The Jewish Daily Forward
August 16, 2011 - 12:00am

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.


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