Israeli democracy under threat

THE PROPOSED Basic Law: Israel – the Nation State of the Jewish People (in all its versions, including the supposedly more moderate ones) is not simply a declarative exercise anchoring in law the existing status quo. On the contrary, it is a radical proposal that threatens to undermine Israel's essential character as both Jewish and democratic. The bill seeks to strengthen the Jewishness of the state at the expense of its democracy. By doing so, it threatens to subvert the foundations of Israeli constitutional law and human rights. It also reinforces the already powerful nexus between religion and state. Despite various reports to the contrary, the prime minister's proposal is not substantially different from the supposedly more radical private members' bills. The key problems remain. For example, his bill also seeks to anchor in constitutional law Israel's standing as the nation state of the Jewish people without guaranteeing the right to equality of all its citizens and all its minority groups. Indeed, it too fails to make any reference to the country's non-Jewish minorities. Worse, not only does the bill fail to imply a universal right to equality, the opposite is the case. Reading between the lines, the bill seems to suggest a fundamental inequality between Jews and non-Jews. The reference to the safeguarding of the “personal rights of all citizens according to law” clearly excludes minority group rights, rights to which all minorities are entitled in democratic states. And what about the rights of residents who are not specifically mentioned? Moreover, the proposed law confers individual rights through other laws, especially the Basic Law: Human Dignity and Liberty, which suffers from two inherent weaknesses. It does not constitute a full bill of rights and is not entrenched by a special majority. In late October, the ministerial committee for legislation approved a proposal enabling the Knesset with an absolute majority of 61 seats to override the rights it incorporates. The nation state bill provides for the state to foster Jewish and only Jewish culture; as for non-Jews they can promote their cultures only as individuals. Moreover, statements by the bill's advocates contradict the prime minister's claims of equal commitment to the country's Jewishness and its democracy. From their presentations it is crystal clear that their goal is to alter the balance between the state's Jewishness and its democracy, and through this constitutional change to force the “post-Zionist Supreme Court,” as they put it, to prioritize the Jewish character of the state and thereby legitimize erosion of the right to dignity and equality of non-Jews. The prime minister's proposal is based on the wholly unfounded assumption that the Israel of today is an overly liberal country, excessively democratic and not Jewish enough. On the contrary, Israel is facing a rising tide of illiberalism, which the advocates of the bill mean to take further. For example, they want to use the bill to authorize legislation enabling the Knesset itself to expel Arab Knesset members; legislation allowing community membership committees to reject Arab applicants; legislation barring Israeli Arab women from making their homes in Israel if their partners are from the occupied territories (for demographic, not security, reasons) and legislation allowing the state to hound Africans, mainly from Eritrea, who cannot be returned to their home countries. On the altar of their distorted vision of the Jewishness of the state, they want to turn Israel into a dark, illiberal country that persecutes its minorities. The proposal also seeks to enhance the status of traditional Jewish religious law. It calls for Jewish law to serve as an “inspiration” for the Knesset. Is this the big breakthrough in the name of the Jewishness of the state? To derive inspiration, for example, from barring women from giving evidence? And what about legislators who are not Jewish? Why should they derive inspiration from Jewish religious law? What this means is further reinforcement of the already powerful linkage between religion and state in Israel. It will fuel criticism that “the Jewish state” – as opposed to the national home of the Jewish people – has become a “halakhic” state, governed by Jewish religious law. There are also profound constitutional issues. Israel's constitution-in-the-making will, in theory, eventually be made up of a body of basic laws, some of which have already been enacted. If Basic Law: Israel – the Nation State of the Jewish People is passed, it will probably take precedence over earlier basic laws, especially Basic Law: Human Dignity and Liberty, both because it is more recent and, primarily, because it will be immutably enshrined, whereas its predecessors were not. All this adds up to serious harm to the state. Painting Israel's democratic nature into a corner is profoundly mistaken. Israel's enemies, who have consistently claimed that by definition a Jewish state cannot be democratic, will have a field day. Instead of emphasizing the humanistic and egalitarian aspects of Judaism, the proposal identifies the Jewishness of the state with a rampant nationalistic particularism which is arrogant, exclusionary and discriminatory. The fierce domestic debate over the proposal could create the erroneous impression that opponents of the bill oppose the Jewishness of the state. On the contrary, it is the bill's advocates, who want to strengthen the state's Jewish character, who will actually be weakening it. Jews committed to a Zionist and humanitarian Israel, as most Jews across the world are, will find it difficult to identify with a state clothed in nationalistic legal garb. Moreover, tensions between the Arab minority and the state will intensify to the point of serious danger of the ties being torn asunder. Arab citizens, whom the basic law doesn't even specifically mention, will likely respond to the exclusion and humiliation with alienation and enmity. The hand the 1948 Declaration of Independence extended to the Arabs for partnership in the building of the country will be exchanged for a hand that strikes. Instead of helping to bridge differences, the bill rouses antagonism. One of Israel's most important strategic assets will be undermined: Its being a genuine, substantive democracy. As a result, its ties with the democratic world will almost certainly suffer. The basic rationale of a constitution is to place constraints on the power of the majority and to prevent it from persecuting the minority, especially with regard to permanent minorities, like Israel's Arabs. Minorities are indeed in need of such protection, without which they become subject to the whims of the majority. But what is the majority worried about? How is it possible that the majority doesn't trust in the power it has simply by virtue of its being the majority? Indeed, the initiators of the bill's need to restate what was never in doubt reveals weakness and insecurity. There is, however, a simple solution. The self-evident fact that Israel is the nation state of the Jewish people should be anchored in a preamble to the constitution as is common practice in democratic nation states. Of course, this should include a promise of untrammeled equal rights for all its residents and minorities. It could be done overnight by adopting the Declaration of Independence as the preamble through a “Basic Law: The Declaration of Independence – Preamble to the Constitution.” The careful, balanced wording of the Declaration of Independence makes it eminently suitable to serve as a preamble under whose guiding principles the basic laws will be interpreted. The refusal of the advocates of the nation state bill to give explicit expression to the equality principle distances them from the liberal-Zionist tradition of the Ze'ev Jabotinsky-Menachem Begin mold. While their words sing Zionism's praises, their deeds undermine the Zionist enterprise. For the good of the state and all its residents, they must not be allowed to get their way. What Jabotinsky had to say on the nation state issue is highly pertinent. “I don't think the constitution of any state ought to include special paragraphs explicitly enshrining its 'national' character. The fewer such paragraphs, the better. The best and most natural way to guarantee the 'national' character of a state is by way of its having a certain national majority,” he declared. What a pity that those who claim to be his ideological heirs are turning their backs on him.  Law Professor Mordechai Kremnitzer is deputy president for research at the Jerusalem-based Israel Democracy Institute. Attorney Dr. Amir Fuchs is a researcher at the institute

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