E/CN.4/1992/52
page 94
'The State of Israel will foster the development of the country for
the benefit of all its inhabitants, it will be based on freedom, justice
and peace as envisaged by the prophets of Israel; it will ensure complete
equality of social and political rights to all its inhabitants,
irrespective of religion, race or sex; it will safeguard the holy places
of all religions and be faithful to the Principles of the Charter of the
United Nations.'
3.
While this Declaration does not constitute positive law, it has
nevertheless been accorded a special status, which in the course of the years
has left considerable imprint upon the Israeli legislature and has been
applied by the Israeli courts as an important guide for the interpretation of
laws of the State.
4.
As a result of a variety of reasons, historical and others, Israel
like Great Britain which ruled Israel from 1918-1948, has as yet no
comprehensive written constitution. The Knesset has passed a series of
'Basic Laws' which form the backbone of Israeli democracy and which will form
the future constitution of the State of Israel. The enactment of the Basic
Laws as well as the promulgation of the other legislative and administrative
measures taken by the State act together to prohibit, inter alia,
discrimination on the grounds of religion or belief.
5.
The Supreme Court of Israel examines the validity of legislation
in light of the basic principles of democracy and exercises judicial review
over all lower tribunals as well as religious courts. The Supreme Court
also sits as a High Court of Justice and as such exercises review over all
administrative acts and has jurisdiction over questions of human rights. The
power of the Supreme Court sitting as High Court of Justice is now embodied in
Section 15 (g) of the Basic Law: The Judiciary, 1984 (Laws of the State of
Israel (hereinafter 'L.S.I.') vol. 38, p. 101):
'15 (g) The Supreme Court shall also sit as a High Court of
Justice; sitting as such it shall deal with matters which it deems
necessary to grant relief in the interests of justice and which are not
within the jurisdiction of any other court of tribunal.'
6.
The Supreme Court sitting as the High Court of Justice stated the
following in American European Beth El Mission v. Minister of Social Welfare
(21 P.D. II 325, 333 (1967)):
'The rights and freedoms of the individual have always been an
essential part of Israeli common law, and therefore, inter alia,
standards for the interpretation of laws by the Israeli courts ... A
regulation which conflicts with the concepts of any of the human rights
recognized as such by the law of nations will be regarded by this court
as unreasonable and declared null and void by it.
'The fundamental doctrine of human rights as laid down by the
Universal Declaration of Human Rights, 1948 and the Convention on Civil
and Political Rights, 1966 are today the patrimony of all enlightened
peoples, whether or not they are members of the United Nations and
whether or not they have already ratified the Convention of 1966.'