Friday, January 23, 2009
Israeli Report on Human Rights to the U.N. Committee on Human Rights Art. 18. Freedom of Religion and Conscience (April 9, 1998)
2 June 1998
|HUMAN RIGHTS COMMITTEE|
UNDER ARTICLE 40 OF THE COVENANT
532. The State of Israel was founded as a home for the Jewish people, in which freedom of religious worship and conscience would be guaranteed to members of all faiths. The full fabric of the relationship between religion and State in Israel is quite labyrinthine. History, political expediency, party politics, the lack of a constitution which specifically deals with freedom of religion, and the broad power of the Knesset to legislate in religious matters have resulted in a patchwork of laws and practices that are not easily susceptible to generalization. Although the Declaration of Independence defines Israel as a "Jewish State", and the recent Basic Law: Human Dignity refers to a "Jewish and democratic State", there is no established religion in Israel, properly so-called. Nor, however, does Israel maintain the principle of separation between matters of religion and the institutions of Government. Rather, the law and practice in Israel regarding religious freedom may best be understood as a sort of hybrid between nonintervention in religious affairs, on the one hand, and on the other hand the interpenetration of religion and Government in several forms, most notably by legislation establishing the jurisdiction of religious courts of the different faiths in specified matters of "personal status"; by government funding of authorities which provide religious services to several of the religious communities; and by a series of legal institutions and practices which apply Jewish religious norms to the Jewish population. While it may be said that Israel has been quite successful in guaranteeing the freedom of religious practice and the use of sites holy to the three monotheistic faiths, particularly for the non-Jewish communities, it is more difficult to claim that "freedom from religion" is fully protected, particularly for the Jewish population.
Historical background: organization of the religious communities
533. The relationship between religion and State in Israel is to a great extent an outgrowth of the regime instituted during the Ottoman period and maintained during the British Mandate. The Ottoman order was grounded in a social structure in which homogeneous religious minority communities existed within a Muslim society. These non-Muslim religious communities, called millets, were led by religious dignitaries who were responsible to the Ottoman Government, and generally enjoyed a fairly high degree of independence in managing their communal religious affairs.*[One noteworthy exception in this regard was the Greek Orthodox Patriarchate. Following the death of the reigning Patriarch in the 1870s, internecine conflict surrounding the election of his successor developed into prolonged rioting and violence. To help restore order, the Ottoman Grand Vizier promulgated in 1875 an ordinance, which was actually a lengthy telegram, setting out, among other things, the procedures for electing the new Patriarch. This conflict over succession of a deceased Patriarch repeated itself in the 1930s, during the British Mandate, resulting in two additional Mandatory ordinances regarding the election of the Patriarch and the management of the Greek Orthodox Church. These ordinances have never been repealed or superseded, and thus, somewhat anomalously, remain part of the law of the State of Israel. L.C.A. 688/91, S.B.C. Establishment Inc. et al. v. Greek Orthodox Patriarch of Jerusalem (Takdin - S.Ct. 91 (2), p. 2,797 (noncompliance with Ottoman and Mandatory ordinances regarding election of the Greek Patriarch may be grounds for disqualifying the Patriarch as a proper party in a lawsuit).] Muslim law (Shari'a), which was one of the three branches of the Ottoman legal system, applied to all questions of personal status involving Muslims, including marriage, divorce and succession. The courts of the recognized non-Muslim communities were granted judicial autonomy in matters of personal status for persons who belonged to their community. The jurisdiction of these community courts depended on the scope of rights granted to the community in question, which varied. In general, non-Muslim communities were granted jurisdiction in matters of marriage, divorce and maintenance, as well as the power to regulate their internal affairs, such as education and charitable institutions. Certain communities also had jurisdiction in matters of succession. Ottoman law did not apply to foreign nationals who were subject to the consular courts.
534. The British Mandatory authorities adopted the Ottoman system and kept it largely intact: the applicable law in matters of personal status was the religious law of the community to which the individual belonged, and jurisdiction lay with the religious courts of that community.*[Under the British Mandate, the recognized communities included the Eastern (Orthodox), Latin (Catholic), Gregorian Armenian, Armenian Catholic, Syrian (Catholic), Chaldean (Uniate), Greek Catholic Melkite, Maronite, Syrian Orthodox, and Jewish (Knesset Israel). Palestine Order in Council, 1922, as amended in 1939, Second Schedule. As under the Ottoman system, the Muslim population was not defined as a "recognized community"; this difference in appellation did not impair the power of Muslim courts to rule in matters of personal status involving Muslims.] Muslim courts were given jurisdiction with regard to those foreign nationals whose national law made them subject to Muslim religious jurisdiction, as was the case under the Ottoman system. Matters of personal status affecting all other foreign nationals were handed over to the newly established District Courts, unless the foreign national consented to the jurisdiction of a religious court.
535. One of the principal problems of the Ottoman-Mandatory system was that it largely did not provide for persons who belonged to none of the recognized communities, either because they espoused no religion or disavowed the one into which they were born, or their religion was not practised in the country, or their religion was practised but their community not officially recognized. Such persons were deprived, among other things, of the right to marry unless they adopted the religion of a recognized religious community.**[The British Government made an initial attempt to deal with this problem in 1939 by adding article 65 A to the Palestine Order in Council, under which "provision may be made by ordinance for the celebration, dissolution and annulment of marriages of persons neither of whom is a Muslim or a member of a religious community and for the granting by the courts of orders or decrees in connection with the marriages of such persons, their dissolution or annulment." No implementing legislation, however, was ever enacted by the Mandatory authorities.]
536. Following the establishment of the State of Israel, the Knesset maintained the three underlying principles of the status quo: religious law in matters of personal status, communal jurisdiction and preferential treatment of foreign nationals. As discussed in more detail below, the principal change that occurred following independence was the subsuming of Jewish communal religious institutions into official State bodies, with authority over the entire Jewish population, and the piecemeal enactment into legislation of certain religious practices under Jewish religious law (Halakha). Three additional religious communities have been recognized - the Druze (in 1957), the Evangelical Episcopal Church (in 1970) and the Baha'i faith (in 1971). Several other religious communities are not officially recognized - Anglicans, the Church of Scotland, Lutherans, Unitarians, Baptists, Quakers and others - and thus no local religious tribunal has jurisdiction over their members in matters of personal status. This lack of official recognition does not affect the ability of these communities to practise their religion freely or to maintain communal institutions. In certain ways these smaller, unrecognized communities are freer for their lack of official status, not being subject to regulation in any matter relating to religious practice or law. The principal consequence of non-recognition is that they do not receive government funding for their religious services, as do many of the recognized communities. Their institutions do, however, receive various tax benefits and exemptions.
537. The Muslim community. During the Mandatory period, the Supreme Council for Muslim Religious Affairs was established to manage Muslim matters, including the control of wakf affairs (wakf: property, including religious sites, held in trust for the benefit of the Muslim community or individuals) and Muslim courts. The members of the Supreme Council were initially elected, and then for a brief period were appointed by the British High Commissioner. Following a period of violent unrest in 1936-37, wakf matters were removed from the control of the Council and transferred to a special committee appointed under the Mandatory Defence Regulations (Muslim Charities), 1937. Upon the establishment of the State, the Supreme Council and the special committee ceased to function and the Muslim community was left without a religious organ or communal religious institutions.
538. The Muslim religious courts were reestablished by legislation in 1961. These courts have exclusive jurisdiction in matters of personal status over all Muslims, including foreign nationals who are subject to the jurisdiction of Shari'a courts under their national law. In fact, the scope of powers of the Shari'a courts is broader than all other religious courts in Israel, a vestige from the Ottoman and Mandatory periods. As organs of the State, the Muslim courts are funded through the Ministry for Religious Affairs; its judges (kadi) are State employees, appointed by the President of the State upon the nomination of a nine-member committee which parallels the selection committee for judges in the rabbinical and civil courts. The terms of office for kadi mirror those of judges in the other court systems, and are similarly aimed at ensuring judicial independence.*[Terms of judicial tenure, and judicial independence generally, are discussed under article 14 above.] In matters of personal status, the Shari'a courts apply Muslim law as consolidated in the Ottoman Law of Family Rights of 1917, with modifications deriving from Israeli legislation in specific matters. While the Shari'a courts enjoy substantive independence in deciding the cases before them, they may be said to suffer from two principal problems. First, the law does not require that kadis have legal training, or any minimum level of education, as a condition for appointment, resulting in a bench of uneven quality. In addition, the Muslim religious court system has not received adequate government funding to maintain an efficient level of judicial administration. Efforts to remedy these problems are discussed below.
539. The Israeli Government, which assumed the powers of the British High Commissioner under the 1937 regulations mentioned above, has not used its powers to reconstitute the special committee for management of wakf affairs. Rather, under the Absentees' Property (Amendment No. 3)(Release of Charity Property and its Use) Law, 5725-1965, ownership of wakf property has passed to the Custodian of Absentee Property. The Law requires the setting up of a committee of trustees for each of the Muslim communities in Tel-Aviv-Jaffa, Ramle, Lod, Haifa, Acre, Nazareth and Shfar'am. These committees are not elected, but appointed by the Government. The law empowers the Custodian to release wakf property and to transfer it to the trustee committees, which are directed by the Law to manage the property and use its income on behalf of the Muslim population for educational grants, professional training, health, religious studies, maintenance of religious rites or customs, aid to the poor, and other purposes sanctioned by the Government. The income from wakf property not transferred to the trustee committees must nevertheless be used only for the above purposes. Wakf properties in Jerusalem - including the Temple Mount, holy to Muslims and Jews alike - are not subject to the above arrangement. Rather, they continue to be managed by the Jerusalem wakf committee, which was appointed by the Jordanian Government until the formation of the Palestinian Authority.
540. Apart from the Jerusalem wakf, religious services in the Muslim community are generally maintained and funded locally by residents of the towns and villages, with some funding from the Government, which pays the salaries of the prayer caller (muezzin) and clerical leader in many towns, and also distributes funds for repair and maintenance of mosques, graveyards and other sites of religious import.
541. The Christian communities. Compared to the other religious communities in Israel, the Christian communities maintain the highest degree of independence in managing their affairs. With the exception of the Greek Orthodox Patriarchate, as discussed above, the 10 recognized Christian communities have no statutory provisions regulating their internal constitution, as none of them has applied either to the British High Commissioner or to the Israeli Government, under the Religious Communities Ordinance, for confirmation of their rules of organization. However, religious marriages between Protestants, whose communities have not been "recognized", are celebrated, registered and recognized by the relevant government agencies. While the judgements of the religious courts of the recognized communities have the same status and force as any judgement issued by the civil courts, the organization and activity of the Christian courts - unlike their Muslim and Druze counterparts - are not provided for in Israeli legislation, but are wholly an internal matter for each Church. Some of the Christian communities in Israel are controlled and directed by their higher religious authorities in Arab countries; the Government has consistently maintained a policy of not intervening in such control, and allows visits by religious figures across the border to enable these communities to manage their affairs.
542. The Christian communities receive a minimal amount of funding from the Government for repair and maintenance of churches, graveyards and other religious sites.
543. The Druze community. In 1957 the Druze community applied for and received recognition as a religious community from the Minister for Religious Affairs. The community is headed by a Religious Council appointed by the Minister for Religious Affairs, and has its own system of religious courts, established under the Druze Religious Courts Law, 1962. These courts have exclusive jurisdiction in matters of marriage and divorce of Druze, as well as in matters relating to the creation and administration of Druze religious trust charities. In other matters of personal status, the Druze courts have jurisdiction by consent of the parties. The Government has undertaken recently to increase significantly the amount of funding directed towards religious services for the Druze community. In 1997, the total amount of funding will reach approximately NIS 8 million ($2.4 million), as part of a much larger funding programme for the Druze and Circassian communities generally, which is discussed under article 27.
Funding of non-Jewish religious services
544. In comparison with funding of Jewish religious institutions, the nonJewish communities are rather severely undersupported by the Government. The Muslim community, for example, which comprises roughly 16 per cent of the general population, received in 1996 an amount equal roughly to 2 per cent of total funding for religious services by the Ministry for Religious Affairs.
Table 14. Funding of religious services to nonJewish and Jewish sectarian communities (in thousands of shekels), 19941996
Type of funding
|Development of religious sites|
|Muslim religious services|
|Druze religious services|
|Christian religious services|
|Samaritan religious services|
|Karaite religious services|
a/ In 1995 and 1996 an extra NIS 640,000 were added to the operating budget of the religious courts for computerization and rental fees.
545. The problem of underfunding has perhaps been greatest in the Muslim and Druze communities, for two reasons: their religious courts are State organs, and thus rely on Government funding for their operation, and, unlike most of the recognized Christian communities, they do not receive substantial support from a central religious organ, either abroad or within Israel. The Ministry of Religious Affairs has recognized the need to improve the level of funding for religious matters to the non-Jewish communities. In August 1995, the Ministry published a detailed plan, entitled "One Law", which set out to achieve gradual equality in the services given to the non-Jewish and Jewish communities, both by substantial increases in funding and by institutional reforms. For the Muslim community, the plan includes, among other things, the establishment of a national Muslim Religious Council, improvement of terms of employment of Muslim clergy who are employed by the State, substantial increases in funding to Muslim holy places, establishment of an organization that would handle all matters relating to the annual pilgrimage to Mecca (haj) by Muslim Israeli citizens, establishment of a centre for development of religious services and structures for the Muslim community, improvement of physical plant and computerization of the Shari'a courts, adding more kadi positions, establishment of a code of ethics for kadis, and an amendment of the Kadis Law, 5721-1961 to require legal or other academic training as a minimum requirement for appointment of kadis. For the Druze community, the plan included the addition of two kadis, one of whom would serve as the director of the Druze religious courts, finding new quarters for the Druze courts and computerizing them, and establishing a Druze religious council which would manage the religious affairs of the Druze in Israel. For the Christian communities, the plan included the participation of the Ministry for Religious Affairs in the cost of repairing certain Christian holy sites, churches and graveyards. The recommendations of the above plan have been implemented only partially. Funding for religious services to the Muslim and Druze communities has been increased, some 50 new positions have been filled for clergy and administrative staff, and the budget for repair of religious buildings has also been augmented. In particular, the allocations of the Ministry of Religious Affairs for development of religious sites and buildings in the Druze and Circassian communities were increased from NIS 910,500 (approx. $300,000) in 1995 to NIS 7.7 million (approx. $2.41 million) in 1996, and a projected NIS 8.4 million (approx. $2.5 million) in 1997.* [The Circassian community, which is grouped together with the Druze community for administrative purposes, essentially consists of one town, Kfar Kama, which received NIS 500,000 in funding from the Ministry of Religious Affairs in 1996, and a significant portion of the population of another town, Rehania.] The recommendations regarding institutional and legal reform, however, have not yet been implemented as of the submission of this report.
Jewish religious institutions and the State
546. To understand the degree to which Israel implements its obligation under this article with regard to the Jewish population, it is necessary first to delineate some of the main features of the complicated institutional and legal context in which Jewish religious law operates in a "Jewish and democratic" State.
547. Judaism has always been at once a religious doctrine and way of life, a race, a nation (am yisrael), a shared culture and history. Until the modern era, virtually the entire Jewish people lived according to the precepts of Jewish religious law (Halakha), which encompasses not only a religious doctrine and form of worship, but a comprehensive body of binding laws extending to every area of private, religious and civic life. Religious life took place within traditional communities in the various countries to which the Jewish people were dispersed, and these communities had clerical institutions with effective power to interpret and enforce compliance with the religious law. Within this self-contained legal and social system, certain secular laws promulgated by the gentile rulers in places where Jewish communities dwelled were recognized as binding in various degrees. While throughout its history Judaism has been witness to heterodox doctrinal factions, such as the pre-Paulian Christians, the Essenes, and the seventeenth century Sabbatean movement, and to differences of religious doctrine within the mainstream communities, it has been primarily over the last 250 years that Jews around the world have developed a spectrum of approaches to religious practice, ranging from total non-observance to complete observance of Halakhic law. In the West, the Reform, Conservative and Reconstructionist movements emerged as voluntary alternatives to orthodox religious practice. For most of the twentieth century, and especially following the annihilation of European Jewish communities during the Second World War, the vast majority of the world Jewish population has not been orthodox in religious practice.
548. In the land of Israel, even prior to the establishment of the State, the lack of a complete overlap between Judaism as a people and as a religion has taken on a more pronounced, political cast than elsewhere. Although Zionism as an ideology and political movement had deep roots in the Jewish tradition, in which the return to the Holy Land and reestablishment of the ancient religious order has held a central eschatological role, Zionism was in practice largely a non-religious movement, with a minority of religiously observant members; in the eyes of many of its adherents, moreover, it was viewed explicitly as an alternative path of collective self-realization to the rigorously observant life of Jewish communities in the Diaspora. This dominant strand of Zionism sought to create a homeland for the Jewish people as a whole, regardless of their level of religious observance. On the other hand, the orthodox Jewish communities viewed the establishment of a Jewish homeland through the prism of the religious tradition, in which it was clear that the comprehensive system of Halakha, emanating under orthodox doctrine from divine revelation at Mount Sinai, would be the law of the land. In scholarly debates through the centuries, the notion of a Jewish Government in the land of Israel based upon a secular outlook was never even considered. See, e.g., Maimonides, Law of Stolen and Lost Things, V, 11; Maimonides, Commentary on the Mishna, Nedarim 27 b. Thus, the emergence of a largely secular Zionist movement and the establishment of a Jewish State based on secular laws which are to a great extent inconsistent with Halakha set two legal orders against one another, each demanding primacy. Some segments of the orthodox community do not recognize the legitimacy of the State's secular institutions, preferring, for example, to bring their disputes before rabbinical tribunals rather than the civil courts. At the same time, religious political parties have been represented in every Knesset since the establishment of the State - they comprise roughly one fifth of the current Knesset - and take a substantial role in the administration of Government at all levels. The religious parties work through the political and legislative processes to further the adoption of Jewish religious law as the law of the land, or at least the law that binds the Jewish population, in a variety of areas. Most of the observant community, however, as well as the State itself, have attempted to accommodate the two competing systems of law within a democratic framework.
549. The nature of the accommodation between Jewish religious law and the institutions of the secular State is based upon the following principles:
(a) As it does with regard to the other recognized religious communities, the State recognizes the jurisdiction of the Rabbinical Courts over all Jewish citizens and residents (not only those who were voluntary members of the community, as during the Mandatory period) in matters of personal status, including exclusive jurisdiction over matters of marriage and divorce. These courts decide according to the precepts of Halakha;
(b) In certain other matters of personal status the provisions of Halakha are binding and are applied even in the civil courts;
(c) The State confers powers upon the Chief Rabbinate, which is organized under law and supported by State funds;
(d) At the local level, the State confers powers on religious councils, which are similarly organized under law and funded in part by the State;
(e) The State attends to religious education, and there is a network of State religious schools in addition to the State non-religious schools and independent religious school systems, which also receive government funding in many cases;
(f) The Ministry of Religious Affairs may use part of its budget for the religious needs of the Jewish community, as it may do for other religious communities, and the Minister may enact regulations with a religious purpose if so authorized by the Knesset;
(g) The Knesset has enacted laws with a religious background regarding the Sabbath and Jewish holidays, dietary laws, and other matters;
(h) The Israel Defence Forces has a chaplaincy, and applies Jewish dietary laws to the entire army;
(i) The actions of all State institutions that act in the religious sphere - both government offices and organizations operating under colour of Knesset legislation - are subject to review by the High Court of Justice, including in matters related to the application of religious law;
(j) The provisions of certain secular laws, such as regarding equal rights for women, adoption of children and spousal property relations, are binding on the religious as well as the civil courts. According to Supreme Court precedents, a judgement of a religious court contrary to such secular provisions of law is in excess of its jurisdiction. (See H.C.J. 202/57, Sidis v. President of Supreme Rabbinical Court, 12 P.D. 1528.)
550. As discussed in more detail below, these arrangements are not always easily reconciled with the broad principle of religious freedom. While it should be emphasized that the State protects the freedom of Jews and non-Jews alike to engage in their chosen form of religious practice or worship, and that in most cases the application of religious precepts by institutions of the State, such as in the prohibition of work on religious days of rest, does not compel Jews or non-Jews to violate the precepts of their chosen faith, it remains the case that some religious norms - primarily in matters of personal status, such as marriage, divorce, conversion and burial - are applied in a manner that infringes upon the right of persons not to be bound by religious laws which they do not espouse. In addition, the non-orthodox Jewish communities have had to struggle to attain a level of recognition equal to that of the orthodox communities in matters of worship and religious authority.
Legal sources guaranteeing religious freedom
551. Article 83 of the Palestine Order in Council, 1922, enacted during the Mandatory period, provides:
- "All persons in Palestine shall enjoy full liberty of conscience, and free exercise of their forms of worship subject only to the maintenance of public order and morals. Each religious community recognized by the Government shall enjoy autonomy for the internal affairs of the community subject to the provisions of any Ordinance or Order issued by the High Commissioner."
The individual right to freedom of religion is not specifically mentioned, but is included in the broad term "freedom of conscience", which encompasses all forms of belief and points of view. C.A. 450/70, Rogozinski v. State of Israel, 26(1) P.D. 129, 134. During the Mandatory period, article 17 of the Order-in-Council provided that any legislation limiting absolute freedom of religion and worship in all forms, except as necessary to ensure public order and morals, should be null and void; it also prohibited legislation discriminating in any manner between persons on grounds of nationality, religion or language. Since the establishment of the State, however, the Order-in-Council no longer occupies the supreme position which it held under the Mandate: although it still is binding on the executive branch, the Knesset, by virtue of its sovereignty as a legislative body, is not prevented from passing laws in contravention of it. Israel's Declaration of Independence specifically guarantees freedom of religion and conscience to all citizens of the State, without regard to religion, race or sex. However, as noted elsewhere in this report, the Declaration does not have the force of a Constitution or an ordinary statute; the principles which it enunciates are basically of declarative effect, although they have served as an important interpretive tool in the formation of Israel's development of human rights. Indeed, it may be noted that one of the most recalcitrant problems that has prevented the consolidation and enactment of a constitution since Israel's founding has been the difficulty of resolving at the political level the fundamental tension between orthodox and secular conceptions of a Jewish State, as discussed above. Although the Supreme Court, in the absence of a proper constitution, has established several fundamental human rights in Israeli law by giving constitutive weight to the fact, as stated in the Declaration of Independence, that Israel was founded as a democracy, it has ruled that it will interpret statutes in a manner which accords with the Declaration and upholds freedom of conscience and religion in its entirety only to the extent that there is doubt as to the legislative will of the Knesset in this regard (ibid., p. 136).
552. The enactment in 1992 of Basic Law: Human Dignity and Liberty may well help provide a firmer constitutional foothold for the protection of religious freedom. Although the Basic Law does not explicitly mention religious freedom as one of the fundamental rights protected therein, it does provide that fundamental human rights shall be interpreted "in the spirit of the principles in the Declaration of Independence" (sect. 1), which, as mentioned, specifically include the freedom of religion and conscience. Moreover, the express intention of the Basic Law is to establish "the values of the State of Israel as a Jewish and democratic State" (sect. 1 A); setting aside for the moment the difficulties in reconciling these two defining characteristics of the State, the constitutive principle of democracy, which the Supreme Court has used to buttress the existence of the right to freedom of religion and conscience, has now been given clear grounding in a constitutional statute. While the Court has not yet ruled squarely on the issue, several decisions and other writings by some of the Justices indicate support for the view that the general right to human dignity protected by the Basic Law includes freedom of religion and conscience (as well as other freedoms contained in the Declaration, such as the right to equal treatment and freedom of speech), which thus has the status of a supreme, constitutional legal norm. See, e.g., H.C.J. 5016/96, Horev v. Minister of Transportation (97 Takdin 421 (1997)) ["Religious coercion constitutes a violation of human dignity" (Barak, P.)]; H.C.J. 5394/92, Huppert v. "Yad Vashem", 48(3) P.D. 353.
553. Specific laws protecting freedom of worship, holy places and religious sentiments. Apart from the general guarantees of religious freedom described above, several specific statutory provisions help ensure the freedom of religious worship and the safekeeping of and access to holy places for members of all faiths in Israel. Several of these are contained in sections 170-173 of the Penal Law, 5737-1977, as follows:
- "170. A person who destroys, damages or desecrates a place of worship or any object which is held sacred by a group of persons with the intention of thereby reviling their religion or with the knowledge that they are likely to consider such destruction, damage or desecration as an insult to their religion is liable to imprisonment for three years.
- "171. A person who willfully and without proving lawful justification or excuse disturbs any meeting of persons lawfully assembled for religious worship or wilfully assaults a person officiating at any such meeting or any of the persons there assembled is liable to imprisonment for one year.
- "172. A person who, with the intention of wounding the feelings of a person or of reviling his religion or with the knowledge that the feelings of a person are likely to be wounded or his religion likely to be insulted thereby, trespasses on any place of worship or burial or any place set apart for funeral rites or as a depositary for the remains of the dead or offers any indignity to a human corpse or causes disturbance to any persons assembled for a funeral is liable to imprisonment for three years.
- "173. A person who does any of the following is liable to imprisonment for one year:
- "(1) publishes any print, writing, picture or effigy calculated to outrage the religious feelings or belief of other persons;
- "(2) utters in a public place and in the hearing of another person any word or sound calculated to outrage his religious feelings or belief."
554. The Protection of Holy Places Law, 5727-1967, expands on the sanctions contained in the Penal Law by mandating that holy places of all religions be protected from any "desecration or other violations", and prohibiting any act that might impair the free access of members of all religions to their holy places or "anything likely to violate the feelings of the members of the different religions with regard to those places". Desecration or other violations of holy places are punishable by seven years' imprisonment; impairment of free access and violation of feelings as mentioned above are punishable by five years' imprisonment. It should be noted that the protection of religious feelings of religious groups under this law, unlike the parallel provisions in the Penal Law, does not require actual criminal intent or knowledge, but suffices with constructive knowledge by the offender that such an emotional violation is likely to be caused as a result of his conduct. In addition, several other statutes aim to protect holy sites against physical harm by requiring the consent and guidelines of the Minister of Religious Affairs as a precondition to the performance of certain actions in or near a holy place, such as excavations (Mines Ordinance, sect. 8 (1) (a)), drainage plans (Drainage and Protection Against Flooding Law, 57181958, sect. 22 (a)), water and sewage systems (Water Law, 5719-1959, sects. 70-71; Local Authorities (Sewage) Law, 5722-1962, sect. 14), declaring the site a national garden (National Parks and Nature Reserves Law, 5723-1963, sects. 4-5), vacating and demolishing houses (Building and Evacuation of Rehabilitation Areas Law, 5725-1965, sect. 51), and so on. Furthermore, most of the holy places are also antiquities sites, and thus are protected by similar provisions in the Antiquities Law, 5738-1978.
555. In practice, the access to holy places and freedom of worship for members of all faiths is very strictly guarded, with a few exceptions relating to the maintenance of public order or morals. Within the Christian community, there are no holy sites at which freedom of access and worship is restricted by the State. It may be noted that the physical control over some parts of the Church of the Holy Sepulchre, the nearby Deir Sultan chapel, the Tomb of St. Mary and the Church of the Ascension have been the subject of centuriesold internal disputes between different Christian denominations, and give rise to a certain limitation on freedom of access to members of rival denominations; the State, however, has adopted a consistent policy of nonintervention in these disputes.
556. The Temple Mount. Access to the Temple Mount, Judaism's holiest site and the third-most holy site to Muslims, has been treated with special caution and sensitivity due to the extreme volatility of the religious and political passions that surround the place, which have more than once erupted into violence. For this reason, among others, in the aftermath of the June 1967 war in which Israel took control of the Old City of Jerusalem, administration of the Temple Mount was left in the hands of the Muslim wakf. Moreover, the Government made the extraordinary decision to prohibit Jews from praying on the Temple Mount, as opposed to merely visiting the site. In the many petitions which have been filed over the years on behalf of Jewish groups seeking to pray on or near the Mount, the Supreme Court has held that while Jews have the fundamental right to pray on the Temple Mount, the realization of that right is conditional upon the approval of the government authorities, who must decide in each case whether an exception may be made to the general policy against allowing Jews to realize their right to pray, for reasons of public order and safety. In general, the Court decides in such cases whether the realization of the right of Jews to worship where they choose bears a "near certainty" of severe violation of public order or safety, and whether time, place and manner restrictions may enable a realization of the right without thus endangering public order. The Court has dismissed a series of petitions by Jewish groups seeking to pray on the Temple Mount; in one case the Court allowed a single Jew to pray on his own on the Temple Mount, provided that the prayer did not amount to "a demonstration", later limiting this right of individual prayer by holding that it could not be performed with prayer accessories such as a prayer book, prayer shawl or phylacteries. H.C.J. 99/76, Harluf Cohen v. Minister of Police, 30(2) P.D. 505; H.C.J. 67/93, "Kach" Movement et al. v. Minister for Religious Affairs et al., 47(2) P.D. 1. In other cases the Court has allowed Jewish groups to pray outside one of the gates to the Temple Mount subject to restrictions of time, place, number of worshippers and so on. See, e.g., H.C.J. 292/83, Temple Mount Faithful v. Commander of Police for the Jerusalem Region, 38(2) P.D. 449. On the other hand, the Police reserves the right to exclude individual Muslims from entering the Temple Mount for prayers when it deems it necessary to do so to maintain public order and safety, typically during periods of particularly heightened tension or unrest, when thousands of worshippers come for Friday prayers. Under current practice, the Police maintain checkpoints outside the gates to the Temple Mount, and the wakf screens entrants inside the gates on "religious" grounds, such as appropriateness of dress or exclusion of non-Muslims during prayer times.
557. Adjoining the Temple Mount on the west side is the site known as the Western Wall, widely considered to be the most important existing place of prayer for Jews. During virtually the whole period since the destruction of the Second Temple in 70 A.D., Jews were not allowed to enter the Temple Mount by those who controlled it, and this remnant of the retaining wall of the ancient Jewish Temple became the most tangible link to the bedrock of the Jewish religion and history. Because of its centrality, the Wall has recently become the focus of conflicts regarding the right of all Jews to conduct prayer services according to their chosen manner of worship.
558. In 1989, a group of women who sought to pray at the Wall in a manner unacceptable to the majority of orthodox Jewry, carrying the scrolls of the Torah, wearing prayer shawls and reading from the Torah, were violently evicted from the Wall area by orthodox worshippers. Two groups of women, who came to be known as the "Women of the Wall", petitioned the High Court of Justice to allow them to worship as they wished. H.C.J. 257/89, 2410/90, Hoffman v. Custodian of the Western Wall, 48(2) P.D. 265. During the hearing of the petition, the Regulations for the Protection of Holy Places for Jews, 5741-1981, were amended to prohibit the "conduct of a religious ceremony [at the Western Wall] in a manner not in accordance with the practice of the place, which violates the feelings of the worshipping public towards the place". A divided Court rejected the womens' petitions, subject to the recommendation of the President of the Court that a public committee be set up to find an arrangement which would not prevent the women from praying as they wished, and at the same time would reduce the injury to the feelings of the orthodox majority of worshippers at the Wall. The Committee thus established during the course of the legal proceedings also considered a request by Reform and Conservative Jewish groups to hold prayer services according to their custom in the rear section of the Western Wall plaza, after attempts to do so were disrupted due to the fact that these groups conduct their services without any physical separation between men and women. In April 1996, the Committee recommended that an "alternative plaza" be established for the prayer services of the women and Reform groups, outside of the Old City walls; it also recommended that the Reform and Conservative groups not be allowed to pray in groups according to their custom in the Wall plaza itself, even during separate prayer times. As of the submission of this report, a permanent solution has yet to be reached on the matter, which pits the right to freedom of worship of different segments of the Jewish community against one another. The division of opinion among the members of the three-judge Supreme Court panel rather aptly reflects not only the tension between these statutory rights, but also the underlying tension between religious and secular conceptions of the Jewish homeland. One of the Justices, D.P. Elon argued that the womens' manner of prayer violates Jewish religious law, such that allowing it would be tantamount to a desecration of the holiness of the site. Because allowing the women to pray as they wished, in Justice Elon's view, would violate the freedom of worship of orthodox persons, it was necessary to find "the broadest common denominator among all worshippers"; and as the vast majority of worshippers at the Wall are Orthodox, Justice Elon argued that their interest should be preferred, both because of the fear of violation of public order that the womens' services would arouse, and because such services would effectively prevent the orthodox worshippers from holding their services at the site. J. Levin, in a minority opinion, rejected the "broadest common denominator" approach of Justice Elon as giving a monopoly to one religious outlook on the issue over all others; instead, he argued that the proper balance must be found to enable all Jewish groups to pray in groups at the Wall without overly violating the feelings of other worshippers. P. Shamgar joined Justice Elon's opinion, but maintained that the "broadest common denominator" requires finding arrangements that "ensure freedom of access and freedom of worship to everyone, without forcing a unique form of conduct on those who do not desire it and without harm to the feelings of the faithful".
559. The rule in the "Women of the Wall" judgement may not extend beyond the special case of the Western Wall. In an earlier decision, for example, the Court declared null and void the refusal of a local religious council to lease a public hall to a non-Orthodox group for holiday prayer services due to its deviance from orthodox practice. H.C.J. 262/62, Peretz v. Kfar Shmaryahu Religious Council, 16 P.D. 2101.
Imposition of secular norms in contravention of religious law or custom
560. In certain instances, overriding public policy interests are deemed to justify the imposition of certain secular norms on the entire population, as is the case with the criminal prohibition of bigamy. In rejecting an appeal against the prohibition of bigamy as constituting religious compulsion against the Muslim community, for whom bigamy is not forbidden by religious law, J. Silberg, noted that "the meaning of 'freedom of religion' is not freedom to do what the religion allows, but rather freedom to do what the religion requires". H.C.J. 49/54, Milchem v. Judge of the Shari'a Court, 8 P.D. 910, 913. Over the years, however, the Court has fully recognized the right to freedom from religion in such a manner that this earlier holding may not still be controlling (see H.C.J. 5016/96, Horev v. Minister of Transportation, supra).
561. Until 1980, the Anatomy and Pathology Law, 5713-1953, permitted the performance of autopsies without the prior consent of the deceased or the consent of his or her family. Following vehement opposition to the law by the Orthodox Jewish community, the law was amended to prevent autopsies in the event that a family member or, in appropriate circumstances, a relative, opposes such a procedure, except when it is necessary to use part of the body of the deceased to save another human life. The problem becomes more thorny when the secular norms are imposed upon authorized religious institutions rather than private persons. To take one example, the Supreme Court held the Rabbinical Court, in adjudicating questions of division of marital property in the context of a divorce suit, must rule in accordance with civil law principles guaranteeing the woman's right to an equal share in the marital estate, based on the notion that marital property issues are not among those issues of "personal status" which are to be governed by religious law. H.C.J. 1000/92, Bavli v. Great Rabbinical Court of Appeal, 48(2) P.D. 221. Such a decision departs from the principles of Jewish law, under which the divorcing husband must pay his wife the amount stipulated in the formal religious marriage contract, unless released from that obligation according to other Halakhic principles.
562. Employment and days of rest. The State of Israel fully guarantees the right of employees to observe the holidays and days of weekly rest prescribed by their religion. The Law and Administration Ordinance, 1948, provides that "Sabbath [Saturday] and Jewish festivals ... shall be the established days of rest in the State of Israel. Non-Jews shall have the right to observe days of rest on their Sabbath and holidays." The Hours of Work and Rest Law, 57111951, gives every worker the right to a day of weekly rest which shall not be less than 36 consecutive hours. Non-Jews may choose the day on which they take their weekly rest, either on Friday, Saturday or Sunday (sect. 9); this rule allows employees to adapt their work schedules, if they wish, to that of an employer who observes a different day of rest. Moreover, employers are forbidden from refusing to hire an employee who, upon being hired, notifies the employer that he or she will not work on the weekly day of rest for reasons of religious observance; nor may employers require an employee to obligate to work on the day of weekly rest as a condition of employment. These restrictions do not apply to enterprises responsible for public security, State security, public health or the provision of certain essential services, as well as hotels and the electric utility. The law further forbids employment of workers, or the performance of work by owners of workshops or industrial undertakings, on the day of rest unless a permit is received. The Minister for Labour and Social Affairs issues permits for Sabbath work if he is convinced that interruption of work will impair the defence of the State, the protection of property or bodily integrity, or if it will cause significant economic loss or substantially impair the provision of essential services. A ministerial committee is authorized to give general permits to classes of enterprises, which it has done, for example, for hotels and guest houses, medical institutions and lifeguards. Members of cooperative societies, such as kibbutzim, may perform work on the Sabbath which is connected with maintenance of necessary services.
563. Public restrictions on the Sabbath and holidays. While the right of individual employees to observe their religious holidays and rest days is protected as described above, the mandatory closing of businesses and services on the Jewish Sabbath has been the source of contention between the religious and secular segments of the Jewish community. Until the late 1980s, local and municipal authorities tended to prohibit opening of businesses on the Jewish Sabbath and holidays by virtue of their general authority to oversee the opening and closing of various businesses. In 1987, for the first time, the Jerusalem Magistrate's Court held that a municipal regulation forbidding the opening of cinemas on the Sabbath was ultra vires, and that municipalities could properly enact such regulations only if explicitly empowered to do so by the Knesset. Cr.F. (Jerusalem) 3471/87, State of Israel v. Kaplan et al., P.M. 5748, vol. 2, p. 265. Following this judgement, the Knesset amended the Municipalities Ordinance to give municipalities such explicit authority to take account of considerations related to religious tradition in ordering the opening or closing of businesses on the Sabbath. Municipalities Ordinance (Amendment)(No. 40) Law, 5750-1990. As a practical matter, cinemas in the larger cities, including Tel Aviv, Haifa and, to an extent, Jerusalem, are open on the Sabbath eve. In one city, Netanya, a municipal regulation was enacted to prohibit operation of cinemas on the Sabbath eve unless their operation is intended "for cultural or educational needs". In a petition challenging the validity of these regulations, the Supreme Court ruled that cinema is undoubtedly a "cultural and educational activity", and thus would not be prohibited. H.C.J. 5073, 5609, 5799/91, Israel Theatres Ltd. et al. v. Netanya Municipality, 47(3) P.D. 192.
564. Public bus transportation does not operate on the Sabbath, except for the cities of Eilat and Haifa, according to long-established custom which has not been altered by municipal bylaws. In those cities in which public bus transportation does not operate, there are private bus and taxi companies which, to a certain extent, serve the needs of the secular population. The Ben-Gurion International Airport has incoming and outgoing flights on the Sabbath, but El Al, Israel's national airline, has no flights on the Sabbath, by virtue of a government decision; nor does Israel Railways operate on the Sabbath.
565. Another hotly contested issue, primarily in Jerusalem, has been the closing of traffic arteries which pass through Orthodox Jewish neighbourhoods on the Sabbath and holidays. Many side streets in such neighbourhoods have long been closed on the Sabbath, so as not to violate the sanctity of the Sabbath for the Orthodox community, for whom all manner of labour (including motor transportation) is prohibited on the Sabbath. Over the past several years the principal conflict has been over the efforts to close a major traffic artery, Bar Ilan Street, during the Sabbath or at least during prayer times. Several petitions have been filed in this matter to the High Court of Justice (see, e.g., H.C.J. 5016/96, Horev v. Minister of Transportation, supra), and two separate public committees have been formed to recommend solutions to the problem. The Court has ruled that the Transportation Inspector, who is authorized to decide on closing major traffic arteries, may take the needs of the religious public into consideration, but must balance those needs against the freedom of movement of the non-Orthodox community. The street is currently closed during times of prayer, and open during the rest of the Sabbath.
566. While Israel recognizes the need to balance between the needs and interests of religious and non-religious communities in imposing general restrictions on the Sabbath such as those described above, the restrictions themselves do not impair the freedom of religion the secular community as such - certainly in the sense of the freedom to practise their religion in the manner they choose, but also in the sense of freedom from religious compulsion, provided that reasonable alternatives exist for the activities and services so restricted.
567. Conversion. In general every person in Israel has the right to change his or her religion, and the State intervenes neither in the individual's decision to adopt or change religion, nor in the decision of a particular religion to accept any person as a member. H.C.J. 1031/93, Pesarro (Goldstein) v. Minister of Interior. In certain circumstances, however, a formal official approval of conversion may be demanded, such as when the conversion would result in the conferral of particular rights as a result of one's religious status (primarily under the Law of Return). (ibid.) One must distinguish here between recognition of conversion by the secular organs of the State and approval of a change in religion for purposes of matters of personal status, which are determined by religious law. In Israel, the religion and nationality of every resident and citizen are registered in the Population Register, and these details appear on one's identity card. While the State may act to ensure, for example, that conversions to Judaism have not been made fictitiously for purely economic reasons, i.e. to receive the economic benefits given to an oleh under the Law of Return, the registration as Jews of persons who have converted to Judaism under the auspices of nonOrthodox religious bodies has been and remains a controversial issue, due to the opposition of the Orthodox religious parties to recognizing such conversions. In the late 1980s, the Supreme Court ruled that the conversion to Judaism of an oleh, so long as it were supported by a document evidencing conversion by any Jewish community abroad, Orthodox or not, would be sufficient for registration as a Jew. H.C.J. 264/87, Sephardi Torah Guardians Movement v. Director of Population Administration et al. 43(2) 726. In the Goldstein case noted above, the Supreme Court ruled, in a majority decision, that the Ministry of Interior also had no authority to refuse to recognize non-Orthodox conversions to Judaism performed inside Israel for purposes of recognition as an oleh under the Law of Return. However, the Court stopped short of ordering the Interior Ministry to register the petitioner as a Jew and to give her the status of an oleh. Under current law, then, the legitimacy of a non-Orthodox conversion to Judaism may not be denied by State authorities acting under colour of a civil, secular law. On the other hand, the Rabbinical Courts, which apply Jewish religious law in matters of personal status, do not recognize persons converted by a non-Orthodox body as Jews. Thus, a person who was converted to Judaism abroad by a non-Orthodox body, who immigrated to Israel under the Law of Return and who was registered as a Jew in the Population Register will be unable to marry in Israel if the Rabbinate does not recognize the conversion.
568. The application of religious law to matters of personal status also affects the right of secular Jewish families who adopted children abroad to convert them to Judaism according to their chosen manner of observance. Rabbinical courts tend to pose Orthodox conditions for the conversion of such children, such as the observance of dietary laws and Sabbath, and the obligation to give the child an Orthodox education. As of the submission of this report a petition is pending in the High Court of Justice which seeks recognition for non-Orthodox conversions of such adopted children. The right of adoption generally, it may be noted, is reserved in Israel to a wife and husband together, and if the adoption is to be done in Israel the child must be of the same religion as the parents. Such requirements pose special difficulty for couples who do not share the same religion, or for those whose marriage may not be recognized by the law of the religion in question, or in the case of a child whose religion is not clear.
569. As of the time of submission of this report, legislative efforts are being made by religious parties to require all conversions to Judaism performed in Israel, at least, to be approved by an Orthodox body. At the same time, a committee appointed by the Prime Minister is attempting to work out a compromise arrangement.
570. Burial. As a practical matter, until very recently, all cemeteries in Israel, except those of kibbutzim, have been managed by religious institutions of the various religious communities. If a person who dies is not a member of a religious community which administers graveyards, or has expressed the wish not to be buried according to religious tradition, a special solution must be found, often at the kibbutzim. Jewish burial grounds are managed by officially appointed Orthodox burial societies (hevrot kadisha), which will bury only those who are Jewish according to Orthodox religious law, and according to an Orthodox ceremony. In a 1992 judgement, the Supreme Court ordered the Minister for Religious Affairs to recognize a non-Orthodox Jewish burial society, and also ordered the Israel Land Administration to allot land for such a non-Orthodox graveyard. In April 1996, the first "alternative" graveyard for Jews was inaugurated in Beersheba. Additional licences for alternative burial services have been granted in Jerusalem and Haifa. During that year a new law was enacted guaranteeing the right of citizens to be buried according to their chosen manner of observance in alternative graveyards (Right to Alternative Civil Burial Law, 1996). The Law requires that such alternative graveyards be established in various areas around the country, sufficiently distant from one another so that all those who wish to take advantage of the new arrangement may reasonably be able to do so.
571. Public restrictions related to Jewish dietary laws. To a certain extent, Jewish dietary laws are applied by Knesset legislation or municipal bylaws to the general public or to the Jewish community. For example, public institutions which are not located in non-Jewish towns or localities, such as hospitals, the army, and government offices, serve kosher food (i.e. food which meets Jewish religious dietary laws) to enable religious Jews as well as non-religious Jews and members of other faiths to use these facilities. In addition, certain tenets of the Jewish dietary laws are enforced to varying degrees over the Jewish population. For example, the SwineRaising Prohibition Law, 1962, forbids the raising, maintaining or slaughtering of pigs except in specified (generally Christian) towns, scientific research institutes and zoos. Local and municipal authorities may, by municipal legislation, restrict or forbid the sale of pork and pork food products within their jurisdiction. Local Authorities (Special Authorization) Law, 5716-1956. Although many cities have enacted municipal regulations forbidding the sale of pork under the above Law, these regulations are generally not enforced. In two currently pending court cases, sweeping prohibitions on the sale of pork have been challenged as unreasonably extreme in infringing upon the freedom from religion of the secular public and the "freedom of occupation" of storeowners who wish to sell pork.
572. Jewish dietary laws are also imposed on the importing of all meat from abroad. Because of a relative shortage of grazing land, most beef in Israel is imported from abroad, primarily from Argentina. Until 1992 the Government managed the import of meat, and allowed only kosher meat (that is, meat slaughtered and prepared according to the requirements of Jewish religious law) to be brought into the country. When the Government decided to privatize the importation of meat, it undertook to enact implementing legislation which would grant import licences only to those who obligated to import kosher meat exclusively. The Supreme Court overturned this decision as an excessive infringement on the freedom of non-Orthodox persons not to be subject to religious norms, and indicated that the decision also unduly restricted the freedom of occupation of companies who wished to import non-kosher meat. In the aftermath of this judgement the Knesset enacted a law which forbade importation of meat to Israel without a kashrut certificate from the Chief Rabbinate, and a parallel amendment to Basic Law: Freedom of Occupation, which specifically empowered the Knesset to enact laws in contravention of the Basic Law. As of the submission of this report, a petition is pending in the Supreme Court regarding the legality of the new laws.
573. Jewish dietary laws also forbid Jews from eating leavened bread or other foods which do not meet special strict dietary norms during the holiday of Passover. In 1986 a special law was enacted forbidding Jewish storeowners to display leavened bread publicly for purposes of sale or consumption. Passover (Prohibition of Hametz) Law, 5746-1986. In practice, however, this law does not prevent the sale of leavened bread or other "not-kosher for Passover" products in restaurants or in many stores, and the law does not apply in nonJewish cities or neighbourhoods.
574. The Chief Rabbinate is responsible under law for giving certificates of compliance with Jewish dietary laws to restaurants and banquet halls. Such regulation is intended to ensure that any person who observes the religious dietary laws can rely on the proprietor's representation that the food is in fact kosher. However, under current practice the Rabbinate may condition the issuing of a kashrut certificate on matters of religious law unrelated to the dietary laws themselves; for example, it will refuse to grant a kashrut certificate to a restaurant which is open on the Sabbath, even if the dietary laws are strictly observed. In this manner, the control by the Rabbinate of kashrut supervision constitutes a preference of Orthodox Jewish practice over non-Orthodox Jewish practice, such as that of traditional but non-Orthodox Jews who may keep the dietary laws but be willing to eat at a place which is open on the Sabbath. The Supreme Court has demonstrated a willingness to intervene in certain cases of imposition of other religious norms by means of withholding the kashrut certificate. In H.C.J. 465/89, Raskin v. Jerusalem Religious Council, 44(2) P.D. 673, the Court, in accepting the petition of a belly-dancer against the policy of the Jerusalem Religious Council under which it refused to issue kashrut certificates to proprietors of banquet halls or restaurants that allowed "immodest" performances (including bellydancing), held that the authority to issue kashrut certificates does not empower the Rabbinate to enforce a particular type of behaviour at the place in question, even if such behavior violates their religious precepts.
575. The right to marry. Israel entered a reservation upon ratifying the Covenant, explaining that matters of personal status are governed in Israel by the religious law of the parties concerned, and that to the extent that such law is inconsistent with its obligations under the Covenant, Israel reserves the right to apply that law.
576. Under the religious law applied in matters of marriage and divorce, many couples are prevented from being able to realize their right to marry in Israel, including couples who belong to different religions, or persons who may not marry the person of their choice due to prohibitions deriving from religious law. Many persons, particularly immigrants from the former Soviet Union and Ethiopia, who have been granted oleh status and registered as Jews in the Population Registry, are nevertheless not considered by the Rabbinate to be Jews according to Halakha and thus may not marry in Israel. These limitations on marriage have potential implications on the rights of any children born to parents whose marriage may not be recognized under religious law. In addition, Jewish religious law severely limits the ability of women in certain circumstances to get a divorce if the husband refuses, or to annul the marriage in the event that the husband's mental illness prevents him from being able to give a decree of divorce, or if the husband disappears but his death is not strictly confirmed.
577. Participation of women and non-Orthodox representatives on religious councils. Local and regional religious councils, which operate pursuant to the Jewish Religious Services Law, are responsible for the carrying out of certain religious functions in their community. Among other things, the religious councils are involved in the performance of wedding ceremonies, maintenance and operation of ritual baths (mikvot), support for synagogues and other religious institutions, and arranging cultural activities of a religious nature. These religious councils have been controlled exclusively by members of the Orthodox community. In a landmark Supreme Court judgement in 1988, the Court ordered a religious council to take on a woman as a member, whose appointment they had opposed precisely on those grounds. H.C.J. 153/87, Shakdiel v. Minister of Religious Affairs et al., 42(2) P.D. 221. Several petitions have also been filed against the refusal to appoint non-Orthodox representatives to several religious councils. Although the Supreme Court has more than once invalidated the appointment of religious councils in Jerusalem and elsewhere, in which a non-Orthodox candidate was rejected because his or her form of religious belief and practice approach was deemed unacceptable by members of the council, the various entities responsible for appointing the religious councils in Jerusalem and Tel-Aviv (that is, the municipal council, the local rabbinate and the Minister of Religious Affairs) have not yet implemented the Court's decisions. H.C.J. 699,955,1025/89, Hoffman et al. v. Jerusalem Municipal Council et al. 48(1) P.D. 678. On the other hand, these petitions have resulted in the appointment of Reform and Conservative Jewish candidates to the religious council in Haifa, Netanya and elsewhere.
578. Funding and support of non-Orthodox institutions. Until very recently, local and national government funding for Jewish religious services was considered virtually the exclusive domain of Orthodox Jewish institutions. As a result of a petition filed by Reform institutions, the Ministry of Religious Affairs amended its funding allocation criteria to guarantee funding of Orthodox and non-Orthodox institutions on an equal basis. The allocation of public land for use by non-Orthodox religious institutions on an equal basis with Orthodox institutions has also been the source of controversy in several towns and cities.
579. Education. The State maintains two parallel educational systems - State (secular) and State Religious. In addition, officially recognized alternative schools have been established by the Reform and Conservative Jewish movements at the primary and middle-school level, and certain Orthodox communities maintain their own educational institutions, some of which are recognized by the State. Some non-Jewish communities also maintain religious schools. Parents are free to choose which school their children will attend.
580. Conscientious objection. As discussed under article 8, women have a statutory right to claim exemption from military service due to reasons of conscience. Men may be exempted from military service at the discretion of the military authorities.
Thursday, January 22, 2009
Basic Law: Human Dignity and
1. Fundamental human rights in
1(a). 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.**
1(a). 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.**
Preservation of life, body and dignity
2. There shall be no violation of the life, body or dignity of any person as such.
Protection of property
3. There shall be no violation of the property of a person.
Protection of life, body and dignity
4. All persons are entitled to protection of their life, body and dignity.
5. There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.
Leaving and entering Israel
6. (a) All persons are free to leave
7. (a) All persons have the right to privacy and to intimacy.
(b) There shall be no entry into the private premises of a person who has not consented thereto.
(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.
(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.
Violation of rights
8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required,
or by regulation enacted by virtue of express authorization in such law.**
Reservation regarding security forces
9. There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defence Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by virtue of a law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service.
Validity of laws
10. This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.
11. All governmental authorities are bound to respect the rights under this Basic Law.
12. This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.
President of the State
Speaker of the Knesset
* Passed by the Knesset on the 12th Adar Bet, 5752 (17th March, 1992) and published in Sefer Ha-Chukkim No. 1391 of the 20th Adar Bet, 5752 (25th March, 1992); the Bill and an Explanatory Note were published in Hatza'ot Chok, No. 2086 of 5752, p. 60; Amended
** Amended by the Knesset on 12 Adar 5752 (17th March 1992) and amended on 21 Adar, 5754 (9th March, 1994). Amended law published in Sefer Ha-Chukkim No. 1454 of the 27th Adar 5754 (10th March, 1994), p. 90; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 2250 of 5754, p. 289.