The proposed Basic Law that would enshrine Israel as a Jewish nation-state has many forms and versions, all of which are superfluous. As written here on Monday ("All signs point toward ethnocracy, not democracy, in Israel," Nov. 17) identifying the state exclusively with only one of the groups living here goes against the principle of equal citizenship that is the basis of a democracy. It is conventional to recognize today that states can be an expression of the self-determination of several groups, but if they are to be democracies, they must never identify themselves exclusively with one segment of the population.
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In this sense, the softened form of the proposed Basic Law introduced by Justice Minister Tzipi Livni suffers, like all its predecessors, from the same distinction between the elements of nationality and of citizenship, together with the state's identification with only one national group. This combination, which is characteristic of the Israeli constitutional structure even today, makes it difficult to have an egalitarian democracy in the country.
Still, the current wording that Livni suggests is the “softest” of all the versions of the legislation that have been proposed so far. It is mainly declarative, and repeats statements that appear in other Basic Laws. At the same time, it raises the principles of the Law of Return and the symbols of the state to the status of a Basic Law, which makes them immune to being changed in ordinary legislation. While the High Court of Justice could interpret her declaration that “Israel is the nation-state of the Jewish people, within which it realizes its right to self-determination” as allowing for problematic distinctions between Jews and Arabs, this is not inevitable.
Livni’s version also lacks more concrete instructions like the ones in the version that MK Ze’ev Elkin tried to promote, which challenges rulings by the High Court regarding equal access to land ownership, the requirement of posting signs in Arabic and more. One might even say that the statement in her version that Israel is “a democracy based on the foundations of liberty, justice and peace, which upholds equality among all its citizens” would anchor the principle of equality in a Basic Law, explicitly and for the first time. So far, due to its absence in existing Basic Laws, that principle has been recognized by the High Court as deriving from the right to dignity that appears in the Basic Law: Human Dignity and Liberty.
Compared to Elkin's version we can, at first glance, sigh with relief as we read Livni’s proposed law, and say that it is a balanced bill that gives equal weight to democratic values even as it lays down the Jewish character of the state, and even explicitly protects equality.
But if we look closely at Livni’s legislation, without comparing it with the more extreme versions, we see that as compared to the current situation – in which the Basic Laws already define Israel as a “Jewish and democratic” state – her proposal strengthens the state’s identification with one group only. Even if this has no practical ramifications, this bill will still convey an exclusionary message to one-fifth of the state’s population. Such identification harms equality among citizens and democratic principles, and it is only right to reduce it, not expand it. On top of the actual inequality that exists and the nondemocratic, apartheid-like regime that rules in the occupied territories, it makes the declaration that Israel is a democracy with equality and liberty sound like an empty slogan.
Israel needs to strengthen democracy and equality, not the opposite. If someone wishes to draft a Basic Law dealing with the character of the state, it might be better to borrow from the preamble of South Africa’s constitution, according to which the state “belongs to all who live in it, united in [their] diversity,” rather than use the current version of the bill. Alternatively, one might borrow from Belgium’s constitution the statement that the state is comprised of several communities which the constitution grants equal rights.
In this way, it would be possible to take a step toward true democracy.