Preserving Jewishness, not democracy, to define State of Israel

November 1, 2011
Sarah Benton

Draft of Basic Law
ACRI (Association for Civil Rights in Israel)
October 2011

The 18th Knesset
Draft Law submitted by Members of Knesset

Avraham Dichter, Ze’ev Elkin, David Rotem, Einat Wilf, Haim Katz, Roni Bar-On, Shaul Mofaz, Ruhama Avraham-Balila, Ze’ev Bielsky, Yoel Hasson, Gideon Ezra, Arie Bibi, Nahman Shay, Moshe (Motz) Matalon, Otniel Schneller, Marina Solodkin, Uri Orbach, Zevulun Orlev, Hamad Amar, Robert Ilatov, Doron Avital, Eli Aflalo, Zion Finian, Julia Shmuelov-Berkovic, Orli Levi-Abuksis, Arie Eldad, Ofir Akunis, Ronit Tirosh, Carmel Shama, Miri Regev, Anastasia Michaeli, Tzipi Hotovely, Israel Hasson, Shay Hermesh, Yaacov Edri, Meir Shetrit, Uri Ariel, Yariv Levine, Binyamin Ben-Eliezer, Shlomo Mula.

Draft Basic Law: Israel A Jewish State 1
(1) The State of Israel is the national home of the Jewish people, in which it realizes its aspiration for self-determination based on its cultural and historical heritage.
(2) The right to national self-determination in the State of Israel is uniquely that of the Jewish people.
(3) The text of this Basic Law or any other legislation is to be interpreted in light of this clause.

A Democratic State 2
(1) The State of Israel has a democratic regime.

State’s Symbols 3
(1) The State’s national anthem is “Hatikva.”
(2) The State’s flag is white, with two azure stripes close to its edges and an azure Star of David at its center.
(3) The State’s emblem is the seven-branch Menorah [candelabrum], olive branches on both its sides, and the word “Israel” below it.

Language 4
(1) Hebrew is the official language of the State.
(2) The Arabic language has a special status, and its speakershave the right to linguistic access to State services, all as will be stipulated in law.

Right of Return 5
Every Jew has the right to immigrate to Israel and acquire a citizenship of the State of Israel in accordance with the law.

Ingathering of the Exiles and Jewish Settlement 6
The state shall act to gather the Jewish diasporas and to promote Jewish settlement within its boundaries, and will allocate resources for these purposes.

The Connection with the Jewish People in the Diaspora 7
(1) The State will work to strengthen the affinity between Israel and the Jewish communities in the Diaspora.

(2) The State will extend assistance to members of the Jewish people who are in predicament or in captivity because of their Judaism.

Jewish Heritage 8
(1) The State will work to preserve the cultural and historical heritage of the Jewish Nation and to foster it in Israel and in the Diaspora.

(2) All educational institutions that serve a Jewish public in Israel will teach the history, heritage, and tradition of the Jewish people.

The Right to Preserve Heritage 9
(1) Every resident of Israel, regardless of religion or nationality, may work to preserve their culture, heritage, language, and identity.

(2) The State may allow a community, including members of one religion or nationality, to establish a separate communal settlement.

The Official Calendar 10
The Hebrew calendar is the official calendar of the State.

Independence Day and Memorial Days 11
(1) Independence Day is the State’s national holiday.

(2) The Memorial Day for Israel’s Fallen and the Holocaust And Heroism Memorial Day are official State’s memorial days.

Sabbatical Days 12
The State of Israel’s official days of rest are Saturday and the Jewish holidays, in which a person cannot be employed except under terms to be specified in legislation; members of legally recognized communities may refrain from work on their holidays.

Hebrew Law 13
(1) Hebrew Law shall serve as a source of inspiration for the legislator.

(2) Should the court encounter a legal question demanding a ruling and be unable to find a solution in legislation, in legal precedent, or through clear deduction, the court should rule in light of the principles of freedom, justice, integrity, and peacefulness of Israel’s heritage.

Protection of Holy Sites 14
The holy sites shall be protected from desecration, other harm, or anything that might impair on the freedom of access of religion members to places they consider sacred or hurt their feelings toward those sites.

Durability 15
This Basic Law shall not be altered except through a Basic Law passed by a majority of Knesset members.

Explanatory Notes
The First Zionist Congress approved the Basel Program, according to which it is the goal of Zionism “to establish a national home for the Jewish People, in the Land of Israel.” The Declaration of Independence declared that the newly-established State to be a Jewish State and the national home of the Jewish people. In 2001, the Kinneret Covenant was published, endorsed by public figures from the entire political spectrum, the first chapter of which states that “the State of Israel is the national home of the Jewish People.” Despite the fact that the definition of the State of Israel as a Jewish state is extensively accepted by the Israeli public, the characteristics of the State of Israel as the nation-state of the Jewish people have never been anchored in the State’s Basic Laws.

The necessity of the Basic Law: Israel – the Nation-State of the Jewish People assumes greater validity at a time when there are those who wish to abolish the Jewish people’s right to a national home in its land, and to deny the recognition of Israel as the nation-state of the Jewish people. Anchoring the Jewish nature of the State of Israel in a Basic Law will allow for a broad agreement in the future with the establishment of a complete and comprehensive constitution.

The first clause states that all other state laws shall be interpreted in light of the said clause. In this context,it is appropriate to cite the former President of the Supreme Court, Justice Aharon Barak: “The values of Israel as a Jewish state posses a constitutional, supra-legal status. They influence the interpretation of all Basic Laws, and thus affect the constitutionality of all statutes. They affect the interpretation of all legal texts, for they should be viewed as part of the fundamental values of the State of Israel, and as such they are also part of the general purpose underlying every legal text in Israel. Thus, for example, it is presumed that every law passed by the Knesset and every order issued by the government are meant to realize the values of the State of Israel as a Jewish state (A Judge in a Democratic Society, 2004, p.89).

Throughout the bill one can find practical aspects that express the fact that the State of Israel is the nation-state of the Jewish people, some of which are already expressed in current legislation: the State’s symbols (anthem, flag, emblem), its language, the Law of Return, the Ingathering of the Exiles, Jewish settlement, the bond with the Jews of the Diaspora, the Jewish heritage, the Hebrew calendar, and the protection of holy sites.

The assertion that the State of Israel is a democratic as well as a Jewish state is anchored in clause 2 of the proposed bill, and is an underlying motif in its various clauses, such as those dealing with language, preservation of heritage, communal settlement, days of rest, and the protection of holy sites.

Presented to the Knesset speaker and his Deputies
And tabled in the Knesset
3 August 2011

Position Paper on proposed Basic Law
31 October 2011

Prime Minister Binyamin Netanyahu
Government Ministers

Re: Proposed Basic Law: Israel the Nation-State of the Jewish People
MK Dichter and other Members of Knesset recently tabled the above bill, which seeks to redefine the identity and character of the State of Israel, and to anchor it in a Basic Law. We present below the position of the Association for Civil Rights in Israel (ACRI) regarding this bill from the perspective of safeguarding democracy and human rights.

It should be noted at once that the current wording of the law would lead, in an unprecedented manner, to the subordination of the democratic character of Israel to its definition according to the law as a Jewish state. Thus, the wording of the law would violate the human rights of all citizens of Israel, a violation directly derived from the severe erosion this Basic Law would cause to the status of democracy in Israel.

Furthermore, this law includes other grave human rights violations, above all violations of the rights of Israel’s Arab minority, which constitutes approximately 20% of the state’s citizens. Such a breach of the rights of a fifth of Israel’s citizens undermines the right to equality, and in itself constitutes a severe harm to Israeli democracy, whereas civil equality is one of the main pillars of democracy. The proposed bill, which contains many discriminatory provisions, opens the door for the institution of additional and broader practices of racial discrimination in all walks of life.

The legislative process of this bill is also problematic and inappropriate. The question of the definition of the state is an important constitutional question with fundamental ramifications for the State of Israel and for all its citizens, and it includes practical aspects as well as complex symbolic ones. This is a question that is mired in controversy among various population groups – first and foremost between the Jewish majority and the Arab minority. As is known, most of the Jewish citizens of the state see the State of Israel as a homeland, in which they realize their collective rights, including their right to national self-determination. At the same time, most of the Arab citizens of the state, which are an indigenous minority, see the definition of the State of Israel as a “Jewish state” as violating, in and of itself, their right to be equal citizens and their right to preserve and express their collective identity and their joint vision.

Dealing with the conflict that these positions could generate must be done in a manner that safeguards the rights and interests – both collective and individual – of all groups in society, and will not turn some of the citizens into second-class citizens. Therefore, this matter must be handled by holding a thorough debate that engages the entire public – a debate through which, to the extent possible, suitable and broad-based agreements would be formulated; all while maintaining the basic principles of a substantive democracy.

It is saddening and troubling that the current proposed bill seeks, like a bull in a china shop, to establish sweeping and damaging arrangements with regards to the definition of the state, which dangerously subordinate the democratic character of the state to its definition as a Jewish state, threaten the collective and individual human rights of all its citizens, and severely infringe on the rights of the Arab minority in Israel.

Some of the severe violations of human rights and democracy, contained in this bill, are detailed more extensively below:

1. Subordinating the democratic character of the state to its Jewish character – In this bill, Israel is defined primarily as a Jewish state, and it is even stipulated that this and all other laws be interpreted accordingly. The word “democracy” appears in a separate clause, and no parallel stipulation is made for interpreting laws in accordance with the democratic character of Israel. The meaning of this is that the term “democracy” is de-facto subordinated to Israel’s being a “Jewish” state, second in importance, and even interpreted accordingly. We vehemently object to subordinating the democratic essence of Israel to any other characteristic.

The wording further detracts and diminishes the subjugated status of democracy by noting that “Israel has a democratic regime” rather than stating that “Israel is a democracy.” The proposed bill thereby seeks to abolish the perception of democracy as substantial to the description and definition of Israel, with all that this implies, and makes do with “democracy” as a formal description of the type of regime in Israel. Furthermore, the bill at no point relates to the meaning of democracy, and strikingly absent are any references to the fundamentals of a substantive democracy – including a commitment to complete equality to all citizens, a commitment to safeguarding the human rights of all, and more.

The potential significance of eroding the democratic nature of Israel, as manifested in this proposed Basic Law, is ominous, and constitutes a threat to the human rights of all citizens of the state.

2. Eliminating Arabic as an official language – This bill proposes demoting Arabic from its status as an official language, which it has had until now, to a “special status” language and this only for purposes of ensuring linguistic access to state services. Beyond the breach of the status quo, this is a violation of the fundamental rights of a national indigenous minority in Israel.

Language is a part of the identity, heritage, and culture of this minority, and further allows it to preserve its rights and equal status in the state.

3. Entrenching racial discrimination in housing – This bill proposes allowing for a sweeping and unconditional separation in housing based on religion or national identity (clause 9(b)). And if this were not enough, the ability to discriminate is granted with clear preference to “Jewish settlement,” only for which “the state shall allocate resources” as a legal requirement (clause 6).

The law thereby cleanses, and even makes a statutory norm of, existing practices of racial discrimination in Israel, and even lays the general groundwork for racist separation in all aspects of life based on national identity and religion. It is superfluous to note that such racist separation toward Arabs in Israel, as well as other minorities, qualifies as “racial discrimination” as defined by the International Convention on the Elimination of all Forms of Racial Discrimination.

It is also important to note that a legal provision that permits a state to discriminate based on nationality in determining a place of residence or in the administration of state-owned lands is invalid as it contravenes the Basic Law: Human Dignity and Liberty in its violation of dignity and equality.

We call upon you to dissociate yourselves from this dangerous proposed bill, thereby ensuring the protection of democracy, equality, and human rights in the State of Israel.
Respectfully yours,
Atty. Debbie Gild-Hayo Atty. Dan Yakir

“… any distinction…or preference based on… national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field of public
life” (Article 1.1).
Director of Policy Advocacy Chief Legal Counsel
CC: President of Israel
Speaker of the Knesset
Members of the Knesset
Knesset Legal Adviser

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