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A directive by the Attorney General is considered, in Israeli law, as obligating the
Executive Branch. In the absence of an explicit law of the Knesset permitting a public
authority (such as, for example, a government ministry) to act in a manner which might
entail discrimination, the public authority must avoid discriminating, in accordance with
the basic principles set forth in the Proclamation of Independence.
T he same approach was followed by Attorney General Yosef Harish when the procedures
of the Ministry of Absorption for awarding rights to returning residents were submitted
for his review. The definition set down in the procedures, which awarded various leniencies
in customs duties for returning residents, was such that these leniencies would be awarded
only to Jewish citizens. An MK approached the Attorney General and pointed out the
discrimination entailed in these procedures, without the legislator having authorized the
Ministry of Absorption, through explicit legislation, to discriminate between Jews and
non-Jews in the leniencies offered to returning residents after a stay overseas.
The legal opinion of the Attorney General (issued on September 1, 1987) analyzes the
principle of equality in accordance with the text of the Proclamation of Independence,
and the ruling of the Supreme Court that awards legal significance to it. He concludes that
the procedures of the Ministry of Absorption concerning returning residents were indeed
defective insofar as they entailed inequality, and he therefore instructed the Ministry to
change the existing procedures such that the same law would apply to all citizens. He
asserted that the original procedures treated citizens who have equal rights in different
ways, and therefore they should be annulled. He emphasized that the aid extended to
returning residents was set down in procedures, not in law, and no public authority could
award rights to only one type of citizens of the state. Discrimination – i.e., the drawing of
an unjustified distinction between people of equal attributes – could be undertaken only
in accordance with the explicit directives of the legislator.
All of the above demonstrates that the Proclamation of Independence is not a document
of merely historic value; it is a document of legal importance in daily life. Nevertheless,
along with its great power, it is also limited in terms of its legal application. The principles
of the Proclamation, which recognize the fundamental freedoms of the individual, cannot
stand up to explicit, unequivocal Knesset legislation. The Knesset may legislate as it wishes,
and if its laws entail discrimination, then this is legislated discrimination which takes
precedence over all that appears in the Proclamation of Independence. In order to limit
this power of the Knesset, we need a formal, written Constitution whose explicit directive
will establish its supremacy over regular legislation, such that any law that contradicts it
will be invalid. Only with such a directive will we be able to speak of a Constitution in the
full sense of this concept.
Zeev Segal, Demokratia Yisraelit (Israeli Democracy),
published by the Ministry of Defense, 1988, pp. 15-22
256 The Friday That Changed Destiny
Executive Branch. In the absence of an explicit law of the Knesset permitting a public
authority (such as, for example, a government ministry) to act in a manner which might
entail discrimination, the public authority must avoid discriminating, in accordance with
the basic principles set forth in the Proclamation of Independence.
T he same approach was followed by Attorney General Yosef Harish when the procedures
of the Ministry of Absorption for awarding rights to returning residents were submitted
for his review. The definition set down in the procedures, which awarded various leniencies
in customs duties for returning residents, was such that these leniencies would be awarded
only to Jewish citizens. An MK approached the Attorney General and pointed out the
discrimination entailed in these procedures, without the legislator having authorized the
Ministry of Absorption, through explicit legislation, to discriminate between Jews and
non-Jews in the leniencies offered to returning residents after a stay overseas.
The legal opinion of the Attorney General (issued on September 1, 1987) analyzes the
principle of equality in accordance with the text of the Proclamation of Independence,
and the ruling of the Supreme Court that awards legal significance to it. He concludes that
the procedures of the Ministry of Absorption concerning returning residents were indeed
defective insofar as they entailed inequality, and he therefore instructed the Ministry to
change the existing procedures such that the same law would apply to all citizens. He
asserted that the original procedures treated citizens who have equal rights in different
ways, and therefore they should be annulled. He emphasized that the aid extended to
returning residents was set down in procedures, not in law, and no public authority could
award rights to only one type of citizens of the state. Discrimination – i.e., the drawing of
an unjustified distinction between people of equal attributes – could be undertaken only
in accordance with the explicit directives of the legislator.
All of the above demonstrates that the Proclamation of Independence is not a document
of merely historic value; it is a document of legal importance in daily life. Nevertheless,
along with its great power, it is also limited in terms of its legal application. The principles
of the Proclamation, which recognize the fundamental freedoms of the individual, cannot
stand up to explicit, unequivocal Knesset legislation. The Knesset may legislate as it wishes,
and if its laws entail discrimination, then this is legislated discrimination which takes
precedence over all that appears in the Proclamation of Independence. In order to limit
this power of the Knesset, we need a formal, written Constitution whose explicit directive
will establish its supremacy over regular legislation, such that any law that contradicts it
will be invalid. Only with such a directive will we be able to speak of a Constitution in the
full sense of this concept.
Zeev Segal, Demokratia Yisraelit (Israeli Democracy),
published by the Ministry of Defense, 1988, pp. 15-22
256 The Friday That Changed Destiny
