Anchoring the Right to Equality in a Basic Law to Uphold Israel’s Democratic Regime

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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.

>> Click here to read the position paper for the 13 September 2021 meeting

>> Click here to read the position paper for the 30 September 2021 meeting

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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.