(Israel Twitter)Jewish and Democratic State – Is the definition of the nature and character of the State of Israel, as the Jewish nature was first defined within the Declaration of Independence of 1948, and the "Democratic" character, was first officially added to the "Jewish" nature, in the amendment to the Basic Law: the Knesset that was passed in 1985 (amendment 9, clause 7A).
The characteristics of the state Israel as well as its Declaration of Independence identify Israel as "A Jewish Nation state", hence, a state that is influenced by its affinity towards the Jewish heritage and Tradition. These characteristics can be found in Israel's Emblems (See, Emblem of Israel, wherein the Menorah of the Temple is shown, as well as the Flag of Israel wherein the Star of David appears), as well as its official institutions (seeing that there is a Religious Services Ministry, as well as the status of the Chief Rabbinate of Israel), and in its legislations (see, Law of Return, Israeli nationality law, and the Status of the World Zionist Organization - Jewish Agency for Israel law).
The Jewish and Democratic Nature of the State of Israel
The Jewish nature of the state of Israel was outlined already in Israel's Declaration of Independence, as it was read during the Proclamation ceremony in 14 May 1948. The document defines the state of Israel as "A Jewish State in Eretz-Israel [land of Israel]" , while the word "Democratic" is absent throughout the entire document. However, the document does obliges to:
"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" .
and appeals to:
"the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions" .
Since no constitution was passed, and the Supreme Court ruled that the Declaration of Independence document is a guiding principles that expresses the vision and the credo of the people regarding the character, the goals and values of Israeli society and its state , the need to legally define the Jewish nature and Democratic character of the State of Israel arose. In Eleventh's Knesset elections (and in many other occasions), religious ideas were brought up that were aimed at canceling the democratic character of Israel, and replacing it with a theocratic Halachic state, and thus in the eleventh Knesset session, the amendment to the Basic Law: the Knesset was passed (to become effective as of the Twelfth Knesset), that stipulated that:
"7A. A candidates list shall not participate in elections to the Knesset, if the goals or actions of the list, expressly or by implication, include one of the following:
(1) negation of the existence of the State of Israel as a Jewish and democratic state;
(2) incitement to racism;
(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel."
—Basic Law: The Knesset (1985)
Since then the definition of "a Jewish and Democratic State" was used in additional Basic Laws of Israel: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, that were legislated in 1992, and amended in 1994. These laws specifically states that:
"1. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state."
—Basic Law: Human Dignity and Liberty
"2. The purpose of this Basic Law if to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state."
—Basic Law: Freedom of Occupation (1994)
The boundaries of the definition of "a Jewish and Democratic State" are a subject to a public discourse in Israel, in context of the relation between state and government. Already in 1994, the question whether Israeli Government (i.e. the Cabinet) is permitted to limit the import of Non-Kosher meat, despite the Basic Law: Freedom of Occupation arose. Initially, the Israeli High Court of Justice ruled that that the government is not permitted to limit such import of non-Kosher meat. However, after the Knesset passed some amendments to the basic laws, the limit was included.
Another debate was on the issue of whether the state is permitted to limit the leasing of national land in certain areas of Israel, as for only Jews. The limitation initially seemed to be in contradiction with the Democratic character of Israel, but some have argued that it is essential in order to preserve the Jewish nature of the State of Israel.
The Diversity of Israeli Society has produced few main approaches to the definition of "a Jewish and Democratic State", which the current commonly accepted approach is the combination of all of them: "A Torah State" (Halachic state), "National-Religious State", "National Culture State", "The State of the Jewish People", "The Jewish State", and "The Jewish State and the State of all its citizens".
Israeli High Court of Justice's commentary
The Fifteenth Knesset again amended the "Basic Law: The Knesset", in order to enforce the limit not only upon a party of candidates list but also upon each individual, separately:
"7A. A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following: (…) (1) negation of the existence of the State of Israel as a Jewish and democratic state; (…)"
—Basic Law: The Knesset (1999)
Towards the Elections for the 16th Knesset, the Israeli Central Elections Committee has disqualified the candidacy of Azmi Bishara and of Ahmad Tibi based upon this law. The petition to disqualify right-wing activist Baruch Marzel was rejected. As a result of this rejection, petitions were submitted to the High Court of Justice against all three rulings of the Central Elections Committee. Therefore, the clause within the Basic Law: The Knesset, was now a subject to a thorough judicial examination by the High Court of Justice , and eventually the High Court of Justice had turned around the former two ruling by Central Elections Committee, and approved the latter, hence, all three candidates were permitted to participate in the elections.
Regarding the meaning of the definition of "A Jewish and Democratic State" in this section of the law, then President of the Supreme Court of Israel, Aharon Barak, wrote that a narrow interpretation should be given to it, since it limits a basic right, in contrast to the broader interpretation that should be given to laws concerning Human rights.
Concerning the minimal interpretation of "a Jewish State", Justice Aharon Barak ruled that:
"What, then are the 'core' characteristics shaping the minimum definition of the State of Israel as a Jewish State? These characteristics come from the aspects of both Zionism and heritage. At their center stands the right of every Jew to immigrate to the State of Israel, where the Jews will constitute a majority; Hebrew is the official and principal language of the State and most of its fests and symbols reflect the national revival of the Jewish People; The heritage of the Jewish People is a central component of its religious and cultural legacy".
—Aharon Barak 11280/02
According to Chief Justice Barak the minimal definition of "a Democratic State" is:
"Recognition of the sovereignty of the people manifested in free and egalitarian elections; recognition of the nucleus of human rights, among them dignity and equality, the existence of separations of powers, the rule of law, and an independent judiciary system"
—Aharon Barak 11280/02
"A list of candidates or a candidate may not participate in the elections if the cancellation or denial of these characteristics is central and dominant among their ambitions and activities; and they act decisively to realize these ambitions; and provided all can be persuasively, clearly and unequivocally proved by the established evidence. "
—Aharon Barak 11280/02
Chief Justice Barak pondered whether every candidates list objecting the existence of Israel as a Jewish and Democratic State should be disqualified, or a "Probabilistic standard" should be adopted, wherein according to this standard, a candidates list may be disqualified only if there is a real chance that it will actually succeed in promoting its goals that are in contradictory to the nature of Israel as a Jewish and Democratic State. Eventually, he left that question open for future judicial debate, stating that "it requires more review".