The State of Israel, said the Declaration of Independence, will "be based on the principles of liberty, justice and freedom expressed by the prophets of Israel; it will affirm complete social and political equality for all its citizens, regardless of religion, race, or gender." However, the clauses used as the basis for the Basic Law: Nation State, to be presented Sunday by the prime minister to the cabinet, include a statement that seems to be borrowed from the declaration, but veers from it in essence. The State of Israel, it says, is a democratic state "based on the principles of liberty, justice and peace expressed by the prophets of Israel, and affirms the personal rights of all its citizens according to any law."
The principles of liberty, justice and peace expressed by the prophets of Israel remain, but complete social and political equality, which, it should be noted, never came to fruition, has been replaced by personal rights of all citizens "according to any law." The wording is vague, limiting personal rights to "according to any law," and renders the clause effectively useless when the "law" itself is discriminatory. Moreover, personal rights don't include collective rights, like the right to language and culture.
According to the bill, the state "would allow every resident" to preserve his or her culture and language, but that wording sheds the state's responsibility to do so – a responsibility recognized in court rulings that required the state to set up bilingual signage in mixed cities, to provide adequate funding for Muslim religious institutions and more. From now, according to the bill, only Jews would enjoy collective rights, and Arab would make do with personal rights alone.
Justice Minister Tzipi Livni joined the fray, as Jonathan Lis reported last week, with a pacifying opinion supplied by the ministry: The Netanyahu bill, according to the opinion, includes several points that imply equality is inherent in its principles. It says Israel is a democracy, and that equality is a human right at the heart of democratic rule; and it safeguards the "individual" rights of all Israeli citizens. But, as noted above, the protection of "individual" rights is done in the vague wording "according to any law."
As to the declaration of democracy, equal citizenship is indeed a basic component of democracy, but the whole bill is based on undermining equal citizenship by equating the state with only part of its citizenry. The right to self-determination in the state, according to the bill, is limited to Jews. Others only have personal rights "according to any law." Most of the principles in the bill, relating to heritage, symbols, holidays, and the role Hebrew law plays in legislation, equate the state with only one group.
Jurists in the Justice Ministry, like those who gave Livni the opinion, and also Supreme Court justices, may keep repeating that equality is a product of democracy and of personal rights for all citizens. Let's not forget that the Supreme Court itself ruled that harming equality may harm human dignity and liberty, and so it includes the right to equality in the Basic Law: Human Dignity and Liberty, even though it doesn't explicitly appear there.
But this judicial recognition is not anchored in a basic law. The poignant question is why can't Israel's basic laws expressly recognize equality as a right and fundamental value of the state in the same way that it is recognized in the Declaration of Independence?
Things must be spelled out explicitly then: There is no equality in Israel, and equality cannot be recognized on the constitutional level, since that would challenge the inequality created by the complete identification of the state with only one group. Today, no one urges the country's Arab citizens to participate in building the state and its institutions based on "complete and equal citizenship" that appears in the Declaration of Independence.
Complete constitutional equality would also undermine the inequality between men and women, which is maintained by the fact that marriage and divorce in Israel are controlled by a religious system that prohibits women from being judges and that doesn't consider both sexes equal before the law. Even if the High Court of Justice occasionally fills the void that is the absence of equality from our Basic Laws, that void speaks volumes about the inequality underlying the Israeli regime. And this is before even addressing the inequality between Jews and Palestinians in the West Bank, where the two populations are subjected to two completely different legal systems.
In contemporary international law, it customary to talk about "external" self-determination, meaning the right of nations living under foreign rule to independence, and "internal" self-determination, or the notion that states represent multiple populations. The declaration in the proposed law that "the right to exercise national self-determination in Israel is exclusive to the Jewish people" undermines the notion that a large national minority in Israel is also entitled to representation and not just "individual" rights. In that respect, the proposal is a step toward greater discrimination against the country's Arab population, or perhaps toward Foreign Minister Avigdor Lieberman's plan – to remove that population from within the country's borders.
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