Bill to make preserving Jewish identity the exclusive right and duty of Israel
The article by Jonathan Lis in Ha’aretz is followed by an analysis of the previous Dichter bill by Elzbieta Okuniewska, Palestine-Israel Journal. Notes and links at foot.
MK Yariv Levin submits extreme version of existing proposal that would give courts the right to prioritize Jewish identity over democracy in rulings that address issues of religion and state.
By Jonathan Lis, Ha’aretz
May 27, 2013
An Israeli lawmaker on Monday submitted a highly controversial proposal that would make Judaism superior to democracy in the State of Israel, amending a previous bill that was tossed by the Knesset before the last general election.
Coalition Chairman MK Yariv Levin (Likud) presented his formulation for a new Israeli basic law, one that obligates the courts to prioritize the state’s Jewish identity in rulings that address issues of religion and state.
This new proposal comes after another potential law, proferred by MK Avi Dichter (Kadima), was blocked and ultimately [struck] from the agenda.
Levin decided to revive Dichter’s proposal, but has added to it a number of highly controversial provisions. Levin’s formulation grants – for the first time – legal status to the term “the land of Israel” and the (exclusive) Jewish affinity to it.
“The land of Israel is the historical birthplace of the Jewish people and the place of the establishment of the State of Israel,” the proposal states. No other nationalities or religions are mentioned in this context, which continues, “The right to realize national self-definition in the State of Israel is unique to the Jewish people.”
Levin’s law establishes Hebrew as the only official language in the state but allows the Knesset to grant a secondary status to other languages, including Arabic or English. Another provision, copied over from Dichter’s proposed law, obligates the state to build Jewish communities in its territories, with resources allocated specifically for this purpose. As for communities for non-Jews, the state will have the power to grant approval for their construction.
Nevertheless, the proposal contains democratic language as well. The proposal also makes it clear that “every resident of Israel, regardless of religion or nationality, is permitted to act to preserve his culture, heritage, language and identity.”
In explaining his proposal, Levin wrote, “Despite the widespread agreement among the public in Israel concerning the definition of the state of Israel as a Jewish state, the characteristics of the state of Israel as the nation state of the Jewish people have never been anchored in the country’s basic laws … The proposed law emphasizes the traditional and historical connection between the Jewish people and the land of Israel and the national rights granted to it as expressed in the Declaration of Independence.”
In recent months, lawmakers from the Habayit Hayehudi and Yesh Atid parties have been trying to formulate a proposed law of their own on the issue. While they haven’t yet succeeded, both parties have said that the language of their proposal will be significantly softer than Dichter’s and that the law will be based on the values of Israel’s declaration of independence.
MK Avi Dichter. In 2010 the former Head of Israeli General Security Services (GSS) ‘canceled a trip to Spain, due to fear he would be detained or arrested by Spanish authorities for his involvement in alleged war crimes against Palestinians.’ AIC, 17 November 2010.
By Elzbieta Okuniewska, Palestine-Israel Journal
April 25, 2013
Almost immediately after the new Israeli government was formed, the Likud and Habayit Hayehudi agreed in their coalition agreement to promote the controversial bill, altering an already fragile balance between the Jewish and the democratic character of the state. The so called “Dichter Law”, proposed by then Kadima party Knesset Member Avi Dichter (currently a Likud member) in its initial form called for subordination of the democratic rule of law in Israel to its Jewish cultural, religious and national heritage. Although the original law proposal under harsh criticism of many Knesset Members was re-drafted and moderated by its author, the change regarded wording rather than its actual meaning. Taking into account the legal significance of the Basic Law, the persistent efforts of certain political forces to amend it and the astonishing urgency of the new ruling coalition to advance these amendments, one may get an impression that it is not the Jewish character of Israel that requires protection, but rather the democratic character.
The Jewish and the Democratic
The Basic Laws are actually a group of several, general laws which serve as the de facto constitution of Israel. They consist of bills enacted by the Knesset between 1958 and 2001 that regulate the most important areas of the state’s activity: organization of the Parliament and the Government; range of responsibilities of the President, the Judiciary and the State Comptroller; functioning of the Army and the Economy; the issues of land ownership and occupation; the status of Jerusalem as the capital of Israel as well as human liberties. Both the Basic Laws (with particular regard to the Human Dignity and Liberty Basic Law of 1992) and the Declaration of Independence of the State of Israel (1948) set the core values and principles of Israel: “a Jewish and democratic state” “based on freedom, justice and peace” that “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and “will guarantee freedom of religion, conscience, language, education and culture”. Thus the founding legal documents of Israel place its political system within a unique, yet risky dialogue between the liberal-democratic rule of law and the Jewish ethno-national heritage.
Negotiation of identities
One may claim that the Jewish and the democratic values in this case are self-contradictory, as a liberal democracy by definition should not prioritize any ethnicity, culture or religion over others. However, reality is often much more complex than theoretical assumptions. In fact, in the dilemma between democratic egalitarianism and ethno-national, religious identity Israel is not alone. The right balance is still a matter of negotiations not only in many relatively “new” democracies such as Poland, that still deals with its strongly Catholic character, but also in states with a long democratic tradition, such as France, currently forced by the challenge of immigration to redefine its understanding of secularism, nationality and identity. Moreover, the fierce discussion over the preamble of the European Union Lisbon Treaty (ratified eventually in 2009) clearly shows that boundaries of secularism and range of influence of ethno-national and religious factors on legislation remain flexible and highly sensitive matters. Therefore, taking into consideration the unprecedented heterogeneity of Israeli society with its multiple cleavages as well as historical circumstances of creation of the state, the current “Jewish-democratic” character of Israel could be treated as an unavoidable social consensus which doesn’t necessarily preclude future democratization and equalization of rights.
Ethnic democracy on the offensive
The real problem starts when state legislation is being used in order to legitimize existing, and enable future, institutional discrimination. It starts, when the law is being intentionally designed in a way that prevents any future democratization of the state. What Avi Dichter and his supporters propose is not an amendment or reinterpretation of fixed components of the Basic Laws. He wants to complement the existing catalogue with an additional law, known as the “Jewish Identity Bill” or “Jewish State Bill”, primarily aimed at assuring the Jewish character of Israel through an indisputably hegemonic legal status. This law would describe Israel as a “Nation-State of the Jewish People” (neglecting the “democratic” component), reduce the status of the Arabic language as well as provide a closer linkage between the (already strongly interconnected) Jewish religious laws and state legislation. Legal loopholes are, as states the proposed law, supposed to be interpreted in accordance with the Jewish law. Introduction of this new bill would further deteriorate the already secondary status of non-Jewish inhabitants of Israel, who constitute up to 25% percent of the country’s population. Furthermore, it would significantly increase the tension between the Jewish and the Arab citizens of Israel and decrease the sense of belonging of the latter. Moreover, such legislation would cut off the Israeli political system from its democratic traditions and shift it towards the ambiguous, defective character of an ethnic democracy. This term, introduced by an Israeli political scientist Sammy Smooha in 1997*, relates to “a democratic state that is identified with and subservient to a single ethnic nation”. While political scientists like Smooha, Wolfgang Merkel or Fareed Zakaria discuss whether and to which extent various subtypes of “illiberal democracies” and semi-authoritarian regimes can still be considered free and democratic, it is doubtful that abandonment of the rule of law would benefit Israel either on the domestic or on the international political arena.
The law proposed by Dichter goes far beyond the social consensus represented by the term “Jewish and democratic”. Its introduction would pose several significant threats to the Israeli domestic relations and harm its international position as a democratic state. More than that, due to the fundamental character of the Basic Laws, it would be very difficult to change it. Democracy, human rights and the rule of law should not be taken for granted. In order to last, they have to be cherished and protected by policy makers, civil society and public opinion. Dichter’s law will be debated further in the Knesset. Let us hope that the democratic character of the state will turn out to be at least as important for the Israeli legislators and public opinion as the Jewish one.
Notes and links
* Ethnic Democracy: Israel as an Archetype by Sammy Smooha, Israel Studies Volume 2, Number 2, Autumn 1997
Basic Law Amendment ‘Inspired’ By Declaration of Independence, support from settlers’ group Arutz Sheva, May 29, 2013
Now Israel annexes all the Jews of the world Uri Avery deplores the new bill, May 2013
Basic Law: Israel the Nation-State of the Jewish People (MK Avi Dichter et al.)
By ACRI, August 2012
This bill seeks to define Israel as “the national home of the Jewish people” – and uniquely of the Jewish people – legally subordinating the state’s democratic character to its Jewish one as defined in this proposed bill. The bill further stipulates that Arabic will no longer be an official language of the state (rather a “special status” language), that Hebrew Law shall serve as a source of inspiration for the legislator, and enables the establishment of separate communal settlements for members of one religion or nationality, thereby cleansing, and even makes a statutory norm of, existing practices of racial discrimination in housing.
In essence, much of what is being proposed is similar to what already exists today through various laws. The major differences are the emphasis on Israel as the national home only of the Jewish people, and the demotion of Arabic to a secondary language. The most problematic element of this legislation is its discriminatory message, leaving no room for protection of minorities in Israel – particularly not the Arab minority.
Status: Tabled on 3 August 2011
This is one of the bills in a list of Anti-Democratic Legislation Initiatives compiled by ACRI, last updated August 2012