Human Rights

Israel's constitution will safeguard the basic liberties and rights of all its citizens, and will protect collective rights of minority groups from the threat of a tyranny of the majority (that is, an attempt by the majority to violate the rights of individuals and minorities). A written constitution will entrench Israel's fundamental values and commitments to human rights, defending them against short-term impulses to compromise them.

The nature and scope of constitutionally protected rights is, however, highly controversial. Some believe that the constitution should also guarantee social and economic rights to all, or the collective rights of minority groups; others believe that only individual freedoms and liberties should be protected at the constituional level. Even where undisputed liberties are concerned -- freedom of speech, for instance, or freedom of religion -- there is room for various interpretations of the scope and range of protected activities.

The Committee discussed four main types of rights: Political Rights; Social and Economic Rights; Minority Rights; and Due Process Rights.

First come the traditional political liberties: freedom of expression, freedom of the press, freedom of assembly, the right to political participation, and the right to free exercise of religion. Political rights require the state to abstain form certain proscribed types of action.

Social and economic rights, however, require the positive intervention of the state and allocation of funds providing basic necessities -- such as food, healthcare, housing, and education -- to all.

Minority rights are of a dual nature. They involve, firstly, the protection of minorities against violation of individual human rights and against discrimination, and secondly include the protection of collective rights granted to minority groups as communities, in order to assist them in preserving their identity, culture, and heritage.

Finally, the right to due process guarantees fair trials and the protection of one's privacy from inappropriate government interference.

Subtopics in the section on Human Rights include, but are not necessarily limited to:

• Political and Civil Rights
• Social and Economic Rights
• Minority Rights
• Rights of Due Process

The inclusion of social and economic rights in the constitution would require the government to ensure that people have access to such basic needs as food, health care, housing, and education. Should the constitution protect such rights? If so, what should the level of commitment be? Should the Supreme Court be allowed to pass judgment on questions of social and economic policy?

The inclusion of social rights in a constitution is controversial both in Israel and around the world. Many nations have spent two decades debating whether social rights should be afforded constitutional protection or left to ordinary law.

Supporters of the constitutional protection of social rights maintain that such rights are a precondition for maintaining human dignity, and that civil and political rights can only be realized if social rights are protected. Without basic education, health, and shelter, there is no hope for inclusive political participation. Citizens must posses and have access to basic goods and services in order for effective political participation be a real opportunity, not a mere hypothetical possibility.

Supporters also maintain that the need for such a constitutional commitment to social rights is particularly urgent in Israel, given the level of inequality in society and the great gaps between the rich and the poor both in wealth and in opportunities. Income inequality in Israel has risen over the past three decades, and Israel is now one of the countries with the widest economic disparities. This development applies to all sections of Israeli society, and particularly to specific underprivileged populations: Arabs, new immigrants, and the ultra-orthodox. The inequality in education is also higher than in many other countries, despite the relatively large share of government expenditure on education.

Protecting social rights in the constitution may provide a safeguard against the excessive growth of inequality in the allocation of income and national wealth. This inequality is unjust in itself, but it also embodies social, political and economic dangers - the greater the level of income inequality, the greater the social upheavals, and hence the graver the threat to the stability of the democratic system. Maintaining social stability in Israel is particularly important given the many schisms within society. Finally, income inequality undermines the democratic structure of government and the principle of equal participation to all. Those who are better off participate more in political deliberations and political decision-making, and by participating more they exercise more influence on government officials. Unequal resources also produce unequal influence in determining which issues get on the political agenda and, indeed, which even seem open to discussion.

In particular, the inclusion of social rights in the constitution may provide a safety net for disadvantaged minorities and augment their sense of security. The inclusion of social rights in the constitution will create an educational and political tool that limits the tendency of the legislature to harm groups that are too weak to exert direct political power.

Finally, supporters point out the fact that most countries include social rights in the constitution, albeit with varying levels of commitment. Israel’s constitution particularly should mention social rights, since the Basic Laws passed in 1992 provide constitutional status for property rights and freedom of occupation, thus creating a clear imbalance regarding the legal status of social rights.

The opponents of the including social and economic rights in the constitution emphasize the fact that the realization of social rights must be subject to the limited resources available to the economy and the desired extent of government expenditure. Protecting social rights is important, but may ultimately impair social welfare by harming other values, such as the right to property or the ability of the individual to realize his or her full potential. In certain circumstances, awarding far-reaching social rights is liable to act as a disincentive to work, thus depressing economic growth and preventing a rise in standard of living. Opponents also claim that priorities change from time to time, and this may also require changes in the rights granted by the state. Tying the hands of the policy-makers will make it difficult to adjust policies to meet changing conditions.

Given the political nature of social and economic decisions, opponents are also worried that the inclusion of social and economic rights in the constitution will grant the Supreme Court authority to make controversial policy decisions. The legal arena, they maintain, is not the appropriate forum for decisions regarding public preferences, nor is the judiciary the suitable body to fully understand the needs that arise from changing economic circumstances. The Supreme Court may be suitable to decide issues regarding such civil rights as freedom of speech or religion, but social rights are more quantitative in nature.

Supporters respond by saying that many of the arguments against the inclusion of these rights in the constitution may be neutralized or diminished by restricting judicial review, as well as by enacting legislation that accords the legislature and government extensive discretion alongside binding constraints. Comparative studies show that the courts are extremely reluctant to extend judicial protection to issues that require the allocation of financial resources and complicated policy decisions.

On June 20 and November 29, 2004, the Constitution, Law and Justice Committee met to discuss the protection of minority rights, particularly the Arab minority, in the proposed constitution.

There are two main concerns in the protection of minorities: The protection of minorities against violation of individual human rights and against discrimination, and the protection of “special”, collective, rights granted only to minority groups.

The Israeli Declaration of Independence promises that:

" “The State of Israel will maintain complete social and political equality for all its citizens, without distinction on the grounds of religion, race or sex’’

Several laws as well as landmark Supreme Court decisions also emphasize and highlight the importance of the principle of equality in Israel. As Chief Justice Aharon Barak stated in the Ka’adan case in which the Supreme Court ordered the Israel Lands Authority to treat Arabs equally in land allocations:

“Equality is among the fundamental principles of the State of Israel. Every authority in Israel, beginning with the State of Israel, its institutions and employees, must treat the various elements in the state equally. This is requisite from the Jewish and democratic character of the state and it is a function of the principle of rule of law, which is in force here. Thus, the state must honor and protect the fundamental right of every individual in the state to equal treatment"

Nevertheless, the discrimination against Arab citizens of Israel constitutes one of the most severe infringements of equality in the State of Israel. The repeated instances of discrimination cover all aspects of life, from the inadequacy of educational facilities to discrimination in the work force to insufficient government services and resources allocated to Arab areas. Israeli land planning authorities show insufficient regard for the needs of Israel’s Arab citizens, and, despite their representation in the population, it was only recently that the Supreme Court ordered the appointment of an Arab representative to the Israel Lands Authority.

The proposed constitution will reiterate the state's commitment to equal rights for all, including minorities. The constitution will emphasize universal human rights, and forbid state discrimination among its citizens on the basis of race, religion, or ethnicity.

In addition to equal protection, the Constitution committee has undertaken the task of discussing, for the first time in Israel’s constitutional history, the issue of collective rights for minorities, rights that are aimed at assisting minority groups in keeping and maintaining their identity, language, religion and culture.

The protection of minorities' group interests had not, until recently, attracted the same level of attention as the protection of individual human rights and freedoms and the principles of non-discrimination and equality. The prevailing view was that if the non-discrimination provisions were effectively implemented, special provisions for the rights of minorities would not be necessary. It has become evident, however, that further measures may be needed to better protect minorities from discrimination, to promote their identity, and to assist them in preserving their culture and traditions. To this end, special rights for minorities were elaborated and measures adopted to supplement the non-discrimination provisions.

Many state constitutions and international treaties have acknowledged the need in the protection of collective rights of minority groups. The most widely-accepted legally-binding provision on minorities is article 27 of the International Covenant on Civil and Political Rights (1966), which states:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language".

The topic, however, raises several difficult questions. First, What is a minority? Who defines a minority? Who are the beneficiaries of minority rights? The difficulty in arriving at an acceptable definition lies in the variety of situations in which minorities exist. Some live together in well-defined areas, separated from the dominant part of the population, while others are scattered throughout the national community. Some minorities base a strong sense of collective identity on a well-remembered or recorded history; others retain only a fragmented notion of their common heritage. In certain cases, minorities enjoy - or have known - a considerable degree of autonomy. In others, there is no past history of autonomy or self-government. Some minority groups may require greater protection than others, because they have resided for a longer period of time in a country, or they have a stronger will to maintain and develop their own characteristics. The Arab minority in Israel, being an indigenous minority, is a case in point.

Despite the difficulty in arriving at a universally acceptable definition, various characteristics of minorities have been identified, which, taken together, cover most minority situations. The most commonly used description of a minority in a given State can be summed up as a non-dominant group of individuals who share certain national, ethnic, religious or linguistic characteristics which are different from those of the majority population.

There is also the difficult question of what are the legitimate collective rights that a state should grant to minority groups in its territory. Several such rights are offered, including cultural rights and rights of self-determination. Members of the Committee expressed their views that many protections of minority rights are compatible with the Jewish character of the state and can be recognized in the constitution.

1. Measures of affirmative action for members of minority groups are often required to close the gap that discriminatory policies, where they were used in the past, created between the majority and persons belonging to minorities. Affirmative action is often required not only against the acts of the State itself but also against discriminatory acts of other parties within the State. These measures may also be required not to remedy past wrongs but in order to ensure the survival and continuing development of the cultural, religious and social identity of the minority.

In Israel, several ministries already administer affirmative action policies for Arabs to correct for past discrimination in areas such as education and housing. The Israeli Supreme Court has also declared that affirmative action should be employed in order to bolster Arab representation in the civil service and government offices, including the Israel Lands Administration Council. "When it comes to the public service," wrote Justice Yitzchak Zamir, "the question of one’s membership in the Israeli Arab community is a substantive consideration. Accordingly, not only is it permissible for the authority to take this consideration into account, but it is obliged to take it into account as one of its substantive criteria and to give it its proper weight... The substantive consideration determines that when it comes to the civil service, it is not enough to treat an Arab candidate equally, but he must be given affirmative preference in order to grant fair representation to the Arab population."

2. The right to use the language: the Committee discussed the controversial issue of the use of Arabic in public areas including street signs, signs on college campuses, food product labels, income tax forms, and government offices. The Committee also discussed the recent Supreme Court ruling that signage in mixed cities should be in Arabic as well as Hebrew.

3. Autonomy in education.

4. Measures to ensure the effective participation of members of minority communities in decisions which affect them.

5. Rights of self-determination: several members of the Committee objected the inclusion of national rights or rights of self-determination, stating that such rights undermine the national identity of Israel. Others pointed out that there is a continuum of rights of self-determination, and not all such rights undermine Israel's national identity.