A Political Sacred Cow No More

The interior minister says the commission that will set Israel's immigration policy may also amend the Law of Return - the great taboo in Israeli politics.

Shahar Ilan
Shahar Ilan
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Shahar Ilan
Shahar Ilan

The commission headed by Interior Minister Ophir Pines-Paz that will set Israel's immigration policy will examine the possibility of amending the Law of Return - a subject many in Israeli politics consider taboo. "The commission's mandate," Pines-Paz says, "is to formulate Israel's immigration policy and afterward to examine the legislation - the Law of Return, the Citizenship Law and the Entry into Israel Law - to see whether they are appropriate for the existing situation and compatible with the policy that will be set."

And that includes the Law of Return?

Pines-Paz: "The Law of Return, too. Everything has to be on the table."

The Law of Return is probably Israel's single most important act of legislation and is undoubtedly the law that most defines the country's character as a Jewish state. It grants every Jew, spouse of a Jew and offspring of Jews down to the third generation, the right to immigrate to Israel. The president of the Supreme Court, Justice Aharon Barak, and many others believe the Law of Return should be made a Basic Law. Pines-Paz was not willing to elaborate about his ideas for amending the law. However, a perusal of the Knesset archives reveals that Labor MK Pines-Paz submitted three bills in the past with the aim of enshrining the Law of Return as a Basic Law.

Some of the other commission members have also published proposals for amending the law, such as Justice Minister Tzipi Livni and Prof. Ruth Gavison, a candidate for the Supreme Court. One of Livni's bills called for turning the law into a Basic Law; it was debated in the Knesset on the same day as one of Pines-Paz's bills and both were passed in their preliminary reading. The complexity of the issue becomes clear from the position taken in that debate, held in May 2000, by MK Moshe Gafni from United Torah Judaism. On the face of it, the religious parties should have the greatest interest in such a bill, because it is legislation that bolsters the country's Jewish character. However, as Aryeh Deri, the former chairman of the Sephardi ultra-Orthodox party Shas, once put it in the wake of the "constitutional revolution," his party would object even if the Ten Commandments were submitted as a Basic Law. Gafni took the same line, warning that turning the law into a Basic Law would give Supreme Court President Barak the power to decide "who is a Jew." Gafni stated that "to transfer the discourse about the Law of Return to the Supreme Court would be a cardinal mistake."

The most widely accepted proposal for amending the Law of Return is the annulment of the "grandchild clause," such that the non-Jewish grandchild of a Jewish grandfather would not be able to immigrate to Israel, or at least would not be able to do so without his parents or the Jewish grandfather. Another suggestion is to oblige new immigrants to live for a certain period in Israel before being granted citizenship. The Haredim (ultra-Orthodox Jews) continue to insist that the Law of Return define a Jew "according to halakha" (Jewish religious law).

`Historic value'

Since the great reform in the Law of Return, in 1970, the subject has become taboo in Israeli politics. No one wants to touch the law, for fear that the moment the politicians start tampering with it they might make additional changes and perhaps even revoke it altogether. In a Knesset debate held a few years ago, Likud MK Reuven Rivlin (the present Knesset Speaker) called the Law of Return "the ultimate sacred cow" and warned against attempts to drag it into the slaughterhouse. "We will not change the Law of Return," Rivlin told Haaretz last week. "It is a law that has historic value and a moral level." The law professor and former education minister Amnon Rubinstein, who is a member of the Pines-Paz Commission, also opposes any change in the law. "We must not touch it. I would be happy to change the definition of a Jew in the law [by expanding it], but in the present reality every change will be to the detriment of mixed families."

The grandchild clause was introduced into the law in 1970 (the law itself was passed in 1950). It stipulated that not only Jews but also their children, grandchildren and the spouses of the children and grandchildren were entitled to "make aliyah" (as Jewish immigration to Israel is known, from the Hebrew word for "going up") under the Law of Return. The prime minister at the time, Golda Meir, entrusted the formulation of the amendment to her deputy, Yigal Allon. Prof. Rubinstein, who was then a young lecturer in the Faculty of Law at Tel Aviv University, took part in the discussions about the wording of the amendment. There were two reasons for the introduction of the grandchild clause, he says. One was the desire to counterbalance the fact that the definition of a Jew was for the first time introduced into the Law of Return: "a person who was born of a Jewish mother or has converted to Judaism and is not a member of another religion." The second reason was the desire to offer a response to the 1935 Nuremberg Laws: Since the Nazis persecuted the grandchildren of Jews, Israel would grant them shelter.

The question of whether the Law of Return was fashioned as a rejoinder to the Nuremberg Laws is steeped in historical controversy. What Amnon Rubinstein has to say on the subject is of importance in this regard. The comparison is not mentioned in the transcript of the Knesset debate in 1970. A few years ago a senior official from the Justice Ministry told Haaretz correspondent Yair Sheleg that the actual background was different: An influx of aliyah from Poland in 1968 had brought with it many mixed families. According to this official, the grandchild clause was intended to prevent the dissolution of families. Rubinstein, though, says that the subject of the Nuremberg Laws was on the agenda and was mentioned in the deliberations of large forums.

According to official estimates, only about 50,000, or 5 percent, of the million or so olim (Jewish new immigrants) who arrived from the former Soviet Union in the 1990s and in the present decade did so on the basis of Par. 4(a) - the grandchild clause - of the Law of Return. In practice, however, the situation is more complicated. If in 1991 only 1.5 percent of the new immigrants from the former Soviet Union arrived on the basis of the grandchild clause, in 2001 the proportion stood at 14 percent. Another relevant fact: 70 percent of the new immigrants under the age of 40 in the past few years are not Jews.

Even if the grandchild clause in the Law of Return is not all that significant in aliyah today, there is no way of knowing whether this will always be the situation. According to Prof. Sergio Della Pergola, from the Hebrew University of Jerusalem, who is one of Israel's leading demographers, the very high rates of mixed marriages and assimilation that currently characterize the Jewish people mean that "in another two generations, from 2050 to 2080, the potential will be created of millions of non-Jews who will be eligible to immigrate to Israel under the Law of Return." The problem, he says, is that when speaking about the grandchild clause, people tend to think of today's grandchildren and not the grandchildren of those grandchildren. The other side of the problem, he says, is that if the grandchild clause is narrowed, there will be families who will no longer wish to immigrate because doing so would split them.

Seeking annulment

In the last Knesset, Justice and Immigration Minister Tzipi Livni submitted a bill that would annul the grandchild clause. The bill added that olim would have to declare their desire to settle in Israel, pledge allegiance to the country and assert that they would not act to negate its existence as the state of the Jewish people or its democratic character.

Livni was not alone in seeking the annulment of the grandchild clause. The present deputy education minister, Michael Melchior, served as chairman of the ministerial committee on conversions to Judaism in the government of Ehud Barak. At that time, Melchior submitted to the prime minister a proposal of his own to reduce the scope of the Law of Return. One point was to restrict the grandchild clause only to those who immigrated with their parents. Another clause was that converts to Judaism would be able to confer citizenship only on their spouses and children but not on non-Jewish grandchildren. "I do not want us to bluff ourselves," Melchior explains. "Those who introduced the grandchild clause did not have in mind the people who have been arriving in recent years. Maybe there are people who we want to absorb more than distant relations of Jews."

It is not certain that the views of Interior Minister Pines-Paz on the question of the grandchild clause are all that different from those of Livni. In a motion for the Knesset agenda on December 1, 1999, Pines-Paz stated: "As a person who believes that the State of Israel is the state of the Jewish people, a Jewish, democratic state, there is a problem and I do not deny it. The grandchild issue in the Law of Return is a subject that merits discussion and I object to the blocking of the debate on this issue."

His subsequent comments sound like an agenda for the Pines-Paz Commission: "I want to tell you that I am ripe for a serious discussion on the Law of Return, provided it is not construed and not directed and not hinted that there is any idea, heaven forbid, of undermining the essence of our existence here, which is aliyah to the State of Israel, which is the cardinal Zionist right. A second proviso is that the other serious issues that are in contention on the agenda be discussed in the same way and in the same form and with the same openness and the same responsibility."

Ten years ago, an internal committee in the Justice Ministry drew up a proposal to reduce the possibility of non-Jewish grandchildren and family members being naturalized under the Law of Return. However, the proposal did not reach the stage of concrete discussion. The current attorney general, Menachem Mazuz, says that narrowing the Law of Return could facilitate a decision to toughen the immigration policy. This is because, at the same time as it imposes restrictions on the naturalization of non-Jews in general, Israel would reduce the priority given to non-Jews because they are relatives of Jews. However, Mazuz, too, says, "I do not think this is a realistic option."

`Internal assimilation'

Another proposal to change the Law of Return is put forward by Dr. Asher Cohen, who coined the term "internal assimilation" in Israel. At the beginning of the decade, Cohen suggested "doing away completely with the grandchild clause, or at least doing away with the possibility that a non-Jewish grandchild will immigrate without the Jewish grandfather. At the very least, we have to demand that this grandchild not be a member of another religion." He also proposed severing the immediate connection between aliyah and the conferring of citizenship. "The Law of Return," he says, "must accord the right of free aliyah, but this does not mean receiving citizenship automatically. Citizenship should be made conditional on meeting certain conditions, in order to prove a true attachment to the state: a minimal period of residence - three years, say - and an examination of the individual's knowledge of Hebrew and perhaps also of Jewish history and the laws of the country."

A similar proposal is put forward by Prof. Ruth Gavison, a former chair of the Association for Civil Rights in Israel and a member of the Pines-Paz Commission. In a paper she wrote in 2000, she proposed "canceling the immediacy and the automatic character of conferring citizenship on olim. Only a person who has been in the country for a certain period, integrated into it and who swears allegiance to the state and its laws will be able to receive citizenship." She, too proposes making the Law of Return a Basic Law. In connection with the proposal to set a trial period or period of adjustment for new immigrants, it is worth recalling what happened in the 1992 Knesset elections - the first elections after the start of the wave of mass immigration from the former Soviet Union. At the time a stormy debate arose over whether it was reasonable that people who hardly knew anything about Israel and its problems and did not know the language should already be able to vote and thus possibly decide the country's fate.

In support of expansion

Not everyone believes that the grandchild clause should be reduced in scope. Indeed, there are some who think the application of the Law of Return should be broadened and not diminished. Prof. Amnon Rubinstein, for example, says that "my conception of a Jew is different. I consider anyone who wants to belong to the Jewish community a Jew. Israel is not all that attractive. It draws people from the Third World, not from Jewish communities." In his view, it is precisely the phenomenon of mixed marriages and assimilation that makes necessary the grandchild clause, "in which I see a call of `and the sons shall return to their border.'"

Yossi Beilin, the leader of Yahad (formerly Meretz), supports the expansion of the Law of Return "such that more people will be considered Jews." He would like to define as a Jew not only a person whose mother is a Jew but also anyone whose father is a Jew and indeed anyone who is defined as a Jew by the Jewish communities abroad. His proposal makes the need for the grandchild clause almost superfluous, because in most cases the grandchild would in any case be considered a Jew.

A similar proposal was put forward in the past by Prof. Avi Ravitzky, from the Israel Democracy Institute and the Institute for Jewish Studies at the Hebrew University of Jerusalem. According to his proposal, the right to return would be granted in the law to two types of people: "Those who are recognized as a Jew by the halakha" and "those who are recognized as an integral member of a living Jewish community." The second condition, he says, need not pose a problem for Orthodox Jews, because it does not include the proposition that anyone who is a member of the community has by the same token joined the Jewish religion.

The practical prospects for annuling the grandchild clause or changing the Law of Return can be seen from the following story. At the start of the term of the previous Knesset, when the Likud was in the opposition, MK Tzipi Livni put forward a proposal to amend the Law of Return. She did not get the support of the leader of the opposition at the time, Ariel Sharon. When Livni was appointed minister of immigrant absorption at the beginning of the present government's term of office, Sharon remembered her idea and made it clear to her that, as immigrant absorption minister, she was not entitled to work for a change in the Law of Return.

Next article on Sunday: How to revoke citizenship

An unexceptional law

In June 2001, the Hungarian parliament passed a law granting every person of Hungarian-Magyar descent the right to work in Hungary for three months of every year, as well as the right to social-welfare support, free education and medical insurance whenever he is in Hungary. After World War I, Hungary lost a considerable portion of its territory, resulting in the creation of a diaspora of about 3 million Hungarians in Ukraine, Romania, Yugoslavia, Croatia, Slovenia and Slovakia. Hungary rejected the criticism that was leveled against it in Europe and explained the step it took by citing the need to protect its diaspora.

The Israeli Law of Return, then, is not exceptional. "There is hardly a country that has a national diaspora which does not have a law or an arrangement similar to the Law of Return," Amnon Rubinstein wrote in Haaretz five years ago. According to Rubinstein, these laws determine the diaspora's right to citizenship "and do not infringe on the essence of the country's democracy, where all the other rights are equal for all the citizens." The principle, in other words, is that there is preferentiality in the right to become a citizen but there is no discrimination between citizens.

The law that Israelis will undoubtedly find most interesting is the return clause in the constitution of the Federal Republic of Germany. That clause conferred automatic citizenship and granted financial aid to hundreds of thousands of "refugees and displaced persons of German ethnic origin." Dr. Alexander Yakobson, who teaches history at Hebrew University, explains that in the past this law applied to people from all over Eastern Europe. After the collapse of the Soviet Union and the establishment of the democracies in Eastern Europe, it was decided a few years ago to restrict the application of the law solely to residents of the former Soviet Union.

According to Rubinstein, nearly all the Balkan and Baltic countries have laws of return. For example Par. 375 of the Greek Citizenship Law confers automatic citizenship on individuals "of Greek nationality," as long as they enlist for military service. The Bulgarian constitution gives "an individual of Bulgarian origin" the right to citizenship in a shortened procedure. The constitution of Armenia grants automatic citizenship to "an Armenian by birth" who resides in the Republic of Armenia.

There are also countries which do not emphasize the issue of the dominant nationality but still grant the right of return to a particular national diaspora. In Finland, for example, after the collapse of the Soviet Union a demand was raised to return to the homeland Russian citizens of Finnish origin who lived in Karelia, which Finland had been forced to cede to the Soviet Union. Under Finnish law, a person from the Soviet Union "of Finnish origin: is entitled to permission to reside permanently in Finland (which is a condition for citizenship). The law defines someone as being "of Finnish origin" if they, or their parents, or at least two of their four grandparents were registered as Finnish citizens or if they have close ties to Finland but cannot prove their origin from their papers. Like the Israeli Law of Return, the permanent permit is not granted only to those of Finnish origin but also to their spouses and children.

Similarly, the Irish Citizenship Law, of 1986, grants the interior minister the authority to confer automatic citizenship on peoples of Irish origin or affiliation. Rubinstein explains that the laws of return "are not struck down by the European Court of Human Rights because international law recognizes the right of states to adopt an immigration and citizenship policy that benefits the members of a particular nation." What is prohibited is discrimination against the members of a particular nation. (I.S.)

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