Law and order

The laws and unforgettable court cases that define Israel's legal history.

By
April 29, 2008 18:05
supreme court 298.88

supreme court 224.88. (photo credit: Ariel Jerozolimski [file])

Law of Return The Law of Return gives expression to the essence of the Zionist movement, that is the inherent right of any Jew anywhere in the world to make his home in Israel. The law was approved unanimously in its final reading on July 5, 1950. In introducing the bill, prime minister David Ben-Gurion said it was one of the "cornerstone laws of the State of Israel. It contains a central goal of our state, the goal of the ingathering of the exiles. The law establishes that it is not the state that grants Diaspora Jews the right to settle in Israel but that the right is inherent in every Jew." The original law granted automatic citizenship to any Jew who expressed the desire to live in Israel. But it did not define who was a Jew. That question arose when Brother Daniel, a Jewish convert to Catholicism, asked to immigrate according to the Law of Return. The High Court rejected the request because he had converted to Christianity even though he remained Jewish according to Halacha. It also upheld the request of Benjamin Shalit to register the nationality of his children as Jewish even though their mother was Christian. These decisions forced the Knesset to address the question of who is a Jew in the context of the Law of Return. In 1970, it passed an amendment defining a Jew as a person born of a Jewish mother or a convert to Judaism and who is not a member of another religion. The amendment has become the focus of a bitter dispute between the Orthodox establishment and the Diaspora. Meanwhile another amendment, granting the right of return to non-Jews with a Jewish parent or grandparent has, ironically, led to the influx of hundreds of thousands of non-Jewish citizens from the former Soviet Union. Law to Equalize the Rights of Women The 1951 Law to Equalize the Rights of Women was the first human rights legislation passed by the Knesset. The legislature made a symbolic point by insisting on approving it in the First Knesset to emphasize its fundamental importance. The law gave women equal standing in all legal matters. It gave married women the right to control their personal property and maintain sole ownership of property acquired before marriage. It declared that husbands and wives were equal custodians of their children. The legislation, which has been amended several times since, was regarded by most of the parties as the necessary and logical outcome of the participation of women in the struggles of the Yishuv and the creation of the state. "It is only right that our young state should reflect the status of women according to the many accomplishments they have made not only in the past three years but over the many years before that in the arts, agricultural settlement, the economy and in public life," MK Hasia Dror told the Knesset. But approval of the law was not merely the spontaneous expression of male goodwill. It was preceded by three decades of struggle by women to advance their rights. For example, it was only in 1926 that women were allowed to vote in elections for local authorities and the Yishuv leadership. Furthermore, the haredi and Arab MKs opposed the new legislation while MK Ari Jabotinsky referred to "pressure against the law, including acts of violence, burning of cars and a threat to burn down the Knesset if the law was passed." Some of the female MKs criticized the law because it did not recognize joint husband-wife ownership of property amassed after the marriage or because it did not address the discrimination against women in the rabbinical courts. 'Kol Ha'am' case The Kol Ha'am verdict handed down by the High Court of Justice on March 16, 1953, enunciated for the first time the fundamental importance of protecting the right of freedom of expression in the nascent state. It also helped shape the court's orientation towards Western liberal values by referring to British and American precedent. The verdict was an "activist" one in the sense that the court provided its own interpretation of the law and, in doing so, prevented the government from implementing its will on a matter which had to do, or so it claimed, with national security. Looking back 55 years later, the court's decision may seem obvious. But it wasn't at the time. In the early 1950s, anti-Semitism increased in the Soviet Union and the communist government in Prague executed Rudolf Slansky and 11 other Jews on trumped-up charges. The Communist Party in Israel (Maki) and its newspapers, Kol Ha'am and Al-Itihad, enthusiastically supported Stalin's policies. The government was so infuriated by Maki that it suspended Kol Ha'am for 10 days and Al-Itihad for 15 after they wrote editorials attacking the government's pro-US stand in the Cold War. It did so according to a law allowing it to suspend a newspaper if an article was "likely to endanger the public peace." The newspapers petitioned the High Court to revoke the order. The court ruled in favor of the newspapers. It wrote that because of the fundamental importance of the principle of freedom of expression, the government should interpret the word "likely" to mean that there must be a "high probability" the article would endanger public peace. That interpretation has been carried over into the 2002 Incitement Law, which prohibits a publication only if it manifests a "substantial probability" that it will lead to violence or terror. The Kastner trial The so-called Yisrael (Rudolph) Kastner trial was the first major Holocaust trial to take place in Israel. Unlike the Eichmann case, which tried the Nazi regime, here it was the victims and survivors of the Holocaust, their leaders and the Yishuv's Mapai leadership that were put on the docket. The 1955 trial was actually a criminal libel case against Malkiel Grunwald, a pamphleteer who had written a vicious diatribe against Kastner, accusing him of collaborating with the Nazis for personal gain and of saving an alleged Nazi war criminal to protect himself. Kastner had been one of the leaders of the Hungarian Jewish community. In 1944, he made deals with Adolf Eichmann to buy the lives of 1,684 Jews, who escaped by train to Switzerland for $1,500 per head and to keep another 20,000 Jews alive at $100 per head. The hundreds of thousands of Holocaust survivors who came to Palestine or Israel after the war were not warmly received here. The local Jewish population regarded them as weaklings who had gone like sheep to the slaughter, or cowards who could only buy off their persecutors. They were the antithesis of the proud and tough Israeli. Grunwald's lawyer, 31-year-old Shmuel Tamir, a fiery and ambitious member of the opposition Herut Party, took advantage of the trial to castigate European Jewry and leaders like Kastner, who had cooperated with the Nazis, as well as Mapai leaders. During questioning, Tamir managed to humiliate Kastner, convince Jerusalem District Court Judge Binyamin Halevi that the allegations against him were true and rally public opinion to his side. The trial became a sensation. Halevi rejected the lawsuit and found Kastner guilty of most of Grunwald's accusations. Afterwards, the Supreme Court overturned the decision, but by then it was too late for Kastner. He was assassinated outside his home in March 1957. Basic Law: Human Dignity and Liberty The Basic Law: Human Dignity and Liberty constitutes the cornerstone of Israel's shaky, incomplete and controversial bill of rights. The law was passed on March 17, 1992 by a vote of 32 to 21, one day before the end of the 12th Knesset. Many MKs who opposed it did not participate in the vote because they were campaigning in party primaries for the upcoming election. The human rights granted by the law are fragmentary. They include a prohibition on violations of life, body, dignity or property and guarantee the right to privacy and personal liberty. These rights were the most the bill's initiators could achieve in their negotiations with the religious parties and other potential opponents of a written constitution. To reach an accommodation with religious MKs, the law also declared that Israel's values were both Jewish and democratic. The basic law did not expressly state that it was superior to regular legislation. However, it was clear to its initiators and to opponents like Michael Eitan (Likud) that this was so. The creation of a hierarchy of laws naturally bestowed on the High Court the right of judicial review to determine whether or not a "regular" law was compatible with the basic law. Even though the law's initiators, including Uriel Lynn, Dan Meridor and Amnon Rubinstein, emphasized that the Basic Law: Human Dignity and Liberty was a constitutional law, it might have been treated as just another piece of legislation had it not been for the High Court of Justice. In September 1992, Justice Aharon Barak announced that the law had created a constitutional revolution. In his Bank Mizrahi verdict, he provided the legal underpinning for his declaration and introduced a new era in the country's legal history.


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