The Development of the Law in Israel: The First 50 Years by Shlomo Guberman
Deputy Attorney General (Legislation) (retired)
On Friday, Sabbath eve, the 5th day of Iyar 5708, the 14th day of May 1948, the establishment of the State of Israel – the Jewish state in Palestine – was proclaimed. The Mandate over Palestine, which the League of Nations had conferred on Great Britain in 1922, came to an end.
The Declaration of the Establishment of the State set up a provisional legislature – the Provisional State Council – and a provisional government, and these were to function until regular authorities were duly elected, in accordance with a constitution which was to be instituted.
The Declaration included a “credo” of the new state:
THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it 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; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
The development of the law in Israel corresponds to the development of the legal status of the Declaration of the Establishment of the State of Israel. At first the Supreme Court regarded the Declaration as a political instrument to be used at the international level and not as a legal instrument, part of the law of the land. Later the Court regarded the Declaration as an instrument for the interpretation of statutes. It then proceeded to consider the Declaration to be a source of human rights and freedoms. A further development occurred when the Supreme Court, in a judgment delivered in 1965, conferred on the Declaration a supra-constitutional nature. The President of the Court, Justice Agranat, based his judgment on the Declaration, stating that the continuing existence of the State of Israel as a Jewish democratic state was a fundamental factor underlying all the statutes, and therefore no party list could take part in an election to the Knesset if its platform did not agree with the existence of the State of Israel as envisaged in the Declaration.
Several attempts were made through the years to confer on the Declaration a status of law, but they all failed. In 1994 this process reached the peak of its development, when the Knesset amended the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, and a new section, entitled “basic principles,” was introduced, stating that fundamental human rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. The Declaration then became the cornerstone of human rights in Israel and is now part of Israel’s emerging constitution.
The Law of the Land
When the Provisional State Council, the legislature of the new State, convened, its first enactment was the Law and Administration Ordinance, 1948. Section 11 of the Ordinance stated that the law which existed in Palestine on the eve of the establishment of the State of Israel would continue to be in force subject to any enactments of the new legislature and also subject “to such modifications as may result from the establishment of the State and its authorities.”
The legal system of the new state thus comprised remnants of Ottoman law, British Mandatory legislation (incorporating a large body of English law) and, in matters of personal status, the law of the various religious communities – Jewish law, Muslim law and Christian law.
It remained for the courts to decide to what extent the law of Palestine was altered as a result of the establishment of the State of Israel. The courts, under the leadership of the Supreme Court, adopted a conservative attitude – a far cry from the current activist policy of the judiciary.
The Law under the British Mandate
When the British administration succeeded the former ruler of Palestine, the Ottoman Empire (in which Palestine was the southern district of the province of Syria), it found a quite elaborate legal system. In keeping with general 19th century trends, substantial parts of the law were made up of codes – to a large extent based on European codes, mostly French. There was thus a code of commercial law and criminal procedure. The comprehensive Civil Code, the Mejelle, was based on Islamic law. In matters of personal status, mainly family matters, the Ottomans accorded extensive autonomy to the various religious communities; that autonomy was also imposed on the Ottomans by the system of capitulations, where European consuls had jurisdiction in personal matters concerning their nationals.
When the British assumed the Mandate over Palestine, they issued – under the King’s seal – the Palestine Order-in-Council, 1922. Section 46 of this Order defined the sources of the law which would apply in Palestine. Priority would be given to the enactments of the new legislator, the British High Commissioner, to the Orders-in-Council issuing from the King of Great Britain and to Acts of the British Parliament. Subject to these, the Ottoman laws would continue to apply, as they were in force in Palestine prior to the British occupation. Next in line would come the religious laws. In cases of lacunae in the sources quoted above, the law to be applied was “the substance of the common law and the doctrines of equity in force in England”; these bodies of law were to apply only “so far as the circumstances of Palestine and its inhabitants … permit.”
The British Mandatory administration, in keeping with the policy of Great Britain in administering its colonies, was anxious to introduce into Palestine the essentials of the English legal system. The major judicial officials, judges and lawyers working for the government, were English or had been trained in England. From the constitutional aspect, the English principles of the common law and equity were to prevail in Palestine only in cases where the local law did not seem to offer a solution. Nevertheless, the courts were most eager to adjudicate on the basis of English law. Thus, extensive legislation based on the English law (either codified or common law) was introduced into Palestine with regard to subjects such as companies, cooperative societies, banking, bills of exchange, bankruptcy, patents and copyright. In 1936 a Criminal Code Ordinance was introduced, which, together with legislation on criminal procedure and evidence, based the penal law in Palestine on the same principles obtaining in England. Additionally, the force of precedent – by which decisions of the Supreme Court were binding for all the lower courts- was introduced. One British institution which was not introduced was the jury system. The English administrators believed that the strife which tore the country asunder, with the ever-rising tension between the Jewish and Arab populations, made the system unfit for Palestine (as a matter of fact, the jury system had not been introduced in any of the British colonies).
The latter part of the Mandatory period, beginning in 1936, was marked by severe outbreaks of Arab hostilities against the Jewish population in Palestine, known as the Arab Revolt. At that time the attention of the administration was focused on security and defense measures. World War II and the Jewish effort to secure independence, which continued long after the war had subsided, stimulated a tremendous legal effort to regulate the economy and finance and further develop emergency-defense regulations. These culminated in the imposition of martial law over large areas of Palestine and for ever-increasing periods of time. In this regard mention has to be made of the Emergency (Defense) Regulations, 1945, which allowed the British “an impressive array of legal tools for detention, deportation, confiscation, censorship, demolition of houses, restraint of movement, food control, press control, money control, rent control and capital punishment.” (Yoram Shachar: History and Sources of Israeli Law, in Introduction to the Law of Israel, p.5.)
One exception to the general trend described above was the enactment of the Civil Wrongs Ordinance, 1944, which came into force in 1947. This Ordinance codified the law of torts and replaced the provisions of the Mejelle on the subject.
On the eve of the establishment of the State of Israel, the law was engaged to a large extent in emergency legislation. This legislation was directed at the activities of the Arab dissident population, which was bent on thwarting the UN resolution for the partition of Palestine into a Jewish state and an Arab state. On the other hand, the British Mandatory administration was at war with Jewish resistance groups, who strove to drive the British out of Palestine. The organized Jewish population, represented by its elected bodies and the Jewish Agency, was busy setting up the framework for the future army and other branches of government of the forthcoming State of Israel. At the same time, it endeavored to facilitate a massive movement of immigration of Jewish deportees and displaced persons from Europe, who had survived the Holocaust, and of Jews from Arab countries in North Africa and the Middle East.
The Law and Administration Ordinance –
As stated above, the first enactment adopted by the Provisional State Council was the Law and Administration Ordinance, 1948. The Ordinance empowered that Council as the legislative authority of the new state and provided for the smooth transfer of powers from the Mandatory authorities to the new administration. It also provided the legal basis for the declaration, by the Provisional State Council, of a state of emergency.
On May 21, 1948, a state of emergency was duly proclaimed, and a set of emergency regulations was drawn up to cope with the state of war in which Israel had found itself from the outset, when the neighboring Arab countries invaded Palestine and were advancing towards Jerusalem, Tel-Aviv and the Galilee. These emergency regulations covered a great deal of the economy and – needless to say – all the security measures, including the enlistment of all able-bodied young persons to the newly established Israel Defense Forces. In fact, Israel in its entirety was enlisted to the war effort. The regulations were valid for a period of three months, after which their validity was extended by legislation of the State Provisional Council, and, in time, by the Knesset, as the legislature was named in early 1949.
It is important to point out that the state of emergency, which was declared on May 21, 1948, is still in force as these lines are being written, though today its existence is based on the new Basic Law: the Government, which was enacted in 1992 and came into force in 1996.
Israel’s Quest for a Constitution
The Declaration of the Establishment of the State of Israel, in the section immediately following the proclamation of the establishment of the state, clearly expressed the determination of the founders that the duly elected bodies of the state should be instituted “in accordance with a Constitution which shall be adopted by the Elected Constituent Assembly not later than October 1, 1948.” Indeed, preparations for a constitution were initiated by the Jewish national organizations even before the state was proclaimed. However, it became very clear that a constitution would not be forthcoming. The reason for this, first of all, was the war for the existence of the state, which raged for many months following its establishment. The population was enlisted in the war effort, and thus a Constituent Assembly could not be elected by the date – October 1, 1948 – set out in the Declaration. Secondly, “the Ingathering of the Exiles” – the incoming flow of Jewish immigrants from all quarters of the world, especially from Europe and the Arab countries – and the attitude of the religious parties, who objected to any constitution other than the Torah, together made it necessary to seek a way out of drawing up a constitution. That way was found early in 1949 after the election of the Constituent Assembly. The first law considered by the newly-elected Assembly provided for a change in the name of the Constituent Assembly, and it thus became the “First Knesset.” The change, of course, was not a mere matter of semantics; it meant a departure from the initial determination to base the newly-established country on a democratic Constitution. That departure was explained at the time as resulting from the notion that the existing population of Israel ought not to impose its ideals on the coming generations; and therefore only when more Jewish immigrants came to the country – only then – would the time be ripe for drafting a Constitution.
A compromise was reached, whereby the Constitution would be drawn up chapter by chapter through the enactment of Basic Laws, which in time would be collected into one document and together form Israel’s Constitution. The initiator of that compromise was Member of Knesset I. Harari, and the resolution adopted by the Knesset on June 13, 1950 bears his name and is still considered binding. It was not until 1958 that the Basic Law: The Knesset, the first of Israel’s Basic Laws, was enacted, and it was followed, at a slow pace, by additional ones.
A modification occurred in 1992 with the enactment of the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty. These Basic Laws contained a “limitation clause,” which states: “There shall be no violation of rights under this Basic Law except by a law fitting the values of the State of Israel, designed for a proper purpose, and to an extent no greater than required, or by regulation enacted by virtue of express authorization in such law.” The “values of the State of Israel” mentioned in the limitation clause are those mentioned in the opening sections of both Basic Laws on human rights – “recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free,” in conjunction with the overall principles set forth in the Declaration of the Establishment of the State of Israel.
The language of the “limitation clause” is the basis for judicial review of legislation, since it clearly submits all legislation, which violates any of the human rights protected by the Basic Laws, to the review of the courts. The courts must then decide whether the particular law fits the values of the State of Israel, was enacted for a proper purpose, and whether the violation is proportionate to the benefits of the legislation. The Basic Laws, therefore, assume the effect of a Constitutional provision. The Supreme Court has indeed recently ruled, in a special panel of nine judges (one member dissenting), that the new Basic Laws are indeed part of the Constitution of Israel. We thus have a judicial proclamation of the Constitution, although generally a constitution is enacted by a constituent assembly.
In the case mentioned above, the Supreme Court was asked to declare a piece of legislation to be of no legal effect due to its violation of the right to property protected by the Basic Law: Human Dignity and Liberty. In that particular case, the Supreme Court did not declare that legislation null and void, but the judicial review of legislation has been finally decided and is today part of Israel’s legal legacy, in the same manner as in most democracies. The role of the Basic Laws protecting human rights in Israel’s constitutional law will be treated separately. At this point, it is to be noted that after a long period of wavering, Israel is now on the way to having a Constitution. At this moment human rights are the foundation of the forthcoming Constitution; it is only a matter of time until all the existing Basic Laws are united to form a Constitution.
In 1992 the Knesset adopted a new Basic Law: The Government, which replaced the Basic Law adopted in 1968. The new Basic Law introduced a direct election of the prime minister instead of the former system by which the prime minister and his cabinet were appointed by the Knesset in the English manner. The new Basic Law came into force in 1996. It caused a considerable change in the “rules of the game” by which Israeli politics were being handled. Under the old Basic Law, the government stayed in power as long as it enjoyed the confidence of the Knesset. Under the new Basic Law, if the prime minister is forced out of power – by only an absolute majority of the Knesset – the Knesset is dispersed and new elections must be carried out both for the Knesset and for the prime minister.
From the outset, the State of Israel was confronted with the tasks of survival: its physical existence depended on the outcome of the war which the neighboring Arab countries had waged on the new state. While the fighting was going on, masses of new immigrants were pouring into the country, a great many of whom had very little besides the clothes they wore. They had to be fed and housed, with the scant resources the state could muster. The economy was at its lowest, and sometimes food was distributed to the population almost directly as ships unloaded their cargo at the port of Haifa. Rationing was introduced so as to ensure the equal distribution of essential commodities such as food and clothing. Unsurprisingly, a “black market” flourished and a great deal of energy was spent regulating supplies and bringing racketeers to justice. This was hardly the time for legislative reform.
It was only after the fighting had subsided, early in 1949, that the armistice agreements were signed with Egypt, Lebanon, Jordan and Syria. Israel now set itself to the tasks of building a state. Early in 1949, elections for the Constituent Assembly were held. When convened – as has already been stated – the Constituent Assembly declared itself to be the First Knesset (Section 1 of the Transition Law, 1949). The same Law also provided for the election of the President of the state by the Knesset, and Chaim Weizmann became the first President.
The Law of Return
During the first years of independence most of the legislation was concerned with amendments to the Mandatory statutes, in order to adapt them to the new circumstances and the changing needs. The first major piece of legislation was enacted in 1950; it was The Law of Return, 1950, which guaranteed every Jew’s right to immigrate to Israel and to become an “oleh.” That law was complemented by the Citizenship Law 1952, which awarded Israeli citizenship to every oleh (olim also have the right to opt out) and regulated the issue of citizenship for Israel’s non-Jewish inhabitants. Another complementary Law was The Law of Entry, 1952, which regulated the issuing of visas and residence limits to non-Israelis.
The question “Who is a Jew,” for the purpose of The Law of Return, came up before the Supreme Court in 1962 in the case of Rufeisen – Brother Daniel – who was born Jewish but had converted to Christianity and joined a Catholic Order (H.C. 72/62 – 16 P.D. 2428). He petitioned the Court to have his nationality registered in the register of inhabitants as Jewish, since he felt he still belonged to the Jewish nation. The Court denied the petition, reasoning that, in Judaism, nationality and religion come together and cannot be separated.
The question came up again in 1968 in the Shalit case (H.C. 58/68 – 23 P.D.(2) 477) where a Jew and his non-Jewish wife demanded that their children be registered as Jewish, since they were brought up as such (but had not converted to Judaism). In a majority decision, the Court accepted the petition and the children were registered as Jews.
In 1970 the Law of Return was amended to include a definition of “Jew,” according to which a Jew was one who was born to a Jewish mother or had converted to Judaism and does not belong to another faith.
In yet another case (H.C. 264/87 – 43 P.D.(2) 727) the Supreme Court decided in 1987 that a person who had converted to Judaism need not necessarily have done so according to Orthodox Judaism. As these lines are being written, a Bill has been tabled in the Knesset to the effect that only Orthodox conversions would be recognized. That Bill has aroused wide-ranging criticism in Israel and especially abroad. A compromise is being fervently sought.
Reform of the Civil Law
It was only in the sixties that a major and formidable effort was undertaken to reform the then existing legislation, which, as we have seen, was mostly Mandatory and even Ottoman. A series of Laws was enacted in the field of civil law, which, step by step, replaced the provisions of the Ottoman Civil code, the Mejelle, by modern legislation, in keeping with the most modern trends in the western world. Some of the important laws that were enacted in the field of civil law are: Legal Capacity and Guardianship Law, 1962; Standard Contracts Law, 1964; Agency Law, 1965; Succession Law, 1965; Guarantee Law, 1967; Pledges Law, 1967; Bailees Law, 1967; Sale Law, 1968; Gift Law, 1968; Land Law, 1969; Transfer of Obligations Law, 1969; Movable Property Law, 1971; Contracts (Remedies for Breach of Contract), 1970; Hire and Loan Law, 1971; Contracts (General Part) Law, 1973; Contract for Services Law, 1974; and Insurance Contract Law, 1981.
The cumulative effect of these Laws was revolutionary: they constituted a severing of Israel’s ties with its previous legal heritage, which was English law sprinkled with Ottoman laws. Israel stood out at last as an independent nation, capable of formulating its own legal solutions adapted to Israeli society; at the same time, the new legislation aligned Israel with the most modern tendencies of the modern world. Together with these considerations, special efforts have been made to incorporate into Israel’s legislation, as much as possible, concepts of Jewish law.
The new civil legislation rendered the Ottoman Mejelle unnecessary, and in 1984 it was abolished, symbolizing the end of an era, which in fact had ended many years earlier.
Another departure from Israel’s historic legal past occurred with regard to its linkage to English common law and doctrines of equity, which were binding in Palestine by virtue of Section 46 of the Palestine Order-in-Council, 1922. That section provided for the application of the English sources of law only in cases of lacunae – i.e., whenever local law was silent on the matter at hand – and even then only to the extent that local conditions allowed. The Courts, however, applied English principles quite freely. It was only in the case of Kohavi v. Becker (11 P.D. 225) that the Supreme Court of Israel finally had the opportunity to settle a question which had come up before it but had not required adjudication – what effect, if any, did English precedents, laid down after the establishment of the State of Israel, have on the law of Israel? Justice Witkon said:
“To my mind, English precedents can no longer be binding for us, even if they were delivered before the establishment of the state. These precedents have great power to direct us and to persuade us, but they cannot be binding on our courts. Indeed we are free to deviate from them, either on the basis of the express provision of section 11 of the Law and Administration Ordinance, 1948, or on the basis of the mere fact that our courts now operate in a sovereign country which is no longer dependent on the adjudication of a foreign country.”
The Deputy-President of the Supreme Court, the late Justice Cheshin, said:
“It does not stand to reason that a sovereign state, having its own set of laws and its own legal system, should continue to be subjected to the rule of a foreign legal system and to the innovations which its courts produce on its legal thought, for the sole reason that in the past, when the two countries were closely linked, one of the countries suckled from various spheres of the law of the other country.”
Only in 1980, Section 46 of the Palestine Order-in Council, 1922, was officially and finally repealed, although by that time it had no real legal effect. The occasion was the enactment of the Statute entitled The Foundations of Law, 1980, which stated as follows:
“Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel’s heritage.”
A new controversy arose regarding the meaning and relevance of the phrase “the principles of freedom, justice, equity and peace of Israel’s heritage.” The Supreme Court was divided on the question whether the phrase allowed the introduction of the provisions of the Jewish law – that is, whether the question before the court should be decided according to Jewish law, or whether the principles referred to are those derived from the Jewish heritage that are also accepted universally, since the Bible is also a vital component of western civilization. As mentioned above, no decision was reached, since each of the opposing views was supported by only one of the judges – Justices Barak and Alon. The President of the Supreme Court, M. Landau, who presided over the bench, decided that the question did not require a decision in the particular case, and thus the tie remains unsettled to date.
When the State of Israel was established, it inherited the Mandatory Companies Ordinance, 1929, which was an almost exact replica of the English Companies Act, 1929. Many amendments have since been enacted by the Knesset. In 1983 a “New Version” was introduced, in Hebrew, to consolidate the law with its amendments, taking into consideration other pieces of legislation bearing on the matter. However, the basic notions of corporate law remained old-fashioned and unsuitable for a thriving modern economy. Several efforts were made to replace the old Ordinance and introduce a new companies law, but these efforts were not successful. Only recently a breakthrough occurred, when a draft prepared by Prof. U. Procaccia of the Hebrew University Faculty of Law proceeded to become a Bill. It is currently in the process of scrutiny by the Constitutional, Legislative and Judicial Committee of the Knesset, after having passed its first reading in the Knesset plenary. The final enactment is expected shortly.
In 1975 the Knesset enacted the Government Companies Law, which regulates the establishment and functioning of government companies. These control a significant part of the country’s means of production. Another development in corporate law was the enactment of the Amutot (Non-Profit Associations) Law, 1980, which replaced the Ottoman Law of Association, of 1909.
Codification of the Law
After the establishment of the State of Israel, the binding text of the Mandatory statutes incorporated into the Israeli legal system was their English version; the Hebrew and Arabic official translations were not conclusive. That situation was untenable. In 1952 a huge task was undertaken: the production of an authoritative Hebrew text of the statutes, in which all the amendments were to be incorporated. For this task, special committees were set up, headed by judges. The final text was to be authorized by the Constitutional, Legislative and Judicial Committee of the Knesset and published in the Official Gazette – Reshumot. Henceforth that “New Version,” as it came to be called, would be the only binding text of the law.
In 1964, as amendments to old Mandatory statutes and to Israeli laws proliferated, it became more and more of a tedious chore to produce an authoritative text of the original statute as amended from time to time. A procedure was therefore introduced whereby special committees were set up to draft a “Consolidated Version” of the Laws. The draft could consolidate several statutes, including a “New Version” of Mandatory legislation. In this manner, the laws became more amenable to those who had recourse to them.
A greater and far more ambitious project, which is still in the course of development, is the task of codifying the civil law of Israel. The Minister of Justice appointed a special committee – headed by the President of the Supreme Court, Professor Aharon Barak – whose aim is to incorporate and edit all existing civil laws into a single unified code, the Israeli Civil Code.
Reform of the Criminal Law
In the fifty years that have passed since the establishment of the State of Israel, a dramatic change has been effected in the criminal law. At the beginning, the Mandatory Criminal Code Ordinance, 1936, was the binding text. It was built along the lines of the English criminal law; indeed, one of the provisions of the Code was that for purposes of interpretation, reference was to be made to English law. This provision was abolished in 1972. A long series of amendments was enacted. The most outstanding of them included the following: The Penal Law Revision (Bribery) Law, 1952; The Penal Law Revision (State Security) Law, 1957; The Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963; The Penal Law Amendment (Bigamy) Law, 1959; The Penal Law Amendment (Prostitution Offenses) Law, 1962; and The Penal Law Amendment (Prohibited Games, Lottery and Betting) Law, 1964
. In the field of penology, the law was reformed radically. Thus, in 1950, the penalty of whipping was abolished; so was collective punishment (1964). The death penalty for murder was abolished in 1954. In that year, The Penal Law Revision (Modes of Punishment), 1954, was enacted, introducing the imposition of conditional sentences of imprisonment, and entirely overhauling the penal system.
In 1977, a “Consolidated Version” of the Criminal Code Ordinance was introduced – in Hebrew – and it replaced the Mandatory English version. In 1994, the Knesset enacted the Penal Law (Amendment No. 39) (Introductory Part and General Part), 1994, which entirely reformed the basic notions of the legal elements of crime and criminal responsibility. This Law was based on a draft prepared by Prof. S. Z. Feller and Prof. M. Kremnitzer, both from the Faculty of Law at the Hebrew University. A project currently being carried out seeks to review the text of the Penal law with regard to the particular offenses set forth in the law and to the penalties to which the offender is liable upon conviction.
Labor Law and Social Security
One of the impressive achievements of Israel’s legal system during the first fifty years of statehood was the emergence and development of labor and social security law. It began in the 1950s with Israel’s socialist agenda to enhance the workers’ lot and to bring the achievements of the labor movement and the workers’ unions into the lawbooks. Coupled with this interest was the need to regulate the welfare services given to the population, a great portion of which consisted of new immigrants who had come destitute from the refugee camps in Europe or from North Africa and the Middle East.
Upon its establishment, Israel inherited a meager crop of legislation on labor and social security. The whole field clamored for reform. A series of laws was enacted in the fifties, based to a large extent on standards designed by the ILO (International Labor Organization): Hours of Work and Rest Law, 1951; Night Baking (Prohibition) Law, 1951; Annual Leave Law, 1953; Apprenticeship Law, 1953; Youth Labor Law, 1954; Employment of Women Law, 1954. These laws were all intended to protect vulnerable persons in the work-place. Then came a series of laws intended to safeguard workers’ interests: Sick Pay Law, 1963; Severance Pay Law, 1963; Wage Protection Law, 1958; Employment (Equal Opportunities) Law, 1981; Male and Female Workers (Equal Pay) Law, 1964; Male and Female Workers (Equal Retirement) Law, 1987; Minimum Wages Law, 1987. Another series of laws dealt with organizing labor and labor disputes. Thus the Employment Service Law, 1959, set up labor exchanges; Labor Inspection (Organization) Law, 1954, provided for safety in the workplace; and the Settlement of Labor Disputes Law, 1957, was intended to deal with strikes and lock-outs in essential public services. One outstanding piece of legislation was the Collective Agreement Law, 1957, which consolidated the power of the large labor unions and employers’ organizations to sign collective agreements which would be binding for future employees and employers as well.
In 1954 the National Insurance Law was enacted, providing for the payment of pensions to the elderly and to victims of work accidents as well as of allowances for mothers. A National Insurance Institute was established, setting up an impressive array of institutions for the rehabilitation of handicapped persons, professional training and financial care for old-age invalids. The National Health Insurance Law, 1994, empowered the National Insurance Institute to collect the dues for financing the sick funds to which all the population is by law obliged to belong (each person selecting the individual fund of his choice).
The disruption of life caused by a growing number of labor disputes and the special nature of labor relations were the basis upon which the labor tribunals were set up by the Labor Courts Law, 1969. The Law instituted a two-tier system: Regional Labor Tribunals and a National Labor Tribunal. The tribunals are headed by career judges. Like regular judges, they are appointed by the President of the State, who is advised on the matter by the Judges Election Committee. Alongside the judge are panels of laymen – representatives of the public – who represent employees and employers. They are appointed for a term of three years by the Ministers of Justice and Labor, after consulting representative employees’ and employers’ organizations.
The regional labor tribunals sit as courts of first instance in matters of labor relations and disputes arising from an employee-employer relationship. They also decide on disputes between a citizen and the National Insurance Institute, and sit in criminal cases dealing with offenses related to specific labor legislation. The National Labor Tribunal hears appeals of the Regional Tribunals’ decisions and sits as a court of first instance in specified matters.
The Labor Tribunals are generally considered to be a great success in settling labor disputes and certainly in reviewing the decisions of the National Insurance Institute. Their greatest achievement was the development of labor law and the establishment of an Israeli common law in labor matters.
The Supreme Court
An overview of the development of the legal system of Israel cannot by any measure ignore the story of the Supreme Court, which today plays a distinctive role in Israeli society and stands out as one of the most important institutions of the state.
Basically, the Supreme Court stands at the head of a three-tier system of adjudication; under it are the District Courts, and at the lowest level are the Magistrates’ Courts. Under the Basic law: Judicature, every decision of a court sitting in first instance is appellable to the higher court. Thus the Supreme Court sits as an appellate court on decisions which the District Courts delivered as a court of first instance, and – by special leave – also sits as appellate court on decisions made originally by Magistrates’ Courts. In this capacity, its rulings on legal norms are binding for all the lower courts, according to the principle of the binding precedent which applies in Israel, following the Anglo-American tradition. The greater achievement of the Supreme Court occurred in its other capacity, that of High Court of Justice. In this capacity, the court reviews administrative action and acts as an arbiter between the individual and the state, thus safeguarding the rights of the individual and imposing the rule of law.
As a matter of fact, the powers of the Supreme Court as set out in the statute have not changed basically from what they were during the time of the British Mandate. What changed was the gradually broadening scope of both the review of administrative action and the petitioners legally permitted to apply for redress of public grievances. Thus, members of the Knesset, law professors and civic bodies are generally allowed to present their petitions in matters of general public interest, both when the government has acted and when it has refrained from action. It is in this manner that the Supreme Court entertained a petition against the Prime Minister for not dismissing a Minister and a Deputy Minister against whom criminal charges had been brought. Similarly, the Supreme Court has entertained a petition against the Attorney General for refraining from bringing charges against banks and bankers who were responsible for a disastrous collapse of banking shares.
In its capacity as a High Court of Justice, the Supreme Court has placed itself as a guardian of civil liberties. Furthermore, the Supreme Court acts as a constitutional court in the sense that it imposes the rule of law on the law-giver, the Knesset, and that it has ruled that laws which do not conform to provisions of a Basic Law would have no legal effect, by reason of unconstitutionality. It is true that the Court is considered a bastion of the rule of law. Some of its decisions have aroused public controversy, and in certain political spheres proposals have been put forth to curtail the powers of the Supreme Court. However, the court generally enjoys deep respect and prestige among large parts of the population and it seems very unlikely that any change could be effected in its present position.
The Attorney General
The position of the Attorney General is closely linked with the steep climb in the public’s esteem towards the Supreme Court since the early days of the state. The Attorney General is a professional jurist, appointed by the Government for an unlimited duration, who heads the public prosecution in criminal matters. He or she, through their assistants, represent the state in civil litigation. The Attorney General is also the chief legal advisor to the Government and its institutions, and his or her legal opinion binds the Government. That is how the Attorney General upholds the rule of law within the government framework. His or her actions – or defaults – may be reviewed by the High Court of Justice. The broadening of the scope of review by the Supreme Court has had considerable influence on the position of the Attorney General in the public eye, and many grievances of the public are addressed to his or her office as a matter of daily routine.
The State Comptroller
The office of the State Comptroller was established in 1949. In 1988 the Basic Law: The State Comptroller was enacted. Section 2(a) charges the Comptroller with the duty to “carry out inspection of the assets, finances, undertakings and administration of the state, of government offices, of every enterprise, institution or public corporation of the state, of local authorities, of bodies or other institutions subject to inspection by this Law.” The office of State Comptroller is the most effective instrument for review of public administration.
The State Comptroller is elected by the Knesset for a tenure of five years, which may be renewed once, and is empowered to request all information from the public body being audited. The Comptroller’s reports are presented to the Knesset, where they are discussed by its Public Audit Committee. The Comptroller thus serves as the long arm of the Knesset for the efficient review of the administration and as a main source of information necessary for the Knesset’s control over government activities.
The State Comptroller also serves as the Public Complaints Commissioner (Ombudsman), and decides authoritatively on thousands of complaints from citizens against state and governmental agencies, government corporations and local authorities. In addition, the State Comptroller inspects the finances of the political parties and their campaign accounts. The publication of the yearly Comptroller reports is covered extensively by the media. The State Comptroller enjoys immense public respect.
The Bill of Rights
In June 1950, the Knesset adopted the Harari Resolution according to which Israel’s Constitution would be built up by the Knesset, chapter by chapter, in the form of Basic Laws. These, according to the decision, would eventually be bound together into one document, the Constitution. As has been already described, the first Basic Law, dealing with the Knesset, was enacted in 1958. After an interval, additional chapters were enacted; a Bill of Rights was side-tracked. One of the main obstacles was the objection of the religious parties to an equality clause, which could jeopardize legislation giving preference to religious laws. This would be problematic, for example, in matters of marriage and divorce, governed in Israel by religious law, which gives men priority over women. The same goes for laws imposing Sabbath observance or those affecting the import and sale of non-kosher meat.
As early as 1949, however, the Supreme Court ruled that there are in existence natural rights, which, though not written in the law-books, are recognized by the courts. The specific case dealt with the right of a person to engage in any occupation he chooses, unless prohibited expressly by legislation. That case was later expounded and the Court referred to those rights as stemming from the character of the State of Israel as a freedom-seeking democratic country, where the courts interpret the laws and review administrative action in light of these fundamental rights. Additional rulings of the Supreme Court emphasized the legal existence of freedom of expression and religion. Nevertheless, supremacy was always given to the enactments of the legislature, even if they were unjust.
In the late sixties a special sub-committee was set up in the Knesset to prepare a Bill of Rights – Human Rights of the Citizen. The Bill was brought to the Knesset’s agenda in 1973; it passed the first reading but did not proceed any further. In the 1980s an additional attempt was made in the same sub-committee of the Knesset. A new draft was prepared, but it did not win substantial support in the Knesset and the attempt failed.
Early in the 1990s a comprehensive draft Bill of Rights was prepared at the Ministry of Justice, under the direction of Dan Meridor, then Minister of Justice. This draft tried to implement the lessons of the previous attempts. It followed the Canadian Charter of Rights and Freedoms, which was part of the Constitution Act, 1982, and which included a “limitation clause” applying to all the rights and freedoms set out in the Charter. The Charter gave expression to the notion that human rights are not absolute, and they are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Still, the Government would not approve the draft, owing to the objection of the religious parties upon which the coalition depended. In 1992, Member of Knesset Prof. Amnon Rubinstein presented to the Knesset, as private member’s bills, parts of the Justice Ministry’s draft Bill. The first section dealt with human dignity and liberty, the second with freedom of occupation; other parts failed to pass the threshold of enactment. On March 3, 1992, the Basic Law: Freedom of Occupation was enacted; a fortnight later the Basic Law: Human Dignity and Liberty, passed its third reading in the Knesset plenary and became law. On March 9, 1994, the revised text of the Basic Law: Freedom of Occupation became law. This text included the “Basic Principles” of the early 1990s Ministry of Justice draft, referring to the values of the State of Israel enunciated in the Declaration of the Establishment of the State of Israel.
The enactment of these two Basic Laws was described by the President of the Supreme Court, Judge Aharon Barak, as a “constitutional revolution.” The reason for the use of such a radical expression was that the Knesset had, for the first time, set limitations for itself with regard to the subject matter of the laws it was empowered to legislate (prior to that, such limitations had existed only with regard to the form and procedure of legislation). From now on, the Knesset could limit human rights only “by a law fitting the values of the State of Israel, designed for a proper purpose and to an extent no greater than required…”
As has been mentioned before, the two Basic Laws have been declared by the Supreme Court to be of basic constitutional effect. They are the basis for judicial review of legislation. Although not all the fundamental human rights are protected to date, the laws have provoked a tremendous echo in the public and raised widespread enthusiasm for the cause of human rights. There is great confidence that the additional Basic Laws protecting more and more fundamental human rights, shall be enacted eventually. These, together with the existing Basic Laws, supplemented by the Basic Law: Legislation, which has yet to be enacted, will set the scene for the completion of the Constitution.
This article has described, very summarily, the development of the law in Israel in the fifty years of its existence. It is a fascinating story, unparalleled elsewhere in the world. Israel started with a muddle of legal systems: Ottoman laws mingled with statutes emulating English legislation and the substance of English common law and principles of equity. Out of that conglomerate gradually emerged a singular legal system. Says President Barak: “…the Israeli legal system is part of Western legal culture, but while close to the common law family, belongs fully neither to it nor to the Romano-German family. Israeli law is an independent system or family.” Israel has succeeded in crystallizing its legal system through crises, catastrophes and wars. Its legal system is now at a crossroads in its development: how will the state’s combined character as “Jewish and democratic” affect its functioning? Does “Jewish” stand in contradiction with “democratic,” or does it complement it? Will the Supreme Court be finally recognized as the Constitutional Court, or will a special constitutional court be established on the European model? These issues and others will have to be determined in the coming years. But the foundations for a sound development of the legal system have been laid. They are solid. Two factors have contributed to the strength of these foundations: the legislature (Knesset) advised by the Ministry of Justice and the legal academic society – and the judiciary, especially the Supreme Court. With these contributors, Israeli law is “in good hands”; they will not fail.