‘Jewish and democratic’ were never in question for state’s founders, scholar says
Government attorney’s critical claims in High Court about Declaration of Independence are partially inaccurate and ‘totally explosive,’ argues author of recent book on early Israel
Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel
The Declaration of the Establishment of the State of Israel, more commonly known as Israel’s Declaration of Independence, is the founding document that accompanied the formal announcement of the Israeli state on May 14, 1948. Today, it holds an elevated, but unofficial, position in constitutional jurisprudence.
On Tuesday, a lawyer representing Prime Minister Benjamin Netanyahu’s government caused a stir by attacking the document at the High Court of Justice.
Specifically, Ilan Bombach swatted down the declaration to argue against the contention of some justices that the Knesset’s legislative authority emanates from the document. Justices also hinted that the High Court may have the authority to invalidate a Basic Law that contradicts the idea of Israel as a Jewish and democratic state, as set out in the Declaration.
Tuesday’s hearing spanned 13 hours of arguments over whether the court can nix an amendment to Basic Law: The Judiciary, which blocks judicial scrutiny over cabinet decisions based on the reasonableness doctrine and which the coalition passed in July. If it chooses to do so, it would be the first time that the court invalidated a Basic Law, a class of laws it recognizes as having quasi-constitutional weight.
Mordechai Naor, a researcher and author of a recent book on Israel’s founding moments, “The Friday That Changed Destiny,” said Bombach’s remarks were partially inaccurate and “totally explosive,” because “he totally dismissed” the founding document.
Bombach, the private attorney hired by the government after the attorney general refused to defend the law, dismissed the declaration as a “hasty” document sanctified by unelected signatories and one that the High Court of Justice could not rely upon as a source of legal authority.
It was not even “representative of Israel at the time. There were no Arabs, there were only two women.”
Thus, he added, it was “unthinkable” to say the declaration must “bind all future generations.”
“Because 37 people were authorized to sign the hasty Declaration of Independence, which was still being drafted until the last moment, this should obligate people who came later?” Bombach said in court.
Naor, however, challenged both Bombach’s characterization of the standing of the 37-member People’s Council and the founders’ intent in drafting the consequential document.
Did an unelected body create the Declaration of Independence?
The People’s Council that drafted and signed Israel’s Declaration of Independence was not elected as a council, Naor said, but it did pull its membership from other elected bodies, as well as solicit appointments from the community.
The first source of council members was the British Mandate-recognized Jewish National Council, which was the executive authority of the Jewish community’s Assembly of Representatives. The Jewish National Council held its fourth and final election in 1944, and contributed 14 representatives to the People’s Council.
In addition, the Jewish Agency’s representative body in Israel, whose delegates Naor said were last elected in the 1946 Zionist Congress, sent 12 members to the People’s Council.
The remaining 11 were solicited from community organizations that did not take part in either of the two other bodies, including from the ultra-Orthodox movement Agudat Yisrael.
Bombach was correct in claiming that only two women were part of the council, and no Arabs; the Jewish community was nearly half a year into its War of Independence, which pitted the Jewish proto-state against the Arab community and neighboring Arab nations.
In the ‘hasty’ drafting, were ‘Jewish’ and ‘democratic’ under debate?
“All of this was done with huge internal pressure,” Naor said of the roughly three weeks the People’s Council had to draft its declaration. In addition to posing existential challenges to the fledgling Israel, the ongoing war also physically blocked several members from attending council meetings.
Bombach said the declaration, even “at the last moment, was still going through drafts.” Naor said that the declaration had several versions and was only finalized shortly before its publication, but that the central issue of Israel’s Jewish and democratic character had never been in contention.
“They didn’t talk about it at all. There was no fight about it,” he said. “Jewish” is explicitly stated in the Declaration, while “democratic,” he said, is implied.
“If they give freedom to everyone… and guarantee equality,” Naor said, “it was clear to them that the idea of democracy was part of [the declaration].”
The declaration itself reads: “The State of Israel… will 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.”
Is the declaration a guide or a suggestion?
While Naor said he was not familiar with any debate about the intended longevity of the document, and the declaration itself has no official legal standing, the document continues to be influential, especially given Israel’s failure to draft a constitution.
Suzie Navot, a constitutional law expert with the Israel Democracy Institute, said that both the court and Knesset have relied upon its tenets.
The declaration, she told Army Radio on Wednesday, provided the rationale for and is cited in Basic Law: Human Dignity and Liberty, one of Israel’s constitutional stand-ins.
The law itself opens with an explicit nod to the document, stating that its protections are in “the spirit of the principles included in the Declaration of the Establishment of the State of Israel.”
The declaration has also been invoked to invalidate an anti-Israel party from running for Knesset, as the party’s radical platform contradicted the declaration’s values.
Opposition parties and popular protest movements against the government’s judicial overhaul have adopted the Declaration of Independence as their rallying cry. Weekly protests feature demonstrations marching with enlarged copies of the declaration, and Opposition Leader Yair Lapid recently pinned a copy of it to his lapel during a Knesset debate, arguing that the declaration should be adopted into law.
Navot noted that the founding document’s precise legal weight has been legitimately debated throughout Israel’s 75-year history and remains an open question. Chief Justice Esther Hayut has hinted that the court can invalidate a Basic Law — which it has never yet done, but is considering in Bombach’s case — if the law in question runs afoul of the declaration’s Jewish and democratic spirit.
Bombach, although arguing against the court’s right to invalidate a Basic Law, later clarified that he believed the declaration has value, but no legal authority.
