On the Override Bill, Refugees, and the Jewish Soul of Israel
The new “Override Bill” being proposed in the Knesset this week exemplifies what I have always believed to be true about the asylum seekers debate in Israel: that the debate has never been just about asylum seekers, but about the very soul of Israel.
The bill being proposed is an amendment to the Basic Law of Human Dignity and Liberty that would allow the Knesset to re-legislate any law overturned by the Supreme Court on the basis of said Basic Law. This means that any time the Supreme Court rules a law or practice unconstitutional on the basis of the Basic Law on Human Dignity and Liberty, because it is deemed to infringe upon the basic rights or dignity of any individual or group, by a vote of 61-59, the Knesset would be able to re-pass the law and continue to infringe upon those rights as desired.
The Basic Law of Human Dignity and Liberty, passed in the early 1990’s as part of Israel’s efforts toward building Israeli constitutional law, could be described as Israel’s version of the US Bill of Rights or Canadian Charter of Rights and Freedoms. Being a Basic Law, it can only be changed by an absolute majority of 61 Members of Knesset, and the Supreme Court has the power to rule unconstitutional any law or policy that contradicts the Basic Law (unless said law or policy was written prior to the Basic Law itself). The Basic Law of Human Dignity and Liberty, as its name reflects, guarantees every person in Israel protection of their life, body and dignity, as well as privacy and intimacy. It prevents the infringement of such rights except “by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required…” Which is to say, the State may only infringe upon a person’s liberty or dignity (for example, by arresting or detaining them), by a law with a specific purpose, in line with Israel’s values (which also leaves room for interpretation) and to an extent proportional to that purpose.
To put this theory into a more practical context, the Supreme Court has thus far used the Basic Law of Human Dignity and Liberty to overturn certain laws or policies that were deemed to infringe upon the liberty or dignity of such groups as: LGBTQ people, women, non-Orthodox Jews, non-Jewish citizens of Israel, foreign workers, Eritrean and Sudanese asylum seekers, and others. It should be noted that the Basic Law of Human Dignity and Liberty applies to all persons in the State of Israel, regardless of citizenship or status. (I highly encourage anyone unfamiliar with the law to read it).
For those of us who believe in the concept of “liberal democracy”, a set of individual rights guaranteed by constitutional law, as interpreted by independent courts, which cannot be infringed upon by a “tyranny of the majority,” is essential. (Note: Here I use the term “liberal” in the democratic sense. Not in the progressive/leftist sense.) There are, however, certain forces within Israel’s current government that are not particularly interested in the concept of a “liberal democracy”, and would much rather be able to inflict their will without being limited by such hindrances as “individual rights,” and constitutional checks and balances.
Unsurprisingly one of the main forces behind this new legislation is the Jewish Home (HaBayit Hayehudi) party, formerly the National Religious Party, under the leadership of Naftali Bennett and Ayelet Shaked. They have made clear that they see the Supreme Court and “individual rights” are a hindrance to their agenda, and that they wish to reprioritize “Jewish values” over “democratic values”. But what “Jewish values” are they referring to? It is quite clear they are not referring to the socialist Zionist Jewish values of Bialik, or the tikkun-olam-progressive values of liberal Jewish denominations, or even the pluralistic tradition-and-modernity values of Conservative and modern-Orthodox Judaism. Their primal “Jewish” value is (Orthodox) Jewish superiority and rule of the Land – all other values from pluralism to btzelem elokim (the Jewish concept that all human beings are created in the Divine image) be damned.
This new Override Bill should sound the alarm for all those who care about Israel’s Democracy, Israel’s Jewish values, or both. It should ignite a warning light for all who care about LGBTQ rights, women’s rights, minority rights and civil rights of any kind, not to mention rights for Reform and Conservative and other non-Orthodox Jews. After all, it is the Supreme Court that has often been the last defense for non-Orthodox Jews in the face of a Knesset oft taken hostage by theocratic-Orthodox parties. And it is the Supreme Court that has too often been the last defense for the asylum seekers who have come to Israel in search of refuge.
The connection between the Override Bill and the asylum seekers is on one hand coincidental and on the other hand critical. On one hand, it seems that the asylum seekers are merely a convenient excuse for longstanding opponents of the Supreme Court to fast-track a new bill to bulldoze the court’s power. On the other hand, there is something about the asylum seekers that cuts to the core of what it means for Israel to be a Jewish-Democracy.
If Israel is meant to be a Jewish-Democratic state in a values-based sense, then it is clear that Israel must treat the asylum seekers with dignity, for there is no more-repeated Jewish commandment than the command to love the stranger, and there is no greater democratic value than to give voice and protection to the disenfranchised. But if Israel is meant to be a Jewish-Democracy (or perhaps better stated: a Jewocracy) in the Bennett-Shaked essentialist sense, then there is no room for non-Jews, or at least no room for non-Jews with legally guaranteed rights and protections, however persecuted or deserving they might be; rights to non-Jews must be granted only at the mercy of the Jewish majority.
Whatever the case may be, the asylum seekers have unfortunately, yet again, become but pawns in an ugly game of political power. The current debate over the Override Bill has nothing to do with them, and at the same time it has everything to do with them. It is their lives that are in jeopardy in the short term, but it is the future of Israel that is in jeopardy in the long term. In a certain sense, the asylum seekers are but a canary in the dangerous tunnel that the Government of Israel is digging under the foundations of its own democracy. Will we listen to the canary or will we continue digging to our own demise?
All who care about the asylum seekers and all who care about the future of Israel, must speak out now against the Override Bill. It is a matter of pikuach nefesh (preserving a life/soul) – to preserve the nefesh (life) of the asylum seekers and to preserve the nefesh yehudi (Jewish soul) of the only Jewish State we have.