An Anti-Zionist Law

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In late June 2013, MKs Yariv Levin (Likud) and Ayelet Shaked (Habayit Hayehudi) submitted a bill proposing a Basic Law that would entrench the Jewish character of the State of Israel. In an op-ed in Haaretz, IDI Researcher Attorney Amir Fuchs warns that the proposed law is not only anti-democratic but also undermines the foundations of Zionism.

The new Basic Law: Israel as the Nation State of the Jewish People, which was submitted to the Knesset this week by MKs Yariv Levin and Ayelet Shaked, seeks to bring about nothing short of a revolution in the nature of the State of Israel. On a positive note, unlike many of the legislative initiatives of the current coalition and its predecessor, this bill does not hide behind convoluted wording. It states loud and clear that its goal is to define Israel first and foremost as a “Jewish state” and downgrades Israel’s democratic character to "with a democratic regime."  The proposed law does not balance Israel’s "Jewish” and “democratic" identities; rather, the superiority of Israel’s "Jewish" character over its "democratic" character is absolute.

According to MK Levin, the bill is a response to the rulings of the Supreme Court, which he deems, unjustly, "post-Zionist." But this legislative move itself may equate Zionism with racism and nationalism. The bill is not only anti-democratic, but it is anti-Zionist. It undermines the foundations of Zionism as expressed in Israel's Declaration of Independence.

At the outset, let me make it clear: The State of Israel is indeed the nation state of the Jewish people, and it must remain as such. A balanced constitutional initiative, which defines the national character of the State of Israel while granting recognition to Israel's minorities and enacting a full constitutional Bill of Rights, would be extremely justified and would establish Israel as a member of the family of democratic nation states.

But the proposed Basic Law does not do that. Although it contains fewer discriminatory elements than the original version of the bill put forward by MK Avi Dichter (Kadima), it still has clear signs of the superiority of the Jewish character of the state and the inferiority of its democratic character, and includes expressions of exclusion and alienation of anyone who is not Jewish.

The bill carefully selects elements from Israel’s Declaration of Independence that its proponents deem worthy of inclusion, and studiously ignores the elements that would serve as a counterbalance. For example, under the heading "Democratic State" in what is purported to be the constitutional bill of rights of the citizens of Israel, the proposed law says: "The State of Israel will be based on the principles of freedom, justice, and peace as conceived by the Prophets of Israel and will be committed to the individual rights of all citizens as defined by each Basic Law." While the bill emphasizes the national character of Israel, its lack of recognition of the collective rights of minorities is conspicuous in its absence. Even worse, Israel’s Arab population is not mentioned in the proposed law at all.

The bill’s reference to the Basic Laws only highlights the imbalance created by the proposed legislation: Basic Laws are not entrenched and do not explicitly include a full bill of rights, such as the right to equality and the right to freedom of expression.

The clear bias of the law is evident from the fact that its authors incorporated a national component from the Declaration of Independence into their proposal, but neglected to include the democratic component that accompanies it, which applies to all citizens:

"[The State of Israel] will promote the development of the country for the benefit of all its inhabitants; will be based on the principles of liberty, justice and peace as conceived by the Prophets of Israel; will uphold the full social and political equality of all its citizens, without distinction of religion, race, or sex; will guarantee freedom of religion, conscience, education and culture." 

It would seem that the proponents of the law deny the fundamental commitment of the Zionist state and its founders to equal social and political rights for all its citizens.

Moreover, the proposal seeks to give Jewish law considerable weight in Israeli law. According to the current bill, "Jewish law will serve as an inspiration to legislators and judges in Israel" (MK Dichter’s original proposal did not extend this inspiration to include judges). The bill also includes an amendment to the Foundations of Law Act to the effect that if a judge cannot find an answer in Israeli law, Israeli case law, or by means of "clear inference,” the judge should rule based on principles of Jewish tradition and Jewish law. It will be very strange indeed if a “civil” coalition, which is not constrained by agreements with ultra-Orthodox parties, ends up being the government that strengthens the power of Jewish law in Israeli law and the relationship between religion and state.

It is imperative that we abandon this unilateral move, and instead begin the long, arduous process of drafting a constitution that defines Israel’s identity as a Jewish and democratic nation state and that includes a Bill of Rights and full rights for minorities. 

Attorney Amir Fuchs is a researcher at the Israel Democracy Institute, and is conducting research as part of IDI's Democratic Principles project.

This article was originally published in Hebrew in Haaretz on June 28, 2013.