Adapted with permission from the Israeli Ministry of Foreign Affairs.
The question as to whether freedom of religion in all its aspects is adequately protected in any society can be answered by a careful examination of the relevant doctrines and practices of its legal system. There are significant sources for the protection of religious liberty in Israeli law. There have also been various efforts to incorporate religious norms or restrictions that reflect religious sources into the law of the land and an evaluation of these is part of any investigation of Israel’s adherence to principles of freedom of conscience and religion.
Religious Liberty
The Palestine Mandate of 1922 [in which Britain controlled the area that is now considered Israel proper, territories under the Palestinian Authority, and Jordan] contained a number of provisions ensuring freedom of religion and conscience and protection of holy places, as well as prohibiting discrimination on religious grounds. Further, the Palestine Order in Council of that same year provided that “all persons … shall enjoy full liberty of conscience and the free exercise of their forms of worship, subject only to the maintenance of public order and morals.” It also lays down that “no ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship.” These provisions of the Mandate and of the Palestine Orders in Councils have been recognized in the Israeli legal system and are instructive of Israeli policy in safeguarding freedom of conscience and religion
Dome of the Rock
in Jerusalem
Israel’s Declaration of Independence, promulgated at the termination of the British Mandate in 1948, is another legal source that guarantees freedom of religion and conscience, and equality of social and political rights irrespective of religion. Although the Declaration itself does not confer any legally enforceable rights, the High Court has held that “it provides a pattern of life for citizens of the State and requires every State authority to be guided by its principles.”
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Freedom of Worship and Conscience
To support the fundamental existence of the right of freedom of conscience and religion, the courts have also relied on the fact that Israel is a democratic and enlightened state. In one significant court decision, Justice Moshe Landau stated:
“The freedom of conscience and worship is one of the individual’s liberties assured in every enlightened democratic regime.” In dealing with questions of religious freedom, as well as other human rights, the courts have also resorted to the Universal Declaration of Human Rights and the International Covenant on Political and Civil Rights that reflect “the basic principles of equality, freedom and justice which are the heritage of all modern enlightened states.” In doing so, the courts have required that two conditions be met: that the principle in question is common to all enlightened countries, and that no contrary domestic law exists. In this regard, Justice Haim Cohn has said:
“It is decided law that rules of International law constitute part of the law prevailing in Israel insofar as they have been accepted by the majority of the nations of the world and are not inconsistent with any enactment of the Knesset (Parliament). The principles of freedom of religion are similar to the other rights of man, as these have been laid down in the Universal Declaration of Human Rights, 1948, and in the Covenant on Political and Civil Rights, 1965. These are now the heritage of all enlightened peoples, whether or not they are members of the United Nations Organization and whether or not they have as yet ratified them. . . for they have been drawn up by legal experts from all countries of the world and been prescribed by the [General] Assembly of the United Nations, in which by far the larger part of the nations of the world participates.”
Justice Landau also emphasized the right of freedom of conscience:
“Every person in Israel enjoys freedom of conscience, of belief, of religion, and of worship. This freedom is guaranteed to every person in every enlightened, democratic regime, and therefore it is guaranteed to every person in Israel. It is one of the fundamental principles upon which the State of Israel is based… This freedom is partly based on Article 83 of the Palestine Order in Council of 1922, and partly it is one of those fundamental rights that “are not written in the book” but derive directly from the nature of our state as a peace-loving, democratic state… On the basis of the rules–and in accordance with the Declaration of Independence–every law and every power will be interpreted as recognizing freedom of conscience, of belief, of religion, and of worship.”
Israel’s Supreme Court has not yet ruled squarely on the issue of the protection of religious liberty under the Basic Law: Human Dignity and Liberty. However, 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, inter alia, freedom of religion and conscience, which consequently has the status of a supreme, constitutional legal norm. Thus, for example, during the Gulf War, the Supreme Court ruled that when supplying gas masks, the government should endeavor to supply special masks for religious men who maintain beards out of religious conviction.
Knesset
Pronounced: k’NESS-et, Origin: Hebrew, Israel’s parliament, comprising 120 seats.
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Moshe
Pronounced: moe-SHEH, Origin: Hebrew, Moses, whom God chooses to lead the Jews out of Egypt.
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