Unless the Knesset comes to it senses at the very last minute, Israel is about to legislate away its founding principles — and with them the raison d’etre of its very existence. The proposed Basic Law: “Israel: The Nation-State of the Jewish People,” which is scheduled for a final vote this week, seeks to redefine Israel in an ethnocentric Jewish mold at the expense of all its citizens, thereby upending the principles of freedom, justice, peace and equality heralded in its founding document. No simple rewording or mere revision will rectify the damage that the adoption of this law will do, not only to Israel’s image, but to its very essence.
Countless attempts have been made to craft a full-fledged constitution for the State of Israel since its establishment 70 years ago. These have faltered as successive drafts — and even versions just of a preamble — have failed to garner the minimum consensus required. A series of basic laws which define the structures and norms of the country have consequently served as the evolving constitutional framework for Israel’s citizens, providing the parameters for judicial review and ongoing legislation.
For the past few years, since Members of the Knesset Avi Dichter and Ze’ev Elkin first tabled the “Nation-State of the Jewish People” bill in 2011, several alternatives have been discussed, debated, revised, and ultimately abandoned. The objective of these various drafts has been to codify the Jewish character of the State of Israel and to grant this instrument constitutional weight. Now it appears that — regardless of the ongoing disagreement over its provisions and the unstable security situation — Prime Minister Netanyahu is insistent on bringing these efforts to fruition this week. He is applying inordinate pressure on his coalition partners to find ways to compromise on contested formulations in order to adopt the totality of this basic law.
The essential problem with the bill in its entirety is that it only addresses the Jewish nature of Israel: it makes no mention whatsoever of its democratic underpinnings, of the ethos of equality that has guided it since its foundation, or of the one-fifth of its population that is not Jewish. At end of the second decade of the 21st century, the ruling coalition is planning to backtrack on the values that have enabled Israel to maintain its societal diversity and its political vibrancy in the face of continuous threats to its security.
Nevertheless, public attention has progressively been drawn on the eve of the vote (even at the time of writing), mostly to some of the most egregious clauses in the proposed text discussed by the special committee established to draft the final version of the law. These focus on several key issues, the most glaring being the permission granted in the penultimate wording of paragraph 7(b) “to allow a community, including one composed of a single religion or nationality, to establish its own separate communal settlement,” which would legalize the exclusion of Arabs citizens of the country — who constitute over 20% of its citizens and lay claim to only 2.1% of its land — from hundreds of Jewish communal settlements in direct defiance of seminal High Court rulings. Other groups could suffer the same discrimination.
The tempered wording of this clause, agreed upon yesterday in negotiations between Naftali Bennett and Binyamin Netanyahu, would make Jewish settlement of the land a national value: “The State sees developing Jewish settlement as a national interest and will take steps to encourage, advance and implement this interest.” This verbal adjustment, now directed more pointedly against Arabs, continues to smack of prejudice and maintains a racist odor that will be very hard to dispel.
A similar issue exists in paragraph 7(a) of the draft law, which enables “every resident of Israel, regardless of religion or nationality, to maintain his [or her] culture, education, heritage, language and identity.” Behind this seemingly neutral language stands the very real possibility that particular groups (the ultra-Orthodox, for one) could desist from imparting basic education to their children, continue prejudicial practices towards women or non-believers or, for that matter, exclude blacks or Mizrahi Jews with impunity. Pluralism stripped of tolerance and mutual respect could thus easily be granted constitutional protection.
Another problem relates to the demotion of the official status of the Arabic language — protected by law since the days of the British mandate. In the latest version of paragraph 4 of “Israel: The Nation-State of the Jewish People,” Arabic will be granted a special status — but only in relation to government services. This, clearly, is not only a divergence from the status quo; it is also a direct affront to the identity, culture and heritage of Israel’s largest national minority.
Several other clauses are also in dispute, including the attempt to add the term “religious” to the defining paragraph 1(b) which currently reads: “The State of Israel is the nation-state of the Jewish people, in which it fulfills its natural, cultural and historical right to self-determination.” Needless to say, many secular Israelis have difficulty with this interpretation, which differs from the twin “natural and historical” rights ensconced in the Declaration of Independence. Others have expressed reservations about paragraph 3, which establishes “the entire and united” Jerusalem as Israel’s capital. And still more hesitations have emerged regarding paragraph 6, which seeks to detail Israel’s relationship with the Jewish world (but, at the insistence of religious parties, in practice excludes the vast majority of Diaspora Jews, who adhere to liberal streams from gaining formal status within the country).
Indeed, a closer look at almost every sentence of the draft legislation arouses discomfort — if not outright disagreement — in one segment of Israeli society or another. During the past few weeks alone, Arabs and Jews, secular and religious, newcomers and veterans, women and the disadvantaged, Jews in Israel and the diaspora, Ashkenazim and Mizrahim, have all expressed discontent with some of its provisions.
Key public figures have been outspoken in voicing their objections: from Benny Begin, Tzipi Livni and Dan Meridor (all scions of the founders of the Likud) to Natan Sharansky and President Reuven Rivlin who share the same nationalist orientation (although hardly its ultra-nationalist deviations). Jurists have questioned its constitutionality as well as its ramifications. Leaders of world Jewry have lobbied against some of its provisions. Thousands of civil society organizations and individual citizens have expressed their utmost distaste — even pouring into the streets to demonstrate their displeasure. And, despite the ire they have aroused in government circles, democratic leaders in Europe and North America have vigorously cautioned against this move, citing the untold harm it will bring to Israel’s standing in the democratic world.
The proposed basic law is flawed, therefore, not only in its details but also in its overall conceptualization: it presents a narrow, introspective, exclusionary depiction of Israel at odds with the open vision of the country and its aspirations articulated by its architects 70 years ago. This is a mediocre, warped, superfluous, extraordinarily divisive and, indeed, self-destructive piece of legislation which will stamp Israel with a mark of Cain which will be difficult — if not impossible — to shed in the foreseeable future. No amount of fear, political opportunism, heuristic manipulation or insecurity can justify its imposition — under immense duress — against the express wishes of large portions of Israel’s population and in defiance of its democratic foundations.
Israeli identity cannot be constructed through such deeply contested legislation. It should and must be the collective outcome of the joint efforts of its citizens. Since 1948 Israel’s Declaration of Independence, the culmination of the Zionist dream, has fulfilled this purpose (although repeated efforts to entrench it in law have failed miserably). The “Nation-State of the Jewish People” bill detracts from this constitutive text and from its ideological underpinnings. It irreparably alters Israel’s norms, undermines its democracy — the main source of its strength over the years — and confounds its future. For Israel to remain, in fact and in spirit, the national homeland of the Jewish people it has to strive to guarantee in every way possible, in the words of its founders, “complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender” for generations to come.