License to Discriminate: A Jewish and Undemocratic State

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A bill entitled "Basic Law: Israel – The Nation State of the Jewish People" is currently being considered by the Knesset. Although it was sponsored by a large number of Knesset members from a both the coalition and the opposition, the bill is controversial as it may disrupt the delicate balance between the "Jewish" and "democratic" identities of the State of Israel. In this op-ed, IDI Vice-President Prof. Mordechai Kremnitzer and Researcher Adv. Shiri Krebs argue that the bill is unnecessary and counterproductive to the goal of a Jewish and democratic Israel.

The Basic Law: Israel-Nation State of the Jewish People was originally submitted to the Knesset on August 3, 2011 by no less than 40 members of both the coalition and the opposition. This proposed legislation marks the collapse of Israeli democracy and its transformation from a live and substantial democracy to an empty shell. How sad it is that in the Israel of 2011, one third of the Knesset members believe that "democracy" is merely a technical term, seeing it as a form of government that is devoid of essential values or any commitment to individual liberties, human rights, and pluralism, whether intellectual, cultural, or religious. Downgrading Israeli democracy to the status of a repository for undefined Jewish values may signal the demise of Israeli democracy.

Until now, the right to equality has been recognized as a protected fundamental right in the State of Israel that is binding on all state agencies (and even on private entities), despite its absence from Israel's Basic Law: Human Dignity and Freedom. Now, however, a third of the members of Knesset wish to establish, once and for all, that equality - a basic value that is vital and essential to any democracy - is not one of the values of the Jewish state. On the contrary: The proposed legislation invites the State to encourage Jewish settlement, defines the cultivation of Jewish heritage in Israel and the Diaspora as part of the state's mandate, and revokes the status of Arabic as an official language in Israel. These are constitutional provisions that discriminate against non-Jews, especially Israel's Arab population.
How would the Jewish character of Israel be diminished if the state were to encourage Arab settlement or to foster the cultural heritage of Israel's minorities? In this respect, the proposed Basic Law is built on a fundamental misunderstanding: The fact that Israel is the national homeland of the Jewish people does not justify violating the fundamental rights of non-Jews. On the contrary: in terms of justice and fairness, the fact that Israel is a national homeland for the Jewish people requires the state to be extra scrupulous in protecting equality; this caution is necessary in order to compensate for the inevitable exclusion that stems from the definition of the state as a Jewish state. Moreover, it is the Jewish identity of the state which morally obligates Israel to treat non-Jews in a just and equitable manner. According to the proposed bill, however, Arab citizens will become second-class citizens. And if they try to change this new character of the state, is likely that they will be completely banned from the political system.

Ever since the founding of the state, the tension between Israel's Jewish identity and its democratic identity has spawned numerous discussions and extensive writing. Throughout Israel's existence, many solutions have been found to resolve this tension. The secret of their success stemmed from the fact that these two core values - "Jewish" and "democratic" - were combined to create Israeli identity based on a fundamental equality among them. The proposed Basic Law inverts this delicate balance, which has been undermined in recent years. This law openly chooses Jewish identity over democratic identity, sacrificing the latter for the former.
Ideologically, this bill is self-defeating. It seeks to remove the notion of Israel as a state of all its citizens from the agenda. The path that it recommends for achieving this goal, should we choose to pursue it, will undermine the very justification for Israel's existence as a Jewish state. If the Jewish state is only fair to Jews, if it excludes its minorities and discriminates against them, it will be cutting off the moral and ethical basis of its very existence as a Jewish state. The "Jewishness" of the state may increase as a result of an aggressive move made by a majority that can oppress the minority that lives within it, but this Jewishness will be diminished spiritually.

The explanatory notes of the Basic Law reveal that the law aims to be even more destructive, as it desires to serve as the inspiration for a constitution that has a similar spirit. This will be the end of the dream of the Jewish and democratic state. A vivid and substantial democracy is based on equality and on human dignity -  whatever the nationality or religion of its subjects may be. It requires individual freedoms to be anchored and protected, and demands that minorities are protected against the "tyranny of the majority". It is not the Jewish majority but the Arab minority that needs constitutional protection in the democratic state in which the Jewish people fulfill their right to self-determination. The proposed Basic Law turns the tables: It is the majority that receives rights, constitutional protection, and license to discriminate against and oppress the minorities living within it.

Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute. Adv. Shiri Krebs is a research assistant at IDI and a doctoral student in international law and dispute resolution at Stanford University.