Israel’s Justice Minister Is Undermining Democracy

Ayelet Shaked wants freedom to violate human rights as the parliamentary majority understands it at any time, and freedom to discriminate between the rights of Jewish and non-Jewish citizens

Israeli Justice Minister Ayelet Shaked at the 2018 AIPAC conference in Washington, D.C., March 5, 2018.

The lie that Justice Minister Ayelet Shaked keeps repeating doesn’t become the truth even when it appears in her (impertinent, alas) response to the comments by former Supreme Court President Aharon Barak in an interview with Yedioth Ahronoth last month. “You must have been referring to the constitutional revolution you generated, which inflicted wounds that Israeli democracy is still licking,” Shaked said in a Facebook post in response.

The constitutional revolution wasn’t generated by Barak but by the Knesset, with two Basic Laws it enacted in 1992 under a Likud-led, right-wing government. Shaked added: “The good news is that along with this law [the proposed Basic Law on Legislation] the other matters I’ve been laboring on in the last three years are moving us toward realigning the train track that was twisted a quarter-century ago.”

The Basic Law on Legislation aims to revoke the constitutional status of human rights in Israel so that every governing coalition can stipulate that a law that the High Court of Justice struck down, due to its infringing on human rights, is valid nonetheless. Apart from this legislation, one matter that Shaked has been “laboring on” is the Jewish nation-state bill, which is designed to revoke Israeli Arabs’ equal rights – which the Declaration of Independence promises and which have been established as the only acceptable interpretation of the Basic Law on Human Dignity and Liberty. The Jewish nation-state bill will result in a situation where an Arab citizen’s rights are inferior to those of a Jewish citizen.

“The only democracy in the Middle East” has always insisted that its citizens have equal rights regardless of religion, and now for the first time Shaked is sponsoring legislation that will change this.

According to her doctrine, the train track wasn’t only twisted when the Knesset enacted its glorious legislation – the two Basic Laws that gave human rights constitutional status and compelled the court (with or without Barak) to annul laws that infringed on the rights these laws had stipulated. The track was already twisted 70 years ago when the Declaration of Independence said: “The State of Israel will be open to the immigration of Jews from all countries of their dispersion; will promote the development of the country for the benefit of all its inhabitants; will be based on the precepts of liberty, justice and peace taught by the Hebrew Prophets; will uphold the full social and political equality of all its citizens, without distinction of race, creed or sex.”

“Shaked uses a deceptive argument to explain the need for legislation that will destroy this promise of equality: “I believe the two values, Jewish and democratic, can live together, but constitutionally the democratic aspect has had the advantage, and we must balance this and give the Supreme Court another constitutional tool that will bolster the Jewish aspect too.”

She added: “In our law books the universal values, the rights, are already very firmly fixed, but the national and Jewish values aren’t. In the past 20 years court rulings have sharpened the universal values more than the state’s Jewish character.”

This is not true. The Jewish component in Israel’s definition as Jewish and democratic not only hasn’t been neglected in legislation, it even preceded the human-rights Basic Laws by more than 40 years. The 1950 Law of Return (another magnificent piece of Knesset legislation) defines precisely what a Jewish state is: the national home of every Jew.

Shaked is less interested, justly, in the state’s “Jewish character” as a set of values. She says “each person has his own Jewishness.” But for her this is a euphemism for denying the Arab citizens’ equal rights, whether by denying them the right to family unification, which every Jewish citizen has, or by denying them the right to live anywhere in Israel, and other things in the future. Maybe this is the groundwork for establishing a broader denial of Palestinian rights, ahead of a possible annexation, on the basis of the vision of Habayit Hayehudi MK Bezalel Smotrich.

The controversy centers around two main issues. Shaked objects to the existence of a constitutional law that protects human rights from regular Knesset legislation. Such protection exists in constitutional democracies, and the Basic Law on Human Dignity and Liberty and the Basic Law on the Freedom of Occupation are constitutional by their supremacy over ordinary laws.

Shaked also objects to equality between Jewish and Arab citizens, or in her words, “Zionism will not bow its head to individual rights.” It’s as if Zionism hadn’t been set up to protect the human rights of Jews, who were persecuted in the Diaspora, by giving them a national home of their own (and this includes Breaking the Silence’s right to speak at schools). It’s as if Zionism hadn’t always advocated and emphasized in the Declaration of Independence equal rights to citizens who are not Jews.

Shaked rejects the democratic principle that a constitution protects human rights and occasionally takes precedence (within the stipulated restrictions) over contrasting legislation. She wants freedom to violate human rights as the parliamentary majority understands it at any time, and freedom to discriminate between the rights of Jewish and non-Jewish citizens.

In her reply to Barak, she said she considers human rights sacred. I asked her how this plays out in practice, and she gave me several examples: the war on polygamy and prostitution, the benefit for disabled debtors of limited means, the law for suspects’ rights, the appointment of a woman judge to the Muslim religious courts, the setting of up a court in an Arab city. These are certainly good and important things, but they don’t address the overall basis of human rights that is enshrined in democracies’ constitutions and Israel’s Basic Laws.

Zionist, Jewish and democratic Israel is no democracy because of the apartheid regime it maintains in the occupied territories, despite Israel’s denials. In recent years Israel, increasing government pressure and legislation have been dragging citizens’ human rights – and especially the Arab citizens – backward. Revoking the constitutional protection on human rights and stipulating that the Arab citizens are not equal is another significant step in this anti-democratic, and therefore anti-Zionist, direction.