The Knesset is currently debating the anchoring of the principle of equality in the Basic Laws of the State of Israel. The Zulat institute seeks to work toward the finalization of a constitution through the enactment of Basic Laws and therefore supports promoting the legislation of Basic Law: Equality.
The right to equality is recognized as a “first among equals” and key right, since without it there is no point or raison d’etre for all other human rights. The State of Israel is committed to guaranteeing the right to equality of all individuals within its boundaries and subject to its jurisdiction and to prevent discrimination against them on grounds such as race, sex, language, national origin, or religion. Equality protects the public from the arbitrariness of government, and no regime can be considered democratic without it.
Equality is a basic universal principle. The first article of the Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948, states that all human beings are born free and equal in their value and rights. In other words, the right to equality is one of the cornerstones of any democratic regime and must therefore be enshrined in a separate Basic Law and not as an amendment to a Basic Law. Consequently, it is essential to establish a separate chapter in the emerging Israeli constitution that befits the central constitutional status of the right to equality in a democratic regime, a Basic Law that would succeed in calibrating the balance of Israel as a Jewish and democratic state after the enactment of the Nationality Law and that will apply to all other Basic Laws.
As stated, Zulat supports the position that the right to equality must be enshrined in a separate Basic Law and not as an amendment to an existing Basic Law. At the same time, since dozens of bills to enshrine the principle of equality in a Basic Law have already been rejected or not advanced, Zulat proposes at this stage to strengthen the right to equality in Knesset legislation through an obligation to address it in legislative proceedings. Our proposal seeks to require all explanatory notes attached to draft bills, whether submitted by the Knesset or by the government, to address the impact of legislation on the equality of specific groups (according to race, sex, language, national origin, or religion). Moreover, when a Knesset committee drafts a bill, it will be required to solicit an evaluation of its impact on equality. To the extent that the draft bill is found to violate equality, this will be noted in the explanatory notes.
The position papers we submitted discuss, among other things, three constant points of conflict with the principle of equality that are unique to the State of Israel:
A) inequality resulting from the absence of separation of religion and state, in particular gender inequality;
B) inequality resulting from the very definition of Israel as a Jewish state amid nonrecognition of the right to constitutional equality of non-Jews;
C) inequality resulting from the occupation and settlement of the Palestinian territories.
These points of conflict notwithstanding, 13 Basic Laws have been enacted to date that make no reference to the right to equality, with the exception of the principle of equal choice under Basic Law: The Knesset. The omission of the principle of equality from Basic Laws enabled broad consensus about their enactment but damaged the core of Israel’s regime system. Moreover, the provision under Basic Law: Human Dignity and Liberty preserving the validity of previous legislation upheld the powers conferred on religious institutions regarding matrimonial life, thus leaving women without protection of their constitutional human rights in matters of personal status.
Recognizing that this was a conscious choice of the Knesset, the Supreme Court rejected the interpretation anchoring equality as an independent constitutional principle. Recognizing that there can be no democratic regime without equality, however, the Court partially enshrined the right to equality as the right to human dignity anchored in Basic Law: Human Dignity and Liberty. In addition, there exist ordinary law provisions (not Basic Laws) that anchor the principle of equality and the prohibition of discrimination.