Jewish voices condemn Basic Law bill as a 'basic law of racism'

August 16, 2011
Sarah Benton

Knesset Set To Define ‘Jewish State’: Critics See Threat to Democracy and Rights of Arabs, Nathan Jeffay, The Jewish Daily Forward, 16 August 2011
Dichter’s Law, Uri Avnery 13 August 2011

Knesset Set To Define ‘Jewish State’
Critics See Threat to Democracy and Rights of Arabs
By Nathan Jeffay, The Jewish Daily Forward

A proposal likely to pass the Knesset would for the first time clarify what it means that Israel is a Jewish state, sparking controversy over its potential to clash with principles of equality and civil liberties.

The bill, submitted to the Knesset on August 3, will become Israel’s 12th “Basic Law” if passed, giving it effective constitutional status under Israel’s piecemeal process of constructing a de facto constitution by passing a series of such Basic Laws over time. The new bill has the support of one-third of the Knesset, including politicians from every Jewish party from right to left, except for Meretz, a small, civil liberties oriented faction. Actual support is higher, as ministers and deputy ministers cannot weigh in at this stage — meaning that the bill is widely expected to pass when it comes up for debate in the fall.

The bill’s defenders say the measure simply summarizes the Jewish elements of the state as they stand today, including Israel’s flag, anthem, language, holidays and commitment to promoting aliyah, and takes the logical step of giving them protection in Basic Law. But critics fear that the proposal’s complex wording would give courts license to affirm a law or practice deemed to support Israel’s Jewish character even it if violated democratic norms.

The measure would usher in two clear changes that will harm the Arab minority, they say — revoking the official status of Arabic and permitting “communal villages” to openly discriminate based on national or religious identity. Currently, they may accept or reject residents based only on “social suitability,” a right they acquired as the result of a controversial law passed this past spring. At the time, the law’s defenders strongly denied that this was meant to exclude Arabs or non-Jews.

In cases where a law or government practice is designed to support the state’s Jewish character but judged to violate democratic norms, the new bill would also empower judges to affirm its validity based on its support of the state’s Jewish character. Currently, laws or practices that serve the Jewish character are legally acceptable only so long as they do not clash with the state’s democratic character.

“I’m really afraid that this bill may be enshrined eventually as the ‘basic law of racism,’” said Yedidia Stern, vice president of research at the Israel Democracy Institute. He fears that it could “basically disarm the court from interfering in what the Knesset would be doing in the future.”

Israel’s high court is the main check and balance on the Knesset’s lawmaking and is currently considering several controversial measures, including the so-called Nakba Law. The name refers to the common Palestinian term — meaning “catastrophe” in Arabic — for the day marking Israel’s independence holiday. The law permits budget cuts of state-funded institutions and nongovernmental organizations that mark the holiday as Nakba Day. Other laws whose validity the court is currently weighing include the statute that allows “communal villages” to handpick residents and a law that seeks to punish individuals or groups that advocate on behalf of boycotting Israel or its West Bank settlements.

The Supreme Court has a particular reputation for halting plans that politicians introduce to advance what they consider Zionist ideals. In 2006, it ordered the government to annul its definition of “national priority areas.” This designation was used to encourage Jews to move to Jewish communities in the Negev and Galilee by offering them economic incentives that aimed to ensure Jewish majorities in these areas. “The government’s decisions were flawed, clearly discriminated against Arabs and damaged equal rights,” said Aharon Barak, chief justice at that time.

Proponents of the new bill hope that by enshrining a detailed account of the state’s Jewish character in a basic law, they will increase the weight that it carries in court. Likud lawmaker Zeev Elkin told Haaretz that the law is intended to give the courts reasoning that supports “the state as the Jewish nation state in ruling in situations in which the Jewish character of the state clashes with its democratic character.”

This agenda alarms Stern. “I think that this bill is asking for an unequal relationship between the two components by trying to put one on top of the other, and I think that this is against our interests and will take us backward,” he said.

Stern fears what Elkin seems to hope for: that the bill would not just formalize Israel’s Jewish character, but also make it dominant over democracy in high court decisions. His fear stems from the fact that the proposed statute refers to democracy as Israel’s “regime,” which he believes minimizes it to a set of rules governing elections rather than the country’s culture. The bill gives precedence to the country’s Jewish character, he said.

The measure’s first clause says that Israel is the “national home of the Jewish People,” that only the Jewish people have rights to self-determination there, and that the text of legislation “shall be interpreted as stipulated by this clause.” Another clause says that Jewish Law “shall be the legislators’ source of inspiration” and that if a court does not find a ruling in legislation, precedent or deduction, it should rule in accordance with principles from “Israel’s heritage.”

The bill’s initiator, Avi Dichter of Kadima, said in an interview with the Forward that it does not violate the rights of Arab citizens, but simply emphasizes that these people are a minority. “It means that the State of Israel… can cater for lots of minorities but can only be the state of one nation,” he said.

Joel Golovensky, founder and president of the Institute for Zionist Strategies think tank, gave a similar assessment, saying that the bill strikes “a balance between the self-determination of the Jewish majorities and the civil rights of minorities.” Einat Wilf, lawmaker with Atzmaut, the faction that broke away from Labor in January, said that it “doesn’t change anything or harm anyone but simply says why Israel was created.”

Israeli-Arab organizations are not reassured. “This is going to strengthen the ability [to reach] decisions against anyone who is not Jewish,” said Sawsan Zaher, attorney for Adalah — The Legal Center for Arab Minority Rights in Israel, which raised the objection to the Negev and Galilee plan.

Barak Medina, head of the law faculty at Hebrew University of Jerusalem, expects little immediate change in Supreme Court rulings if this bill passes. The justices in place today will not significantly change the way they rule because of such a law, he said. But the court’s future orientation is likely to tilt more to the right, Medina said, making more likely support for a shift to emphasizing the state’s Jewish character. “If you want to apply a nationalistic ruling, you will have more to base yourself on,” he said.

Contact Nathan Jeffay at

Dichter’s Law
Uri Avnery

“THE PEOPLE Demand Social Justice!” 250 thousand protesters chanted in unison in Tel Aviv last Saturday. But what they need – to quote an American artist – is “more unemployed politicians”.

Fortunately, the Knesset has gone on a prolonged vacation, three months. For as Mark Twain quipped: “No man’s life or property is safe while the legislature is in session.”

As if to prove this point, MK Avi Dichter submitted, on the very last day of the outgoing session, a bill so outrageous that it easily trumps all the many other racist laws lately adopted by this Knesset.

“DICHTER” IS A German name and means “poet”. But no poet he. He is the former chief of the secret police, the “General Security Service” (Shin-Bet or Shabak).

(“Dichter also means “more dense”, but let’s not dwell on that.)

He proudly announced that he had spent a year and a half smoothening and sharpening this particular project, turning it into a legislative masterpiece.

And a masterpiece it is. No colleague in yesterday’s Germany or present-day Iran could have produced a more illustrious piece. The other members of the Knesset seem to feel so, too – no less than 20 of the 28 members of the Kadima faction, as well as all the other dyed-in-the-wool racist members of this august body, have proudly put their name to this bill as co-authors.

The very name – “Basic Law: Israel as the Nation-State of the Jewish People” – shows that this Dichter is neither a poet nor much of an intellectual. Secret police chiefs seldom are.

“Nation” and “People” are two different concepts. It is generally accepted that a people is an ethnic entity, and a nation is a political community. They exist on two different levels. But never mind.

It is the content of the bill that counts.

WHAT DICHTER proposes is to put an end to the official definition of Israel as a “Jewish and Democratic State”.

He proposes instead to set clear priorities: Israel is first and foremost the nation-state of the Jewish people, and only as a far second a democratic state. Wherever democracy clashes with the Jewishness of the state, Jewishness wins, democracy loses.

This makes him, by the way, the first right-wing Zionist (apart from Meir Kahane) who openly admits that there is a basic contradiction between a “Jewish” state and a “democratic” state. Since 1948, this has been strenuously denied by all Zionist factions, their phalanx of intellectuals and the Supreme Court.

What the new definition means is that the State of Israel belongs to all the Jews in the world – including Senators in Washington, drug-dealers in Mexico, oligarchs in Moscow and casino-owners in Macao, but not to the Arab citizens of Israel, who have been here for at least 1300 years since the Muslims entered Jerusalem. Christian Arabs trace their ancestry back to the crucifixion 1980 years ago, Samaritans were here 2500 years ago and many villagers are probably the descendents of the Canaanites, who were already here some 5000 years ago.

All these will become, once this bill is law, second-class citizens, not only in practice, as now, but also in official doctrine. Whenever their rights clash with what the majority of the Jews considers necessary for the preservation of the interests of the “nation-state of the Jewish people” – which may include everything from land ownership to criminal legislation –their rights will be ignored.

THE BILL itself does not leave much room for speculation. It spells things out.

The Arabic language will lose its status as an “official language” – a status it enjoyed in the Ottoman Empire, under the British Mandate and in Israel until now. The only official language in the Nation-State etc will be Hebrew.

No less typical is the paragraph that says that whenever there is a hole in Israeli law (called “lacuna”’ or lagoon), Jewish law will apply.

“Jewish law” is the Talmud and the Halakha, the Jewish equivalent of the Muslim Sharia. It means in practice that legal norms adopted 1500 years ago and more will trump the legal norms evolved over recent centuries in Britain and other European countries. Similar clauses exist in the laws of countries like Pakistan and Egypt. The similarity between Jewish and Islamic law is not accidental – Arabic-speaking Jewish sages, like Moses Maimonides (“the Rambam”) and their contemporary Muslim legal experts influenced each other.

The Halakha and the Sharia have much in common. They ban pork, practice circumcision, keep women in servitude, condemn homosexuals and fornicators to death and deny equality for infidels. (In practice, both religions have modified many of the harsher penalties. In the Jewish religion, for example, “an eye for an eye” now means compensation. Otherwise, as Gandhi so aptly said, we would all be blind by now.)

After enacting this law, Israel will be much nearer to Iran than to the USA. The “Only Democracy in the Middle East” will cease to be a democracy, but be very close in its character to some of the worst regimes in this region. “At long last, Israel is integrating itself in the region,” as an Arab writer mocked – alluding to a slogan I coined 65 years ago: “Integration in the Semitic Region”.

MOST OF the Knesset members who signed this bill fervently believe in “the Whole of Eretz-Israel” – meaning the official annexation of the West Bank and the Gaza Strip.

They don’t mean the “One-State solution” that so many well-intentioned idealists dream about. In practice, the only One State that is feasible is one governed by Dichter’s law – the “Nation-State of the Jewish People” – with the Arabs relegated to the status of the Biblical “hewers of wood and drawers of water”.

Sure, the Arabs will be a majority in this state – but who cares? Since the Jewishness of the state will override democracy, their numbers will be irrelevant. Much as the number of blacks was in Apartheid South Africa.

LET’S HAVE a look at the party to which this poet of racism belongs: Kadima.

When I was in the army, I was always amused by the order: “the squad will retreat to the rear – forward march!”

This may sound absurd, but is really quite logical. The first part of the order relates to its direction, the second to its execution.

“Kadima” means “forward”, but Its direction is backward.

Dichter is a prominent leader of Kadima. Since his only claim to distinction is his former role as chief of the secret police, this must be why he was elected. But he has been joined in this racist project by more than 80% of the Kadima Knesset faction – the largest in the present parliament.

What does this say about Kadima?

Kadima has been a dismal failure in practically every respect. As an opposition faction in parliament it is a sad joke – indeed, I dare say that when I was a one-man faction in the Knesset, I generated more opposition activity than this 28-headed colossus. It has not formulated any meaningful stand on peace and the occupation, not to mention social justice.

Its leader, Tzipi Livni, has proved herself a total failure. Her only achievement has been her ability to keep her party together – no mean feat, though, considering that it consists of refugees (some would say traitors) from other parties, who hitched their cart to Ariel Sharon’s surging horses when he left the Likud. Most Kadima leaders left the Likud with him, and – like Livni herself – are deeply steeped in Likud ideology. Some others came from the Labor Party, arm in arm with that unsavory political prostitute, Shimon Peres.

This haphazard collection of frustrated politicians has tried several times to outflank Binyamin Netanyahu on the right. Its members have co-signed almost all the racist bills introduced in recent months, including the infamous “Boycott Law” (though when public opinion rebelled, they withdrew their signature, and some of them even voted against.)

How did this party get to be the largest in the Knesset, with one more seat than Likud? For left-wing voters, who were disgusted by Ehud Barak’s Labor Party and who dismissed the tiny Meretz, it seemed the only chance to stop Netanyahu and Lieberman. But that may change very soon.

LAST SATURDAY’s huge protest demonstration was the largest in Israel’s history (including the legendary “400,000 demo” after the Sabra-Shatilah massacre, whose real numbers were slightly lower). It may be the beginning of a new era.

It is impossible to describe the sheer energy emanating from this crowd, consisting mostly of 20-30-year-olds. History, like a gigantic eagle, could be felt beating its wings above. It was a jubilant mass, conscious of its immense power.

The protesters were eager to shun “politics” – reminding me of the words of Pericles, some 2500 years ago, that “just because you do not take an interest in politics doesn’t mean that politics won’t take an interest in you!”

The demonstration was, of course, highly political – directed against Netanyahu, the government and the entire social order. Marching in the dense crowd, I looked around for kippa-wearing protesters and could not spot a single one. The whole religious sector, the right-wing support group of the settlers and Dichter’s Law, was conspicuously absent, while the Oriental Jewish sector, the traditional base of Likud, was amply represented.

This mass protest is changing the agenda of Israel. I hope that it will result in due course in the emergence of a new party, which will change the face of the Knesset beyond recognition. Even a new war or another “security emergency” may not avert this.

That will surely be the end of Kadima, and few will mourn it. It would also mean bye-bye to Dichter, the Secret Police poet.

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