Bucharest

Freedom of   conscience  and religion 

A special case

 

 

5.f.1.9

Freedom of   conscience  and religion  special case

 

The Scope of Protection of Religious Liberty

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."²

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."³ 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."⁴

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".⁵

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 out state as a peace-loving, democratic state⁶'… 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"⁷.

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.⁸ 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.

The Basic Law: Human Dignity and Liberty refers to a "Jewish and democratic State". However, Judaism has not been proclaimed the official religion of Israel. Rather, the law and practice in Israel regarding religious freedom may best be understood as a sort of hybrid between non-intervention in religious affairs, on the one hand, and the inter-involvement of religion and government in several forms on the other, most notably by legislation establishing the jurisdiction of religious courts of the different faiths in specified matters of "personal status" by government funding of authorities which provide religious services to several of the religious communities; and by a series of legal institutions and practices which apply Jewish religious norms to the Jewish population.

Israel protects the freedom of Jews and non-Jews alike to engage in their chosen form of religious practice or worship. Likewise, in most cases the application of religious precepts by institutions of the State, such as in the prohibition of work on religious days of rest, does not compel Jews or non-Jews to violate the precepts of their chosen faith. However, freedom of religion is not an absolute right, but rather is subject to limitations and derogation. Thus, freedom of religion must be balanced with other rights and interests, and may be restricted for reasons of public order and security. In practice, however, Israeli authorities have exercised their power with great caution.

Religious institutions in Israel enjoy wide state financial support, in the form of both direct funding and tax exemptions. Both forms of state support are not uniform with regard to the various religious communities. However, the lack of official recognition of religious communities does not affect the ability of these communities to practice their religion freely or to maintain communal institutions. Furthermore, in its endeavor to enhance freedom of religion, Israel has permitted its Muslim citizens, by arranging for them to bear Jordanian travel documents, to pass through countries that do not have relations vis-à-vis Israel, in order to fulfill their commandment of pilgrimage to Mecca. Similarly, leaders of some of the Christian communities in Israel are also leaders of Christian communities in Arab countries; Israel, for its part, consistently maintains a policy of not intervening therein, allowing visits by religious figures across the border to enable these communities to manage their affairs.

Many provisions of Israeli statutory law are devoted to the protection of holy places and sites that serve for prayers and, other religious purposes.⁹ It is an offense under penal law to cause damage to any place of worship or to any object sacred to any religion with the intention of affronting the religion of any class of persons. There are, for example, penal sanctions for trespass on places of worship and burial, for indignity to corpses, and for disturbances at funeral ceremonies. The Supreme Court has dealt very stringently with acts which offend religious sentiment.

 

2. Religion-State Relationship and Freedom of Religion

The prevailing view in comparative international law is that the establishment of religion and its recognition by the state, or the separation of religion from the state do not, as such, violate religious freedom or constitute unlawful discrimination for religious reasons or religious intolerance. The nature of the regulation matters and the measure of statutory protection of religious freedom do not vary with states where separation exists or where there is a state-recognized religion.

Many countries, which separate church and state nevertheless grant exemptions from certain legal duties such as military service on grounds of religious beliefs, while other countries, which have a state-established religion, do not. The relationship between church and state has no significant effect on the free exercise of religion and, thus, the International Draft Convention on the Elimination of All Forms of Religious Intolerance provides that neither the establishment of a religion, nor the separation of church from state, in and of itself, is an interference with the freedom of religion, unlawful discrimination on religious grounds or religious intolerance.

Of course, if in consequence of the state's recognition a particular religion or its adherents are given preferential treatment over other religions or over persons who are not members of it, this involves an infringement of the principle of religious freedom, which requires the equal treatment of all religions. The same applies where the separation of religion and the state lead to preferential treatment of people with no religion, or disbelievers, as against others.

It should be noted that, irrespective of state recognition of a particular religion, the religious beliefs of the majority of the population inevitably affect the life of the state. In the United States, for instance, this phenomenon is reflected in the prescription of Sunday as the weekly day of rest. By contrast, in Israel it is Saturday, and the Jewish festivals are also rest days. (The right is reserved to non-Jews to choose the rest day customary among them.) In Israel, the phenomenon is also manifested in the status enjoyed by the Chief Rabbis.

b. Religion and State in Israel

When Benjamin Ze'ev Herzl dreamt about the state of the Jewish nation, he had the vision of separation of state and religion¹⁶. However, this vision has not become the reality. There is no separation of religion and state in Israel. At the same time, there is no recognized religion in the accepted sense. Some have argued that the peculiar nature of Judaism, which embodies a pattern of daily life and not merely a set of religious dogmas, and which intermingles religious and national elements, is not conducive to separation of religion and state. As David Ben-Gurion puts it, "The convenient solution of separation of church and state, adopted in America not for reasons which are anti-religious but on the contrary because of deep attachment to religion and the desire to assure every citizen full religious freedom, this solution, even if it were adopted in Israel, would not answer the problem."¹⁷

The State of Israel recognizes the following religions: Jewish, Christian, Muslim, Druze and Baha'i. Within the Christian religion the following denominations are recognized: Greek Orthodox, Greek Catholic, Latin (Roman Catholic), Armenian Orthodox, Armenian Catholic, Maronite, Syrian Orthodox, Syrian Catholic, Chaldaic (Catholic) and Evangelical Episcopal (Anglican).

Three denominations have applied for State recognition: the Ethiopian Orthodox, the Coptic Orthodox and the United Churches Council of Israel, which is the umbrella organization of Protestant churches in Israel. Their applications are still pending. In the past, three other applications, those of the Druze, the Baha'i and the Evangelical-Episcopal, were accepted.

Apart from the peculiar nature of Judaism, there is the difficulty attending separation, which flows from the approach of the law in Israel to matters of personal status. This approach, predating the establishment of the state, rests on religious affiliation, religious law, and religious jurisdiction.

The integration of religion and state in Israel is visible in many fields, some expressly regulated by statutory law¹⁸ and some relying on a legal regulation. Among them are the application of a religious test to the Law of Return¹⁹, which provides for automatic Israeli citizenship to Jews wishing to reside permanently in Israel; the exclusive application of religious jurisdiction and religious law in matters of marriage and divorce²⁰; the conduct of religious education financed out of state funds²¹; and the establishment of a special Ministry of Religious Affairs²².

 

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