israeli security forces would routinely carry out missions in the occupied territories, and prevent the passage of Palestinians into Israel itself, where many held jobs.

The U.S. State Department, which is usually one of Israel's more ardent defenders, has admitted that Israel's human rights record in the occupied territories is poor. Its criticism of occupying forces has in recent years been tempered by the apportionment of blame for human rights failures on the Palestinian Authority, which is supposed to govern Gaza and the West Bank. Nevertheless, in its 2005 Country Report on Human Rights Practices, the State Department noted that Israeli occupying forces stood accused of the following human rights abuses: "damage to civilians in the conduct of military operations; numerous, serious abuses of civilians and detainees; failure to take disciplinary action in cases of abuse; improper application of security internment procedures; use of temporary detention facilities that were austere and overcrowded; and limited cooperation with nongovernmental organizations (NGOs)."

To what extent the adoption of a Human Rights Charter in 1964 or an earlier Basic Law on "human dignity and liberty" would have improved the lot of those living in the occupied territories remains to be seen. Through its Basic Laws Israel came to protect and ensure the human rights of its citizens more comprehensively than almost any other country in the world. This is nevertheless a moot point. The problem facing those who live and who have lived in the occupied territories is that they are effectively stateless: though in Israeli held territory they are not seen as citizens of Israel; and although they had previously lived in Egyptian or Jordanian territory, most of their populations had been regarded as refugees after Israel's independence and the end of the Palestinian Mandate in 1948. The presence of Israeli settlers, who maintain their rights as citizens in the occupied territories, in contravention of international law exacerbates tensions.

More than a million Arabs living in Israel (though not the occupied territories) do so as Israeli citizens and are afforded the same rights under the country's Basic Laws as Israel's Jewish majority. The one exception in law is that Israeli Arabs are not obliged to undertake compulsory military service, although they are entitled to opt in. In practice, however, Israel's Arab citizens are subject to informal discrimination in education, employment, social policy provision and are under-represented in most professions and in government. Most notably, policies prohibiting the transfer of land to non-Jews in Israel make Arab land ownership problematic.

Discussion about human rights and Israel invariably invites questions about its treatment of its Arab population, both inside Israel itself and the occupied territories. Yet the Arab context and the problems Israel faces because of its regional politics blur an otherwise generally sound human rights record. Indeed, taken in the context of the constitutional protection it gives its citizen's human rights, Israel stands up to comparison with most western democracies. Many of these countries are still to enact any form of statutory protection for its citizen's human rights comparable to Israel's Basic Laws.