The wording of the Basic Law on Israel’s Jewish character which will be submitted today to the Ministerial Committee for Legislation will be slightly “softer” than its previous incarnation, but nonetheless remains pointless and fails the democratic litmus test.
On one hand, the new version lacks certain clauses that aimed to blatantly contradict Supreme Court rulings, such as the clause prohibiting Arabs from purchasing land in communities built on state land. On the other hand, the new version remains exclusionary, guaranteeing only “personal” rights for all of Israel’s citizens. Despite the “weeding out” of some of the operative clauses, the kind of nation-state the law seeks to create starkly contradicts modern perceptions of democracy. For example, the law states that “the right to national self-determination in the State of Israel is unique to the Jewish people.”
What is the right to national self-determination in the age of democracy? While we recognize the fact that in this day and age that there is no ethnically homogenous country, in order for a state to represent all of its citizens, it has to choose one of two paths. The first is a perception that attempts to define “nationality” as identical to citizenship. Under this perception, the country becomes the nation-state for all of that country’s citizens. This option was rejected in Israel, in which there remains a distinction between the principles of citizenship (Israeli) and nationality (Jewish or otherwise). Last October, the Supreme Court lent legitimacy to this idea when it rejected a petition filed by individuals requesting to list “Israeli” as their nationality.
The second option is to perceive of the state as representing a certain number of groups. One can recall the Belgian constitution, which determines that the country is comprised of three communities: the Flemish-, French- (Walloon) and German-speaking communities.
Israel did not choose the first path, though it didn’t choose the second either: Aligning the country with only one nationality group was done through exclusion, either symbolic or in terms of resources, of the citizens who are not part of that group. This model contradicts the democratic principle of equality. Deciding that the right to self-determination in Israel is “unique” to the Jewish people only bolsters that contradiction. In this day and age, “self-determination” does not necessarily mean a separate state for every national or ethnic group, but rather government that would represent the various groups in a state.
Thus it is appropriate to discuss “internal self-determination,” meaning representation for various groups in existing states. The right to “external self-determination,” expressed in founding an independent state, is generally reserved for peoples under foreign colonial rule or occupation, but also for peoples living under a government that does not equally represent all of its citizens.
The proposition that Israel recognizes the self-determination of only some of its citizens pushes the country further away from the model of modern democracy, and intensifies the extent to which it fails to represent all of its citizens equally. Clauses determining that all national symbols must be exclusively Jewish also adds to the de facto discrimination, even if some of the corresponding clauses were removed.
The clause that “Jewish law should serve as inspiration for Israeli lawmakers and judges” is no less problematic, as it could detract from decisions made against discrimination based on gender, sexual orientation, etc.
Israel’s democratic principles are in need of reinforcement: We must remember that to this day, the principle of equality is not explicitly enshrined in any Basic Law, even if the Supreme Court has interpreted it as being part of the right to human dignity. Instead of making up for the lack of equality, this new Basic Law would fortify the discriminator and exclusionary aspects of the Israeli regime, intensify the government’s identification with only some of its citizens, and push Israel further away from democracy.