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For a pdf version of Adalah's "The Democratic Constitution", please click here.
A Word from the Chairman of the Board of
Directors
On the tenth anniversary
of its founding, Adalah is issuing “The Democratic Constitution,” as a
constitutional proposal for the state of Israel based on the concept of a
democratic, bilingual, multicultural state. This proposed constitution draws on
universal principles and international conventions on human rights, the
experiences of nations and the constitutions of various democratic states.
In recent years, Israeli
groups have put forward different constitutions for the state of Israel.
However, these proposals are distinguished by their lack of conformity with
democratic principles, in particular the right to complete equality of all
residents and citizens, and their treatment of Arab citizens as if they were
strangers in this land, where history, memory and collective rights exist only
for Jewish people. It is no coincidence therefore that these proposals have
been preoccupied with the question of, “Who is a Jew?” and neglecting the
primary constitutional question of, “Who is a citizen?”
Thus, we decided to
propose a democratic constitution, which respects the freedoms of the
individual and the rights of all groups in equal measure, gives the proper
weight to the historical injustices committed against Arab citizens of Israel, and
deals seriously with the social and economic rights of all. If “The Democratic
Constitution” succeeds to underscore the enormous gap between it and the other
proposals, and to create an objective public debate and dialogue on the nature
of rights and freedoms in the country, then we will have taken an important
step forward in the issues of racial equality, freedoms and social justice.
Work was undertaken on
preparing this constitution for around two years, during which numerous
meetings and study days for Adalah’s staff, Board and General Assembly were
held. In my name, and in the name of Adalah, I offer my gratitude and
appreciation to the professional staff of Adalah and to its General Director
Attorney Hassan Jabareen for all of their efforts in preparing this proposed
constitution to a high professional level, while adhering to the humanitarian
principles on which it is based. I would also like to thank my colleagues in
Adalah’s Board and the members of the General Assembly, as well as all my
professional colleagues in Israel
and abroad who participated in discussing the various drafts and enriched the
discussions with their observations and suggestions.
It should be noted that
the preparation of this constitutional proposal was accompanied by the
preparation of two other important documents, which were drafted by two teams
composed of the intellectual elite, and community and political activists: “The
Future Vision for the Palestinian Arabs in Israel,” which was prepared by a
team consisting of the head of the High Follow-up Committee for the Arabs in
Israel on behalf of National Committee for Arab Mayors; and “The Haifa
Covenant,” which was prepared by a team consisting of Mada al-Carmel - Arab
Center For Applied Social Research, which will be published shortly. Many of
Adalah’s members also took part in the work of these two teams. Each of these
documents has its own distinguishing feature and complements the others, and
each comes as an expression of the political and social empowerment of the Arab
citizens of Israel.
Although the formulation
of this constitution is at an advanced stage, we consider it a draft proposal
open for discussion for a period of one year, in order to allow for public
interaction with it. We hope at the end of this process to arrive at a final
version of this important project.
Professor Marwan Dwairy,
Chairman of the Board of Directors of Adalah
February 2007
The Democratic Constitution
Chapter One: Introduction
1
The Universal Declaration of Human Rights of 1948, which
enshrined the human rights lessons of the evils committed during World War II,
and the international human rights covenants, which were subsequently ratified,
state that: All human beings are equal; antidiscrimination is an absolute
principle which cannot be compromised; all peoples have the right of
self-determination; no nation possesses rights that are superior to those of
another nation; and it is essential to ensure the personal liberty and economic
and social rights of the individual for freedom, equality and justice to be
achieved.
2
After the end of World War II, and as a result of their long
and just struggle against colonial regimes, many nations succeeded to attain
their independence and realize their right of self-determination. In the last
two decades, historic processes have taken place in states where policies of
repression and discrimination had reigned. The end of the apartheid regime in South Africa is
the most prominent example. These states have derived lessons from the past and
promoted historic reconciliation, based on recognition of the historical
injustice these policies inflicted on groups that were repressed and
discriminated against, and ensured the effective participation of these groups
in the process of constitution-making.
3
Based on universal principles, international human rights
covenants and the experience of nations, we – as a human rights organization –
seek to propose a constitution, which contains provisions on the governing
regime and on rights and liberties, as detailed below. We believe this
constitutional proposal should be incorporated in the laws and/or the future
constitution of the State of Israel.
4
In order to build an equal and democratic society, free of
repression and violence, and as a basis for historic reconciliation between the
State of Israel and the Palestinian people and the entire Arab nation, the
State of Israel must recognize its responsibility for past injustices suffered
by the Palestinian people, both before and after its establishment. The State
of Israel must recognize, therefore, its responsibility for the injustices of
the Nakba and the Occupation; recognize the right of return of the Palestinian
refugees based on UN Resolution 194; recognize the right of the Palestinian
people to self-determination; and withdraw from all of the territories occupied
in 1967.
5
The Palestinian Arab citizens of the State of Israel have
lived in their homeland for innumerable generations. Here they were born, here
their historic roots have grown, and here their national and cultural life has
developed and flourished. They are active contributors to human history and
culture as part of the Arab and Islamic nations and as an inseparable part of
the Palestinian people.
6
Since their political status has been changed against their
will, making them a minority in their homeland; since they have not
relinquished their national identity; and since the rights of a homeland
minority must include, inter alia, those rights which should have been
preserved and developed as much as possible had they not become a minority in
their homeland, thus, the legal starting point of this constitutional proposal
is: The Arab citizens in the State of Israel are a homeland minority.
7
The policies and practices of Israeli governments have
caused severe injustice to the Palestinian Arab minority since 1948, some of
which continues today, including this minority’s physical detachment from its people
and nation, the uprooting and destruction of villages, the demolition of homes,
the imposition of military rule until 1966, the massacre of Kufr Qassem in
1956, the killing of young people during the first Land Day in 1976 and in mass
protests of October 2000, the confiscation of properties from the Muslim Waqf,
the expropriation of land, the non-recognition of Arab villages, the separation
of families, policies of institutional discrimination in all fields of life,
and the exclusion of the Arab minority based on the definition of the state as
Jewish. Therefore, the following constitutional proposal determines that the
basic rights of the Arab minority include: the return of land and properties on
the basis of restorative justice, effective participation in decision-making,
the fulfillment of the right to cultural autonomy and the recognition of the
Arabic language as an official language in the State of Israel.
8
The dignity and personal liberty of the individual
constitute the basis for maintaining a society founded on human rights.
However, the realization of these rights is conditional upon the existence of a
society based on equality. Therefore, this constitutional proposal determines
the duty to guarantee and protect the economic and social rights of all
residents and citizens, especially the most needy.
9
In a state that does not control or occupy another people
and that is based on full equality between all of its residents and between all
of the different groups within it, Jewish and Arab citizens shall respect each
other’s rights to live in peace, dignity and equality, and will be united in
recognizing and respecting the differences between them, as well as the
differences that exist between all the groups in a democratic, bilingual and
multicultural state.1
(Approved by Adalah’s General Assembly on
15 July 2006)
1 Explanatory notes: The introduction The purpose of this
introduction is to explain the principles which guided us in the writing of
this constitutional proposal. We believe that the preamble of a future
constitution for the State of Israel must be written, if at all, with the
political agreement of the representatives of all the interested parties. The
liberties and rights in this constitutional proposal are based, inter alia, on
the constitutions and legal experience of many democratic states. They are also
based on international human rights covenants and declarations, particularly
the following: the Universal Declaration of Human Rights (1948), the Convention
on the Prevention and Punishment of the Crime of Genocide (1948); the UNESCO
Convention against Discrimination in Education (1960); the International
Covenant on Civil and Political Rights (1966); the International Convention on
the Elimination of All Forms of Racial Discrimination (1966); the International
Covenant on Economic, Social and Cultural Rights (1966), the International
Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families (1990), and the UN Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious and Linguistic Minorities (1992).
Chapter Two: The Foundations of the
Regime
The
State of Israel2
1. The borders of the State of Israel are the
borders of the territory which was subject to the Israeli law until 5 June
1967.
A democratic state
2. The State of Israel is a democratic state, based
on the values of human dignity, liberty and equality.
The supremacy of the Constitution
3. The Constitution is the supreme legal norm in
the State of Israel.
The parliament
1
The Knesset is the legislative authority of the state.
2
The Knesset is the house of representatives of the state and
is comprised of 120 members.
A multi-party parliamentary regime
6. The democratic regime is based on a multi-party
parliamentary system that conducts free, equal, proportional and secret-ballot
elections once every four years to ensure appropriate representation for the
national and religious groups.
2 Explanatory notes: The state’s borders The demarcation of the borders of
the State of Israel in the Constitution is also critical for issues of civil
rights. The historical importance of the territory-citizenship synthesis began
with the Treaty of Westphalia (1648) in Europe.
Previously, the connection between citizens and the regime was not based on
territory, but rather on tribal allegiance, religious affiliation, contact with
the church, and/or the lifestyle of a group. According to this order, the Ottoman Empire, for example, granted religious autonomy
to groups because of a tribal rather than a democratic orientation. The test of
belonging to “a clear territory” facilitated the definition of “Who the citizen
is” that stands as an equal before the state without intermediary agents. This
is particularly true with regard to the State of Israel, where the lack of a
defined border contributed to the fact that tribal and ethnic affiliation
became the essence of citizenship. This also explains why Israeli law deals
with “Who a Jew is” and not “Who a citizen is”; and it is no coincidence that
the citizenship of Jews living outside the Green Line, for example, is stronger
than that of the Arab citizens who live within the Green Line. It is also no
coincidence that proposals are put forward for the transfer of the citizenship
of some of the Arab citizens (in the Triangle area) as part of an exchange of
populations. Indeed, the public perception that the citizenship of some of the
citizenry is temporary due to a lack of defined borders will continually harm
the everyday status of these citizens, thereby affirming the truth of the
statement: Empires have frontiers, but democracies have borders.
7. Every adult citizen is entitled to elect and to
be elected to the Knesset.
The
government
1
The government is comprised of the prime minister and other
ministers, and derives its authority to govern from the confidence of the
Knesset.
2
The government is the body authorized to administer all
divisions of the executive branch.
3
The government will exercise its functions subject to and in
accordance with the Constitution and the law.
The
judicial authority3
1
The judicial authority has the power to adjudicate,
including the power to annul laws which are in contradiction of the
Constitution.
2
The courts which have the power to adjudicate in the state
are the Supreme Court, the District Courts, the Magistrates’ Courts and other
courts, and tribunals established under the law.
3
The decisions of the Supreme Court will be binding on all
the other courts of the judicial authority, except the Supreme Court.
4
Nominations of judges to the judicial authority will be made
on the basis of the nominees’ expertise and knowledge of the law, as well as
their experience, independence and commitment to the Constitution.
Citizenship
15. The laws of citizenship and immigration will be
established on the basis of the principle of anti-discrimination and will
define the arrangements by which the State of Israel will grant citizenship
to:
A. Anyone who was born within the territory
of the State of Israel and whose parent was also born within the territory of
the State of Israel;
B. Anyone who was born to a parent who is a
citizen of the state;
3 Explanatory notes: The three authorities We relate to the three authorities –
the executive, legislative and judicial – inasmuch as they are relevant to the
essence of the Constitution and inasmuch as they have an effect on the
democratic regime. Parliament-enacted legislation is the appropriate way in
which to detail the administrative aspects of those authorities which have not
been detailed here, such as committees of the Knesset, the composition of the
government, the number of ministers, and the duration of the terms of office of
judges. In addition, we did not perceive a need in this Constitution to relate
to other institutions which could be regulated by legislation, such as the
presidency of the state, because their existence as an institution is not
material to the functioning of a multi-party parliamentary regime. Moreover,
every future piece of legislation which relates to the functions and
administration of all such authorities will be subject to the Constitution.
C. The spouse of a citizen of the state;
D. Those who arrive or remain in the state
due to humanitarian reasons, including those who are persecuted on the basis of
political background.
16. The citizenship of an
Israeli citizen cannot be revoked.
A bilingual state4
17. A. Hebrew and Arabic are
the official languages of the State of Israel and enjoy equal status in all of
the functions and activities of the legislative and executive branches.
B. All official announcements, including
laws, ordinances and regulations, will come into effect when they are
published, printed and disseminated simultaneously in the two official
languages.
C. The rulings of the Supreme Court, the
District Courts and the appeals tribunals will be published, printed and
disseminated in the two official languages immediately upon being issued.
D. Each litigant is entitled to use either
of the two official languages, according to his or her choice, in legal
proceedings, and is entitled to receive full service in his or her case in the
language of his or her choice: immediate and simultaneous translation in
hearings, protocols, court documents, decisions and rulings.
E. Mixed local authorities will use the two
official languages in an equal manner in all of their functions and activities.
F. Two kinds of educational institutions
will be established in Hebrew and in Arabic, including institutions of higher
learning; and every person will be entitled to choose to learn in an
educational institution in which learning is conducted in one of the two
official languages.
G. Laws will be enacted to grant appropriate
and equal status to the two official languages in the national electronic
media.
4 Explanatory notes: Official languages Determining the use of
official languages was based on our perception of the essence of “an imaginary
federal regime.” Therefore it is proposed, for example, that both official
languages be used equally in all of the activities of the legislative and
executive branches, as well as in the activities of the judicial branch from
the district level and above. Therefore, the small autonomous units, such as
the local authority of the village, the non-mixed city, the small community and
the local courts (the lower courts such as Magistrates’ Courts and religious
courts) will be authorized to use a single official language of the locality
unless otherwise stipulated.
A multicultural state5
18. A. Each group that
constitutes a national minority is entitled to educational and cultural
institutions; each group that constitutes a religious minority is entitled to
religious institutions.
B. All the groups mentioned in (A) are
entitled to operate their institutions via a representative body chosen by the
members of the group (hereafter: the representative body).
C. The State of Israel will allocate a suitable
budget to the representative body for operating the institutions to ensure
their existence in good quality and at a level equal to that of the majority’s
institutions.
D. All the historical, cultural and holy
sites of all of the groups shall be preserved and protected from any damage or
harm to the dignity and sanctity of the site.
E. The dignity, equality and liberty of a person
subject to the decisions of the representative body must be respected.
F. Every citizen affiliated with one of the
aforementioned groups is entitled to maintain his or her identity and culture
in public life, and to develop and practice them.
G. Every citizen is entitled to establish
and maintain his or her family, social, cultural, religious and economic
relations with members of his or her people or nation, including the right to
freely cross borders to them.
H. These minority groups are entitled to
appropriate representation in all of the governmental authorities of the state.
Symbols
19. The symbols of the state
will be defined by law in accordance with article 20, below.
Participation in
decision-making in the Knesset
20. Model I
A. A parliamentary committee will be formed
that will be called “the Parliamentary Committee for Bilingual and
Multicultural Affairs.” Half of the committee members will be members of
parliament from parties that by definition and character are Arab parties or Arab-Jewish
parties.
5 Explanatory notes:
Multiculturalism The
source of these rights is stated in article 27 of the International Covenant on
Civil and Political Rights, to which the State of Israel is a party. The scope
and interpretation of this article was declared in the UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (1992).
B. No laws will be enacted in the Knesset or
statutes approved in parliamentary committees on issues related to the instructions
of this Chapter without the prior consent of the Parliamentary Committee for
Bilingual and Multicultural Affairs. However, the Knesset plenum will be
authorized to enact or approve such legislation, overruling the committee’s
decision, by a special majority of no less than two-thirds of the members of
the Knesset.
C. This article will come into effect during
an interim period to be agreed upon in order to establish and implement the
principles of this Chapter.
Model II
A. No bill will be approved by the plenum of
the Knesset if 75% of the members of the Knesset who belong to parties which by
their definition or character are Arab parties or Arab-Jewish parties vote
against it under the reasoning that the bill violates the fundamental rights of
the Arab minority.
B. This
article will come into effect during an interim period to be agreed upon in
order to establish and implement the principles of this Chapter.6
6 Explanatory notes: Participation in decision-making in the
parliament: Article
20 relies on the principle of power-sharing by minorities in government,
especially in the case of homeland minorities, national minorities or
linguistic minorities. We have proposed two alternative models here as examples
of the implementation of this principle, but they are certainly not the only
models that could implement this principle. Defining the type of model is a
matter for political agreement between the representatives. In states where
minorities have been granted territorial autonomy and in some federal states
this principle is implemented at various levels. In Canada,
for example, the province
of Quebec enjoys
territorial autonomy as well as the right of veto on matters of language at the
federal level. Article 2 of the Belgian constitution stipulates that Belgium
is comprised of three linguistic communities and that each of these enjoys
non-territorial autonomy in matters of education, health, language policy and
culture. In areas of the central government’s purview, where communal autonomy
does not apply, the communities are entitled to a group veto procedure: If 75%
of the linguistic community’s representatives in Belgium’s federal parliament
indicate that a certain issue is liable to affect the life of one of the
communities, the related bill is to be sent to the federal cabinet, which must
propose alternatives. This mechanism helps to mediate and arbitrate. Macedonia
stipulated in its constitution of 1991 that it is the state of the Macedonian
people, despite the fact that 20-25% of the population comprises indigenous
Albanians. As a result of the determined opposition of the Albanians, the Ohrid
Accord of 2001 states that Macedonia is the state of the Macedonians, Albanians
and other ethnic minorities. According to the current constitution, veto power
is granted to the Albanian minority on constitutional amendments pertaining to
culture and language, as well as major appointments. Additionally, in Northern Ireland
governmental institutions and power-sharing were established according to the
Good Friday Agreement of 1998, which defined a complex system of veto
arrangements between the Catholics and Protestants. These are merely examples.
We did not set a date for ending the interim period because that is a matter
for political agreement. We did not offer such power-sharing to other groups
because: firstly, the Arab minority is a homeland minority; secondly, the two
national groups (Arabs and Jews) are the two only groups that have established
a distinct and clear category of “the other” vis-à-vis each other in a very
clear and sharp way; and thirdly, serious weight was given to the historical
fact that the representatives of the Arab minority in the parliament are the
only representatives to have been in opposition since 1948.
Chapter Three: Rights and Freedoms
I:
Fundamental Freedoms7
Basic principles
21. A person’s basic rights in the State of Israel
are rooted in the values of the sanctity of human life, dignity, equality and
freedom, as well as the principles of distributive and restorative justice.
The right to life and limb
22. Every person is entitled to the protection of
his or her life and body, including protection from torture, violence, and
cruel, inhuman or degrading treatment.
The right to dignity
23. Every person is entitled to the protection of
his or her dignity.
Equality and anti-discrimination
24. Every person is equal before the law and is
entitled to equal protection; no person should suffer direct or indirect
discrimination based on national affiliation, religion, race, sex, color,
ethnic origin, sexual orientation, disability or age.
Personal liberty
25. Every person is entitled
to his or her personal liberty; this liberty shall not be restricted except by
a law enacted for a necessary purpose which is in accordance with the basic
principles of a bilingual and multicultural democratic society, and to an
extent that is no greater than is required.
7 Explanatory notes:
Fundamental freedoms Not all of the freedoms are relative and as a consequence we
specifically chose to add the limitations clause only to those that are
inherently relative. The language of the limitations clause states that the
fundamental freedoms can be restricted only “by a law enacted for a necessary
purpose which is in accordance with the basic principles of a bilingual and
multicultural democratic society, and to an extent that is no greater than is
required.” However, the limitations clause was not attached to rights which, by
their nature, may not be restricted. The Basic Law for the Federal Republic of
Germany, which was enacted immediately after the end of World War II, is a good
example of this distinction. Thus, for example, on the basis of this
Constitution, a person’s right to life and limb cannot be violated by the state
in any circumstance. The right to anti-discrimination is an absolute right that
cannot be compromised. It is not by chance that the International Convention on
Civil and Political Rights does not allow states to violate this right even in
a state of emergency, because the experience of nations has taught that
violation of this right during war situations has led to repression and in some
cases even to extermination.
The right to a family
life
26. Every resident or
citizen has the right to establish and maintain a family life in the State of
Israel.
The rights of the child
1
Every child will receive a name upon birth, and will be
entitled to a physical connection to his or her parents, family and
surroundings, ensuring his or her appropriate development and welfare.
2
Every child is entitled to protection against neglect or
negligent treatment and exploitation, and is to be protected from all types of
discrimination, including discrimination based on the status, activities,
opinions or beliefs of his or her parents, legal guardians or family members.
Freedom of conscience
and freedom of religion
29. Every person is entitled
to freedom of conscience, faith, opinion, religion and religious ritual, and no
religious-based action or inaction will be imposed; these liberties shall not
be restricted except by a law enacted for a necessary purpose which is in
accordance with the basic principles of a bilingual and multicultural
democratic society, and to an extent that is no greater than is required.
Freedom of expression
and association
30. A. Every person is
entitled to express opinions, write, demonstrate, assemble, conduct research
and enjoy artistic and creative freedom.
B.
Every person is entitled to associate
with others and to form political parties.
C.
Freedom of expression and freedom of association shall not be restricted except
by a law enacted for a necessary purpose which is in accordance with the basic
principles of a bilingual and multicultural democratic society, and to an
extent that is no greater than is required.
Right to privacy
31. A. Every person is
entitled to privacy; no invasion into the personal realm is allowed without his
or her consent; body searches or searches of his or her property or home shall
not be conducted, and the confidentiality of his or her conversations or
writings shall not be violated.
B. The right to privacy shall not be restricted
except by a law enacted for a necessary purpose which is in accordance with the
basic principles of a bilingual and multicultural democratic society, and to an
extent that is no greater than is required.
Freedom of movement
32. A. Every resident or citizen is entitled
to enter the State of Israel, and every person is entitled to exit the state.
B. Every person is entitled freedom of movement
within the State of Israel.
C. An individual’s freedom of movement shall not
be restricted except by a law enacted for a necessary purpose which is in
accordance with the basic principles of a bilingual and multicultural
democratic society, and to an extent that is no greater than is required.
Freedom of information
33. Every resident or citizen is entitled to access
information and receive information from the authorities; this right shall not
be restricted except by a law enacted for a necessary purpose which is in accordance
with the basic principles of a bilingual and multicultural democratic society,
and to an extent that is no greater than is required.
Freedom of occupation
34. Every resident or citizen is entitled to engage
in any occupation, profession or work; this right shall not be restricted
except by a law enacted for a necessary purpose which is in accordance with the
basic principles of a bilingual and multicultural democratic society, and to an
extent that is no greater than is required.
Environment
35. Every person is entitled to an environment free
of health hazards, diseases and all types of pollution; this right shall not be
restricted except by a law enacted for a necessary purpose which is in
accordance with the basic principles of a bilingual and multicultural
democratic society, and to an extent that is no greater than is required.
II:
Distributive and Restorative Justice8
The right to property
36. Every person is entitled to his or her property;
this right shall not be restricted except by
8 Explanatory notes:
Distributive justice and restorative justice The articles referring to
restitution of land, compensation and recognition of traditional title of Arab
Bedouin are familiar to many judicial systems. The constitution of South Africa
addresses the principle of restitution. In Canada,
the United States and Australia,
for example, similar rights were recognized for the indigenous peoples and
natives. International principles of human rights also address these rights:
the Convention (No. 169) Concerning Indigenous and Tribal Peoples in
Independent Countries (adopted by the International Labour Organization in
1989); the UN Draft Declaration on the Rights of Indigenous Peoples (adopted by
the UN General Assembly in 1994); and the London Declaration of International
Law Principles on Internally Displaced Persons (adopted by the International
Law Association in 2000).
a law enacted for a
necessary purpose which is in accordance with the basic principles of a
bilingual and multicultural democratic society, and to an extent that is no
greater than is required.
Anti-discrimination in
property
37. No person shall be
discriminated against – directly or indirectly – in land transactions, such as
purchasing, long-term leasing or renting property, based on nationality,
religion, race, sex, color, ethnic origin, sexual orientation, disability or
age.
Distributive justice
38. Every group of citizens
which has suffered from a policy of injustice and historical discrimination in
the allocation of land is entitled to affirmative action based on the
principles of distributive justice in the allocation of land and water and in
planning.
Restitution of private
land
39. Every resident or
citizen whose land has been expropriated or whose right to property has been
violated arbitrarily or because of his or her Arab nationality under the
following laws is entitled to have his or her property restored and to receive
compensation for the period during which his or her right to property was
denied: the Land Ordinance (Acquisition for Public Purposes) of 1943, and/or
the Land Acquisition (Validation of Acts and Compensation) Law of 1953, and/or
the Absentee Property Law of 1950, and/or article 22 of the Statute of
Limitations of 1958, and/or Regulation 125 of the Emergency (Defense)
Regulations of 1945.
Internally-displaced
persons
40. All of the Arab citizens
of the State of Israel who were uprooted from their villages or from their
place of residence during and after 1948 and were not permitted to return are
entitled to return to their villages and original places of residence; a
mechanism will be formulated in law to provide appropriate compensation for
personal damages suffered by these individuals and their families since being
uprooted, as well as assistance for building villages and/or homes of an
appropriate quality.
The Muslim Waqf
41. Muslim Arab citizens are entitled to the
reinstatement of all assets of the Muslim Waqf, including its revenues, which
were held by the Supreme Muslim Council and transferred as absentee property to
the Custodian for Absentee Property pursuant to the Absentee Property Law of
1950.
Traditional title to land
42. The Arab Bedouin citizens of Israel are entitled to recognition
of title to land which is or was possessed by them based on their traditional
patterns of ownership; none of these entitled persons shall be transferred from
their land except with their full and conscious consent.
Alternatives to restitution
43. In cases where there is an objective and genuine
obstacle to fulfilling the right of restitution of land as defined in articles
39-42, an alternative and fair solution will be formulated with the consent of
the rights holders; if no agreed solution is attained, the decision will be
transferred to a special authority whose powers, working methods and
composition will be established in law and subject to article 20.
Unrecognized villages
44. The residents of villages known as “unrecognized
villages” are entitled to have their existing villages recognized without delay
through the implementation of adequate planning procedures with their full
participation.
III:
Social and Economic Rights9
The right to health
45. A. Every person is entitled to essential
health services and an appropriate standard of health conditions; the state
will take reasonable legislative and other measures to achieve the progressive
realization of this right.
B. Every person is
entitled to emergency medical care.
The right to social security
46. Every resident or citizen is entitled to social
security and a suitable standard of living, for him or herself and his or her
family; the state will take reasonable legislative and other measures to
achieve the progressive realization of this right.
9 Explanatory notes:
Social and economic rights In this Part, we adopted a similar approach to that of South
Africa and the International Covenant on Economic, Social and Cultural Rights,
to which the State of Israel is a party. Some of these rights require
progressive realization that also depends on the principle of distributive
justice of budgets and resources. Thus, for example, the right to free
education was not restricted to twelve years of mandatory schooling, but
applies beyond this and as far as this right can be progressively realized;
that is, it also enables free higher education for those in financial need,
according to criteria to be defined. Another part of these rights does not
depend on resources and progressive realization, such as labor rights.
The right to housing
47. Every resident or
citizen is entitled to adequate housing; the state will take reasonable
legislative and other measures to achieve the progressive realization of this
right.
The right to sustainable
development
48. Every resident or
citizen is entitled to sustainable development that ensures an improved,
healthy and productive life, and responds to the needs for development,
environment and public participation; the state will take reasonable
legislative and other measures to achieve the progressive realization of this
right.
The right to education
49. Every person is entitled
to accessible, free and high-quality education; the state will take reasonable
legislative and other measures to achieve the progressive realization of this
right.
Affirmative action in
education
50. Every person who belongs
to a group of citizens which has suffered from a policy of historical injustice
or discrimination in realizing the right to education is entitled as an
individual and/or as part of his or her group to affirmative action in all
matters related to the allocation of resources for advancing the right to
education.
Anti-discrimination in
job hiring
51. An employer shall not
discriminate among his or her employees or job candidates – directly or
indirectly – on the basis of nationality, religion, race, sex, color, ethnic
origin, sexual orientation, disability, political opinions or age.
Minimal working
conditions
52. Every employee is
entitled to reasonable, fair and appropriate working conditions that include
the following minimal conditions: remuneration, two paid days of rest per week,
annual paid vacation, sick pay, social insurance and paid maternity leave for
the days before and after the birth.
Labor unions and the
right to strike
53. A. Employees are entitled to associate in
labor unions as they choose and engage as representative unions in collective
agreements to protect and promote their rights.
B. Workers have the right to strike in order
to protect and advance their rights.
C. The right of workers to form a union or
declare a strike shall not be restricted except by a law enacted for a
necessary purpose which is in accordance with the basic principles of a
bilingual and multicultural democratic society, and to an extent that is no
greater than is required.
IV:
Rights in Court and Criminal Justice10
Access to the courts
54. Every person is entitled to have access to the
courts and to receive a legal remedy in his or her case; his or her case will
be heard, discussed and be completed within a reasonable period of time, in
accordance with the rules of fairness, justice and equality.
The rights of a detainee
55. A person who has been arrested is entitled to
the following rights:
A. To be informed immediately, in a language
he or she understands, of the right to remain silent and avoid
self-incrimination.
B. To be informed immediately, in a language
he or she understands, of the reasons for his or her arrest.
C. To have notification of the arrest sent
immediately to someone close to him or her, as designated by him or her.
D. To meet with an attorney of his or her
choice immediately.
E. To be brought before a judicial authority
with twenty-four hours of the arrest.
F. To be sentenced within a reasonable
period of time or released.
The presumption of innocence
56. Every person will be presumed innocent until
convicted in a court of law; no one shall be indicted for actions or omissions
that did not constitute a crime at the time of their occurrence; no punishment
of any type will be imposed on someone unless his or her guilt has been proven
beyond a reasonable doubt and unless he or she has been convicted of a crime
stipulated by law.
10 Explanatory notes:
Rights in court and criminal justice We saw the need to emphasize in particular the rights
of detainees and prisoners because of the Israeli legal situation, which
contradicts the principle of anti-discrimination. It is very important that
these rights be included in the constitution because states maintain their
internal sovereignty, inter alia, through arrests and detentions. Therefore, it
is the role of the constitution to restrict this enormous power, which is
liable to lead to the most severe violations of human rights.
The right to due process
57. Every person in a civil
lawsuit or a defendant in a criminal case in court is entitled to a fair legal
proceeding that ensures, inter alia:
A. A full right to defend him or herself.
B. Representation in a criminal case by a
defense attorney of his or her choosing, or the appointment of a defense
attorney financed by the state if he or she cannot afford one.
C. Access to all evidence presented in court
and cross-examination of witnesses testifying against him or her.
D. The calling of witnesses and presentation
of evidence on his or her behalf.
E. An explanation of the details of the
criminal charge or the civil lawsuit, as well as the trial process; if he or
she does not have sound mastery of the language used in the hearings, a
translator will be provided.
F. Completion of the legal proceedings
within a reasonable period of time.
The rights of prisoners
and detainees
1
The personal dignity and right to social rehabilitation of a
prisoner or detainee shall not be violated.
2
None of the basic freedoms and rights of the prisoner or
detainee shall be violated except those rights which derive from his or her
incarceration as such, including restrictions on his or her freedom of
movement.
3
A prisoner or detainee shall not be discriminated against in
the conditions of incarceration or release on the basis of the type of crime
and/or circumstances of committing the crime, political opinions, nationality,
religion, race, sex, color, ethnic origin, sexual orientation, disability or
age.
Chapter Four: Miscellaneous
Amending the
Constitution
61. An amendment to the
Constitution will be made by a special majority of two-thirds of the members of
the Knesset, except an amendment of article 20, which will be made by a special
majority of 80% of all members of the Knesset.
Transitional orders
62. Any legislation enacted
prior to the approval of this Constitution but which contradicts its provisions
will be void after a transitional period not to exceed three years from the
approval of the Constitution.
Interpretation
63. Any interpretation of the provisions of this
Constitution will be conducted in the spirit of the basic values of the
Constitution and in the spirit of international human rights covenants, to
which the State of Israel is a party.
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