Basic Law: Israel as the Nation State of the Jewish People

Transcription

1 Basic Law: Israel as the Nation State of the Jewish People Introduction Yousef Taiseer Jabareen * Since the establishment of the state of Israel, relations between Arab citizens and the Jewish majority including state authorities have been fraught with tension. Tensions are related to the divergent national identities of the two groups. This divide contributes to the tremendous challenge of drafting a national and inclusive constitution. Analyzing and being involved in the formulation of a constitution is of crucial importance to the Arab-Palestinian minority due to the constitution s potential impact on relations between the majority and minority national groups and the status of Arabs generally within the state. It is in the Arab-Palestinian minority s interests to ensure that any legislation, and particularly legislation which will have constitutional status, will serve to alleviate the deep and long-standing inequalities between Arabs and Jews rather than exacerbate them. Understandably, the way in which this process takes place and the extent to which it incorporates the principles of democracy is of critical importance. Discussion surrounding current proposals for legislation which would have constitutional status reflect contemporary ideological debates within Israeli society surrounding the nature of the state. During the 18 th term of the Israeli Parliament (hereafter: Knesset), in 2011, the Institute for Zionist Strategies drafted proposed legislation entitled Basic Law: Israel as the Nation State of the Jewish People (hereafter: basic law). 1 This legislation, which was sponsored by the Kadima party s Avi Dichter, garnered the support of about a third of the Members of Knesset (MKs) serving at the time. Following national elections in January 2013, in the context of the 19 th Knesset, * Yousef Taiseer Jabareen is a Researcher and Law lecturer at the University of Haifa, and the founding director of Dirasat, Arab Center for Law and Policy. 1 Basic Law: Israel as the Nation State of the Jewish people C/18/

2 the Likud and Jewish Home parties agreed to advance legislation based on Dichter s bill. Consistent with coalition agreements, in 2013, Ayelet Shaked of the Jewish Home party and Yariv Levin of the Likud Beitanu party began working to advance this bill. It was added to the agenda of the Knesset and brought to the attention of the Speaker of the Knesset and other MKs on July 22, While based on Dichter s text, Levin and Shaked s version was modified slightly due to the significant criticism directed towards the original bill. Shaked and Levin withdrew a clause which would have retracted Arabic s status as an official language of the state along with a second clause that enabled the establishment of towns for religious or nationalistic purposes. In presenting this bill, they sought support from Prime Minister Netanyahu as follows: We expect Netanyahu to support the law as consistent with his call for Palestinians to recognize Israel as the nation state of the Jewish people. 2 The bill in its current form creates and deepens existing inequalities between Jews and Arab-Palestinians in Israel as it gives constitutional status to and establishes a normative legal framework which is biased in favor of the Jewish majority. Due to its constitutional status, passage of this bill would put an end to in-depth discussion of the status of the Arab-Palestinian community in Israel. The bill addresses the formal definition of the state and its symbols but, even more crucially, encompasses issues of central importance to Palestinians such as immigration, citizenship, land rights, culture, religion and more. As such, on the level of collective rights, the bill establishes Jewish national belonging as the basis for group-based privileges in the areas noted above without creating a provision for similar collective rights for the Arab-Palestinian national group. As such, the bill creates a formalized legal bias in favor of the Jewish majority and to the detriment of the Arab minority. This constitutional basis and state-sanctioned discrimination would further erode the equal citizenship rights Palestinians are currently entitled to on an individual basis while simultaneously making the Arab minority even more vulnerable to the whims of the Jewish 2 In response, in August of that year, Minister of Justice Tzipi Livni appointed Professor Ruth Gavison to formulate legislation which would serve as an alternative to the proposed bill. In assigning her to this task, Livni wrote: I believe the time has come to formulate constitutional arrangements related to the character of Israel as a democratic and Jewish state which includes the various aspects of the state s identity in such a way as to create a balance between both the value of Judaism and the value of democracy. 50

3 majority. 3 In all likelihood, it would deepen the rift between Palestinians and Jews in Israel by further entrenching and consolidating deep-rooted discrimination against the Arab minority. This document will primarily focus on expressions of formal discrimination enshrined in the bill and, in particular, ways in which the primacy of the Jewish national group and the benefits accrued from this will be to the detriment of the Arab national group. Section I: Discrimination and Exclusion Enshrined in Law The national home for the Jewish people The introductory section aims to clarify the definition of the state of Israel as follows: Article 1 (A), entitled A Jewish State, notes that The State of Israel is the national home for the Jewish people where they realize their aspirations for self-determination according to their cultural legacy and history. Afterwards (Article 1 (B)) it states the The right to realize national self-determination in the state of Israel is held exclusively by the Jewish people. Similarly, Article 1 (C) establishes that The land of Israel as the historic homeland of the Jewish people and the location of the Israeli state. As such, it rejects the possibility of self determination for non-jewish groups and the notion that the country can be a homeland to other national groups. 4 It is important to note that the bill gives constitutional status to the Land of Israel as opposed to the country or state of Israel. This is meant to give added weight and legitimacy to the Jewish people s claim of having a relationship with the historical land of Palestine; from the viewpoint of the text, historical Palestine is considered to be the historical homeland of the Jewish people. Currently, Israel is defined as a Jewish and democratic state. 5 Such a formulation 3 See, Yousef T. Jabareen, Constitution Building and Equality in Deeply-Divided Societies: The Case of the Arab Minority in Israel, 26 Wis. Int l L.J. 345 (2008), Availabe at: Constitution_Building.pdf Over the last decade, the Constitution, Law and Justice Committee of the Knesset has been working to formulate a constitution. You may review the work of this committee and the draft constitution here: huka.gov.il 4 See, for example: 5 Former President of the Israeli Supreme Court, Aharon Barak, in addressing the definition of the state as state which favors the Jewish national group, wrote as follows: What, then are the core characteristics shaping the minimum definition of the State of Israel as a Jewish State? These characteristics are derived from Zionism and Jewish heritage. At their core stands the right of every Jew to immigrate to the State of Israel, where the Jews will constitute a majority; Hebrew is the official and principal language of the State and most of its holidays and symbols reflect the national revival of the Jewish People. The heritage of the Jewish People is a central component of its religious and cultural legacy See the Supreme court ruling in HCJ 11280/02, Central Election Committee vs. MKs Ahmed Tibi and Bishara, (4) 1, (p 22) (2003). 51

4 is a central and regular feature of the opening statements in many pieces of Israeli legislation. 6 The proposed bill would modify this, as the Jewish and Democratic formulation is broken into two separate parts. The bill begins with the Jewish element; it displays a clear preference for this aspect of the definition and, more importantly, is inclusive of Jews who are not Israeli citizens. From a democratic perspective, particularistic statements, such as The State of Israel is the national home for the Jewish people where they realize their aspirations for self-determination and The right to realize national self-determination in the state of Israel is held exclusively by the Jewish people pose a clear challenge to the civil and democratic rights of all of those who do not belong to the Jewish people. Today, some 20% of Israeli citizens are Arab Palestinians and, in fact, are an indigenous national minority which found itself involuntarily under Israeli rule. Accordingly, constitutional clauses of this nature will negatively impact feelings of belonging of Arab-Palestinians, while posing a severe violation of their civil rights. Their exclusion will be given constitutional support; their legitimate national claims will become irrelevant and they will be turned into strangers in their own country. The way in which the state of Israel is defined legally is of utmost concern for the Arab- Palestinian minority in Israel. The definition as framed by this basic law is explicitly biased in favor of the Jewish majority. Such a definition is not only problematic in principle but also reflects an obstacle in practice to the achievement of substantive equality for the Arab-Palestinian national minority as this group has suffered and continues to suffer from institutionalized injustice and discrimination. Firstly, the Arab Palestinian minority is excluded from the very definition of the state. Furthermore, the preference for the Jewish majority engrained in the law paves the way for the granting of group-based rights and privileges to the Jewish majority while simultaneously justifying discriminatory and racist policy towards the Arabs on the individual and collective levels. This bill will take the currently very problematic situation and codify it in law with all the problematic social and political implications that this entails. Defining the state as the state of the Jewish people within the constitution will create a hierarchy of citizenship with Jewish citizens being awarded favored status. Palestinian citizens will see themselves downgraded from equal citizenship rights on the de jure level to second class citizens. As the bill would be of a binding and constitutional nature, it would codify Palestinian citizens lower raking status while detracting from their equal citizenship rights. 6 See: Basic Law: Human Dignity and Liberty (1992); Basic Law: Freedom of Occupation (Profession) (1994); Basic Law: The Knesset (article 7); The Political Parties Law of 1992 (article 5); The State Education Law of 1953 (article 2.2). 52

5 A policy paper drafted by the Association for Civil Rights in Israel (ACRI), the country s foremost human rights organization, is instructive here. It noted that: State of the Jewish people (or other similar expressions) is loaded term with many possible interpretations and by making it binding in the constitution, it creates a dangerous opening which could justify discriminatory and racist policy towards non-jews and it raises a concern that [such a clause] could subordinate the safeguarding of rights while justifying the discriminatory application of such rights. 7 Its important to note that the leadership of the Arab community in Israel has developed alternative and more inclusive definitions of the state including: A Multi-Cultural and Democratic State, A State for all its Citizens, A State of all its Nations, A Jewish and Arab Democracy and A Multi-Cultural and Bi-Lingual State. 8 Following an explication of the Jewish definition of the state, the proposed legislation addresses the proposed democratic characteristics of the state as follows: Article 3 (A) notes that The regime in the state of Israel will be democratic while Article 3 (B) notes that The state of Israel will be based on liberty, justice and peace as envisaged by the prophets of Israel and will be committed to granting rights to all citizens as outlined in every basic law. The definition of democratic is not outlined in any further detail in the remainder of the proposed legislation. State Symbols Section four of the proposed legislation gives constitutional status to the current state symbols. As such, it establishes that the country s current national symbols all of which have Jewish connotations with constitutional backing. According to the bill, under the heading National Symbols, the national anthem is Hatikva, 9 the flag is white with two sky blue lines close to the margins and a Star of David in sky blue positioned in the flag s center 10 and the state s symbol is a menorah with seven branches, olive 7 It was submitted to the Parliamentary Committee on Constitution, Law and Justice on March 19, The full text can be viewed here: (Hebrew) 8 Published by the National Committee for the Heads of Arab Local Authorities and can be seen here (Hebrew): 9 Article 4(a) of the basic law. 10 Article 4(b) of the basic law. 53

6 branches on both sides and the word Israel at its base. 11 The State s Flag, Anthem and Emblem Law of and the State Seal Law of already grant formal legal status to the flag, anthem, emblem and seal. Needless to say, all of these are national Jewish symbols and the national anthem, in particular, is a Jewish Zionist anthem which could never be adopted by the Palestinians. The granting of constitutional status to these symbols will deepen existing discrimination against Palestinians citizens. 14 Also worthy of note is Article 9 which states The state will work to safeguard the cultural and historical heritage of the Jewish people and its development in the land [of Israel] and the Diaspora. Immigration and Citizenship A number of sections of the proposed basic law relate to issues of immigration and citizenship. Article 6, for example, stipulates that the automatic right to immigrate and achieve citizenship belongs exclusively to Jews as follows: Every Jew has the right to come to the country and obtain citizenship in the State of Israel according to law. Article 7 builds on this; it notes The state will work to promote the ingathering of the exiles and to strengthen the attachment between Israel and Jewish communities in the Diaspora. The right of Jews to citizenship is further emphasized in Article 8 which determines that The state will provide aid to the sons of Israel [Jewish people] who have encountered problems or been held hostage due to their Jewishness. The proposed basic law would codify existing patterns of discrimination in immigration and citizenship that already appear in the Law of Return, 15 the Citizenship Law 16 and the Law of Entry Into Israel. 17 According to the Law of Return, for example, Jews and their family members including, importantly, family members which are not necessary recognized as Jews and are not in need of protection are immediately eligible for citizenship due to their return. This broadly applicable law also grants such 11 Article 4 (c ) of the Basic Law. 12 The State Flag, Anthem and Emblem Law of State Seal Law of For an alternative Jewish perspective on the issue of state symbols, see a paper produced by the Jerusalem Institute for Israel Studies entitled Inclusive Citizenship as a Framework for Jewish-Arab Relations in Israel at: 15 The Law of the Return, The Citizenship Law, The Law of Entry Into Israel,

7 immigrants a number of substantial economic benefits and privileges. This preference for Jewish immigration as a right derived from Israel s Jewish character has been upheld by the Israel s Supreme Court. 18 This stands in stark contrast to immigration policy granted to non-jewish spouses of Israeli citizens who, in the best case scenario, are only granted citizenship rights after a long, arduous and frustrating process. 19 Even worse, for non-jewish spouses who are Palestinians from the Occupied Territories, acquisition of citizenship or even legal residency inside Israel is virtually impossible, following a 2003 amendment to the Citizenship Law (family reunification). 20 In line with a preference for Jewish immigration, further Articles in the proposed bill strengthen the rights of Jews in Israel and in the Diaspora vis a vis Israel. Article 9 focuses on the Jewish people in Israel and abroad when it states that The state will work for the preservation and maintenance of the heritage, cultural and historical traditions of the Jewish people and the nurturing and developing of them in the country and abroad. On the other hand, Article 10 addresses Israeli residents when it determines that The state will allow every resident of Israel, irrespective of religion or nationality, to work to preserve their culture, heritage, language and identity. Article 9 is formulated as an obligation and a duty which is constitutionally-bound and requires the state to work on behalf of the Jewish people. Article 10 grants a similar right to Israeli residents but, unlike Article 9 which reflects an obligation or mandate, Article 10 uses the softer and more passive wording of allowing preservation of culture, heritage, language and identity. Hebrew Calendar Jewish content is further in evidence in Article 11, which relates to the official state calendar. It determines that The Hebrew calendar is the official calendar of the state. This article reflects the status quo as established by the Law of the Use of the Hebrew Calendar 21 a law relevant for the Jewish majority only. A parallel and more inclusive law does not exist. Passage of this bill would further entrench and give constitutional backing to an arrangement which benefits one group only. 18 See, HCJ 6698/95, Qaadan v. Israel Lands Authority, 55 (1) Needless to say, Palestinians either citizens or otherwise are not entitled to any form of economic benefit by virtue of immigration. 20 Law of Citizenship and Entry into Israel (temporary instructions), Law of Use of the Hebrew Calendar,

8 Days of Rest Legislation which establishes national holidays in Israel also discriminates against the state s Arab citizens; similar to the examples above, the proposed basic legislation would codify this constitutionally. Article 12 (A) states Independence Day is the national holiday of the state while 12 (B) notes that Fallen Soldiers Remembrance Day and Martyrs and Heroes Remembrance Day are official holidays of the state. Official discrimination also exists in rest days and holidays. Article 13 establishes that Holidays in Israel are Sabbath and holidays of [the people of] Israel and people do not work except under conditions prescribed by the law. Members of groups recognized by law have the right to take the day off on their holidays. The law fully recognizes Jewish holy days and their right to take days off on their holidays. In contrast, holy days of other groups including the 20% of the population that is Arab are not recognized and named within the context of the law. The allowance to take the day off on their holidays does not correct the imbalance embedded in law, and given the poor protections for Arabs and Arabs disadvantaged social and legal position, they are dependent on the goodwill of their [Jewish] employers for those days off. Under current legislation, as established by the government and in accordance with the law 22 Saturdays and the Jewish holidays [ ] are the established days off in the state of Israel. Non-Jews have the right to rest days on their Sabbaths and holidays. These will be determined for each group according to government decisions and will be announced in official records. Similar to the right to celebrate ones tradition and more, the wording in relation to Jewish holidays and rest days is stronger in the case of Jews; whereas Jewish people do not work, other recognized groups (which are unnamed) have the right to rest days and this is conditional on government decisions. Jewish Law as a Source of Inspiration for Legislators While previous Articles addressed Jewish peoplehood, Article 14 addresses the Jewish religion. Article 14 (A) determines that Hebrew law shall be a source of inspiration to legislators and judges in Israel while 14 (B) suggests that If the court is unable to find an answer in legislation or judicial rulings or through clear interference of a judicial issue that requires decisiveness, it will be guided by the principles of freedom, justice, integrity and peace as derived from the legacy of the people of Israel. While such legislation is currently on the books, similar to other aspects of the proposed bill, it would demonstrate a preference for the religious tradition of the Jewish majority and this would be granted constitutional status. 22 Article 18 (A) in the Decree of Arrangements for Governance and Law. 56

9 Legal Entrenchment Passage of the basic law would also further entrench legislation of this nature while creating serious obstacles to its repeal. Article 16 states that According to the current basic laws, granted rights cannot be violated except through a law that befits the values of the state of Israel, that is prepared for a worthy purpose, to an extent that doesn t exceed what is required, or according to a law that includes an explicit mandate. Article 17 establishes that This basic law cannot be changed except with a different basic law that is approved by the majority of the Knesset deputies. Thus, passage of this bill would make it very difficult to challenge the many problematic pieces of legislation outlined here. This represents one of the central risks associated with the proposed legislation as it not only deepens national exclusion of Arabs but also entrenches and normalizes it. In conclusion, in accordance with the items outlined here, the proposed legislation divides citizens in Israel into two groups: first class citizens (the Jewish majority) who are fully recognized in the definition of the state and its laws and enjoy recognition of their individual and collective legal rights, and second or third class citizens who are excluded nationally. The Arab Palestinian indigenous minority would find itself in a constitutionally established and supported position of disadvantage. Pre-existing Israeli legislation that would be codified with the passage of this basic law has already achieved this; constitutional backing would make their situation even more precarious. Section II: The Basic Law and International Law The Partition Plan as Embodied by Resolution 181 The proposed basic law stands in direct violation of the UN s 1947 partition plan as outlined in Resolution This resolution, which was instrumental in bringing about the establishment of the state of Israel, called on the two states (Israel and Palestine) to adopt a democratic constitution. This was meant to ensure equality; it notes that No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex. All persons within the jurisdiction of the state shall be entitled to equal protection of the laws. In addressing required content for constitutions for the two states, resolution 181 declares that The Constituent Assembly of each state shall draft a democratic constitution for its State and that each constitution shall include instructions guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the 23 General Assembly Res. 181(II), Future Constitution and Government of Palestine, UN Doc. A/Res/181/A-B, November 29, See: 57

10 enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association. The Partition Plan also addresses holy places and religious and minority rights. For example, Article 20, 24 which relates to minority rights notes that No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or gender while Article three states that All persons within the jurisdiction of the state shall be entitled to equal protection under the law. While non-discrimination is a central feature of resolution 181 a resolution fully adopted by Israel backers of this basic law are nonetheless codifying discrimination in the formulation of legislation such as this with constitutional status. Violations of International Law The proposed basic law stands in violation of the fundamental rights of citizens according to international law. In particular, it is injurious to the principle of equality and non-discrimination on the basis of national origin, race or religion. Israel has signed a number of relevant treaties including the International Convention on the Elimination of all Forms of Racial Discrimination, 25 the International Covenant on Civil and Political Rights, 26 the International Covenant on Economic, Social and Cultural Rights 27 and the International Convention on the Rights of the Child. 28 Specifically in the realm of minority rights, two documents are of relevance: The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 29 and the United Nations Declaration on the Rights of Indigenous Peoples. 30 In the context of international law, the proposed basic law makes a mockery of international legal standards and Israel s stated commitment to uphold them. The 24 General Assembly Res. 181(II), Future Constitution and Government of Palestine Chapter 2(3). See: The International Declaration on the Elimination of All forms of Racial Discrimination opened for signature in 1965 and ratified by Israel in See: In particular, see Article International Covenant on Civil and Political Rights, opened for signature in 1966 and ratified by Israel in See: 27 International Covenant on Economic, Social and Cultural Rights, opened for signature in 1966 and ratified by Israel in 1991: See: 28 The Convention on the Rights of the Child, opened for signature in 1989 and ratified by Israel in 1991: 29 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of See: 30 The United Nations Declaration on the Rights of Indigenous Peoples of See: esa/socdev/unpfii/documents/drips_en.pdf 58

11 Arab-Palestinian community in Israel is a substantial national and indigenous minority and, as such, is entitled to full civil individual equality as well as collective equality in accordance with international law. These collective rights are inherent rights derived from the groups existence as a group, which distinguishes it from the majority and are meant to ensure substantive equality and provide the group with individual and collective protection under the law. 31 International law is intended to help to equalize the inherent power imbalance between minority and majority populations which is a pre-requisite for self actualization on an individual and collective basis within any given society. In the local context, the need for distributive justice and restorative justice is particularly acute; this involves granting Arabic a status that is equal to Hebrew in law and in practice, the equitable distribution of all public resources including effective representation in public institutions and decision making bodies and fair and just arrangements for immigration and citizenship. In the internal sphere, the granting of collective rights would involve Arab-Palestinian self steering in the realms of education, religion, culture and media. Such collective rights also include recognition of the historical rights of the Palestinian people including the right of return for people displaced from their homes and villages, recognition of unrecognized villages and the placement of religious matters in the hands of the community. Section III: In Conclusion This article presented an overview of the proposed Basic Law: Israel as the Nation State of the Jewish People and ways in which it infringes on the rights of the Arab Palestinian indigenous minority in Israel. Currently, Israel is defined as a Jewish and Democratic state. The proposed bill, in stating that The state of Israel is the national home for the Jewish people where they realize their aspirations for self-determination according to their cultural legacy and history and The right to realize national self-determination in the state of Israel is held exclusively by the Jewish people would make the democratic element subservient to the Jewish element. Passage of this bill will remove any pretense regarding the nature of the state and the intentions of the government, as such it will represent a deathblow to the civil and constitutional rights of Palestinian citizens as it gives constitutional backing and state sanctioning to discrimination. This binding bill displays a clear preference for the Jewish people and, accordingly, further entrenches the sub-par 31 For more, see: Jabareen, Yousef T. (2008) Toward Participatory Equality: Protecting Minority Rights Under International Law 41 Israel Law Review 635. Available at: pdf 59

12 legal status of Palestinian citizens. As such, it solidifies their second or third class status, undermines the right to equal citizenship and delegitimizes the group on a national basis. The provisions established by the bill and their emphasis on the Jewishness of the state, are in contradiction to fundamental and accepted rights internationally primarily equality and non-discrimination as central to all citizens within democracies. For example, it contradicts UN Resolution 181 which calls for the adoption of a democratic constitution by both states and, as such, violates the international principle which brought about the establishment of the state of Israel. This bill is very dangerous as it subverts international democratic principles to Israel s Jewish character. As it permits and even codifies discrimination and does not provide equal protection before the law, passage of this bill will likely lead to increased violations of civil and human rights in Israel. Importantly, the bill promotes the collective rights of the Jewish majority without granting the same rights to the Palestinian indigenous national minority. This is incompatible with current trends in international law which increasingly recognize the unique rights of both national and indigenous groups. As such, it consolidates a hierarchy which gives preference to the majority over the minority. This group-based ethnic classification - and Jewish formal superiority - reflects a common dualism in Israeli legislation in general, and constitutional law specifically, in all manner of rights pertaining to Arab-Palestinians: a collective approach for Jews and an individualistic approach for non-jews. This dangerous bill would more firmly entrench these norms within Israeli society, creating serious barriers to overcoming them. Thus, passage of this bill will exacerbate on-going exclusion, increase feelings of alienation and deal a death blow to civil and democratic values. 60