Azmi Bishara examines the contradictions at the heart of attempts to steamroll an Israeli constitution The 16th Knesset is strenuously working to hammer together a constitution at a time when the right controls both the Israeli parliament and its Law and Constitution Committee. One of the most important missions of the forthcoming constitution in the view of the Israeli right is to reinforce the notion of the Jewishness of the Israeli state. In order to promote this drive in the media and academic circles the Israeli Institute for Democracy, that elitist establishment that holds its annual conventions in Herzliya, has launched a campaign "for the sake of constitution by consensus". As part of this campaign, the institute resorted to a tactic generally used by Israeli liberals to compel Arab Knesset representatives to toe the party line, which was to conduct a survey among Arab Israelis. In this case, the survey was designed to impress upon Arab MPs the desire of their Arab constituents to participate in the making of a "historic deal" by approving a constitution that upholds the Jewishness of the state in exchange for full equality in civil rights and liberties. Naturally, the survey did not take the trouble to point out to respondents the inherent contradiction between the notions of equality and the Jewishness of the state or the fact that the conservative and religious right will have the ultimate say in producing a new, solid and immutable definition of what it means to be a Jewish state. Until now any such definition has been restricted to a few words in the opening lines of the Basic Laws, which the Arabs never had the opportunity to approve or disapprove to begin with. These same words were imposed on them under Article 7A of the Knesset Law, which the Arabs would oppose if it were put to a vote again, just as they opposed it when the law was first enacted. According to this provision any party that does not recognise Israel as a Jewish and democratic state cannot participate in parliamentary elections. Unlike the constitutional drives of the 1990s the constitutional coup that is currently being engineered in Israel is anything but liberal in inspiration. Nevertheless, it is capitalising on the fact that to the Arabs the word "constitution" has positive connotations. That Arab propaganda has wrongly portrayed the absence of a constitution as a shortcoming in Israeli law and proof of Israel's refusal to set borders and hence of its expansionist designs reflects nothing but ignorance of the actual reasons why a constitution has never been promulgated in this country. The current campaign is an attempt to entrench ideological and historical concepts that are still being contended. It is being spearheaded by the Israeli right as part of its ongoing battle against the liberal democratic concept of a state for all its citizens and, to a lesser degree, against what it perceives as the liberalism of the Supreme Court. The origins, sources and dynamics of the development of Israeli democracy cannot be divorced from their Zionist context. Agreement on Israel being a state for Jews, a Jewish state that seeks to attract Zionist migrations, is at the core of Israeli democracy. In the absence of a shared democratic history or national structure, it was this concept that was promoted as the key to creating the unity and cohesion needed to support pluralistic democracy and to forestall any disintegration of the state through, for example, civil/sectarian war. Zionism, and not citizenship, is the vehicle for Jewish democracy and, simultaneously, the prime obstacle to its development. In times of crisis in particular it is a democracy that has all the hallmarks of the tribe. If it is impossible to separate the Jewishness of the state from the substance of its democracy; this is not because it is stipulated by law. The linking of Jewishness and democracy, that double-barrelled coda appended to the state, appears in only two of the constitutional-like Basic Laws, and these are relatively recent. The Basic Law: Human Dignity and Liberty of 1992 states that the "purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state". The formula is repeated in point two of the Basic Law: Freedom of Occupation. "The purpose of this Basic Law is to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state." Israel's prevailing Zionist culture fears too loose an interpretation of democracy, specifically one the liberal components of which may undermine the notion of the Jewish state or conflict with the essence, identity or character of that state's democracy. There is an instinctive feeling, seldom articulated, that an inherent contradiction exists between the Zionist ideology and character of the state, and the liberalisation of its democracy in the direction of such concepts as the rights of citizenship. Consequently, in order to preclude any further discussion of the subject in the process of legislating acts of a constitutional nature the Knesset has made it de rigueur to include the phrase "Jewish and democratic" in any Basic Law it contemplates passing. After more than half a century since its establishment, Israel is not satisfied with mere recognition as a sovereign state; it wants its definition of the ethnic/religious character of that state recognised too. This demand -- indeed, condition -- surfaced in the context of the Israeli government's discussion of the roadmap, which was officially presented to Israel on 30 April 2003 and only approved a month later, on 25 May. More precisely, the Israeli government did not approve the American-sponsored plan but "agreed to accept the steps set out in the roadmap" to which it appended 14 conditions, and even then the decision was only approved by a majority of 12 to 7. The sixth "comment", as these conditions were termed, required the Palestinians to relinquish the right of Palestinian refugees to return to Israel, or as it was so eloquently worded: "In connection to both the introductory statements and the final settlement, declared references must be made to Israel's right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel." As this reservation makes explicit demands for the recognition of the Jewishness of Israel it must be seen against the background of demands that Palestinians relinquish the right to return before negotiations begin, not against the background of any discussion of the two-state solution, or within the debate between religious parties and secularists over the Jewishness of the state or the controversy sparked by democratic nationalists who propose a modern, liberal democratic state for all citizens. And this is the background that has given rise to the pseudo- liberal Zionist drive to engage the Arabs in Israel in a historic deal in accordance with which they add their blessing to the Jewishness the state has enshrined in a constitution. Only thus can the circle be made complete. The Israeli Law of Return, as was the case with the declaration of independence before that, is founded upon the premise that Israel is the state of the Jewish people. The Supreme Court effectively gave this principle constitutional force when it upheld the decision of the Central Elections Committee (CEC) to disqualify the Land Movement from participating in parliamentary elections. In ruling on the case the court stated: "Israel is not just an independent sovereign state but also a Jewish state on the land of Israel, because its establishment occurred primarily and above all in fulfilment of the natural and historic right of the Jewish people to live, like other peoples, independently in their own sovereign state." This paragraph was lifted almost verbatim from the Israeli declaration of independence, which has evolved into a document of constitutional standing. The same paragraph was frequently cited by Israeli Supreme Court justices in their rulings before the Knesset enacted, in 1985, legislation barring any party that overtly or implicitly, through its actions or deeds, denied the Jewish character of the state of Israel. The carefully worded judgement of Supreme Court Justice Dov Levin on the appeal against the CEC's decision to permit the registration of the Progressive List for Peace (PLP) is in this context illuminating. One of the minority justices who voted to void the CEC decision, Levin stated: "The essential character of the state is that it is a Jewish state, the system of government of which is democratic." In other words, the state is Jewish in substance and only democratic in form. The liberal Justice Aharon Barak went a step further to place the liberal versus conservative debate in Israel squarely in its ideological context. Citing the remarks of his colleagues Dov Levin and Menachem Elon in their rulings on the PLP case, Barak stated: "We are a young state in which an old people has returned to its land. The state of Israel is the realisation of aspirations the Jewish people have had for generations to revive their ancient history, the beginning of deliverance and the realisation of the Zionist vision. Deep is the national, religious and historical political bond between the people of Israel and the land of Israel, and between the Jewish state and the Jewish people." Note that Justice Barak attempts, in effect, to codify Zionism's messianic vision through his affirmation that the Zionist bond is a religious-political one which effectively precludes any distinction between the notions of a "Jewish state", a "Zionist state" and "a state for Jews". The question of the character and identity of the national group that makes up the nation state in the Zionist sense has a direct and crucial bearing on the question of citizenship rights. The Law of Return of 1950 states: "1. Every Jew has the right to immigrate to Israel. "4. Every Jew who has immigrated into this country before the coming into force of this law, and every Jew who was born in this country, whether before or after the coming into force of this law, shall be deemed to be a person who has immigrated to this country under this law. "4A. (a) The rights of a Jew under this law and the rights of an oleh [Jew immigrating to Israel] under the Nationality Law (of 1952), as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion. "4B. For the purposes of this Law, Jew means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." When advocating this law before the Knesset, Ben Gurion said: "This law determines that it is not the state that grants the Jew from abroad the right to settle in the state. Rather, this right is inherent in him by the very fact that he is a Jew, if only he desires to join in the settlement of the land." Then begins the verbal alchemy that attempts to reconcile this "right" with the principle of equality: "In the State of Israel the Jews have no right of priority over non- Jewish citizens," he said, but "...the right to return preceded the State." "In" versus "preceded" -- one cannot help but admire this exercise in political metaphysics, or legal hocus-pocus, that renders equality coterminous with the state and the right of return prior to the state. Ben Gurion continues: "This right originates in the unbroken historical connection between the people and the homeland, a connection that has also been acknowledged in actual practice by the tribunal of the peoples." By "tribunal of the peoples" Ben Gurion was referring, of course, to the Balfour declaration and its incorporation into the British mandate over Palestine. It is doubtful that he would also allude to the UN resolution on the partition of Palestine, for although the resolution stipulates the creation of a "Jewish state" and "Arab state" in Palestine, it stresses that the inhabitants of each of these states would be regarded as citizens as long as they did not apply for citizenship in the other state. Under the partition resolution, there is no distinction between Arab and Jewish rights to citizenship in either state; citizenship derives from residence, not from the "right to return" or an "unbroken" historical bond, religious or otherwise. Had the Arabs not been systematically driven from what would become Israel as Arab villages that fell within the borders of the state defined by the partition resolution were systematically destroyed, Arabs would have formed 45 per cent of the population of the state. Tellingly, there was not so much as an attempt to figure out how the existence of such a large proportion of Arabs could have been rendered consistent with the definition of Israel as a Jewish state. The UN resolution to create two states, one Arab and one Jewish, was a political, not an ideological, decision, but the Zionist leaders exploited it politically to realise their ideological aims. No modern-day Zionist could conceive of a Jewish state, half the population of which is Palestinian. But Israel's founding fathers had no problem accepting the resolution at the time. Ben Gurion's speech may be more than 50 years old but it remains relevant. The distinction he drew between the Jews' superior right to the state and equality in the state is what liberal Zionists now want us to accept in a constitutionally laid-down definition of Israel as a Jewish state. The distinction is pure illusion. It is logically impossible, and practice has proven it false. Discrimination in the right to the state is what led to the expulsion of the Palestinians following the partition resolution and then gave rise to the state's discriminatory regard towards the Arabs that remained -- as either a burden or testimony to Zionism's abundant tolerance. As long as a segment of the populace exists without a right to the state a question will hover over that segment's membership in the state. It should come as no surprise that on 15 January, 1951, hot on the heels of the above-mentioned Knesset speech, and in the same building, Ben Gurion suggested to his Mapai bloc that Israel should take the first opportunity to expel the Arabs, because "they want to throw us into the sea". In so saying Ben Gurion set two records: he, not Meir Kahana, is the first Israeli politician after 1948 to call for the expulsion of the Arabs and he is also probably the first to use the phrase "throw us into the sea" in Israeli political rhetoric. In all events, the very man who had waxed so eloquently about the equality of all citizens "in" the state then urged that a large proportion of those citizens be removed. And now we find Sharon echoing Ben Gurion half a century down the line. Arab citizens have rights in the country but not to the country, he said in a Knesset session. There is only one way to interpret this: sovereign rights belong to the Jews and this sovereignty entitles them to grant (or withhold) rights to others in the country. Needless to say, such a distorted conception of rights puts paid to any notion of equality. The concept of the Jewishness of the state was the instrument that facilitated the enacting of laws for the confiscation of Arab land. It accorded priority to the values of "ingathering" Jews and absorbing Jewish immigrants, regardless of how that conflicted with the rights of non-Jewish citizens, including property rights. The Jewishness of the state was the impetus behind the enactment of the Jewish Agency and International Zionist Organisation Law of 1952, which accords these two Jewish organisations, as well as the Jewish National Fund and other non-governmental organisations, special status and privileges with regard to land ownership, settlement construction and absorbing Jewish immigrants -- tasks that are the sine qua non to the Jewishness of the state. The 15th Knesset (1999 -- 2003) introduced 15 blatantly racist laws all intended to consolidate the concept of a state for Jews and the Jewishness of the state. Recently the Knesset has been presented with another bill intended to reinforce prohibitions against Arab purchase of "state lands" -- these being the lands upon which were constructed Jewish towns and villages inside the Green Line. We do not need to go to great lengths to explain that these "state lands" were originally acquired through the occupation and confiscation of Arab land. Until now the founding and acceptance committees of the cooperative and community settlements determine who is allowed to live in these towns or villages. It was taken for granted that Arabs were not allowed, as these settlements on confiscated Arab land were established for purely Zionist purposes. Nevertheless, the Supreme Court has recently changed all that, having been forced to rule in favour of an Arab citizen who had expressed his desire to assimilate into Israeli society, specifically by moving into this type of settlement. Since then, other attempts have been made to keep Arabs out of community ( yishuv ) lands. In April, the Israel Lands Authority (ILA) issued a tender for marketing 43 plots for housing in a neighbourhood in Carmiel. When it transpired that 17 of the families that made successful bids were Arabs, the ILA froze the tender on the grounds that the land belongs to the Jewish National Fund (JNF), and was thus available for sale to Jews only. Three months later the ILA issued another tender for the Carmiel neighbourhood, this time attempting to preempt Arab participation with the announcement that the land for sale was owned by the JNF. When faced with a court injunction to allow Arabs to participate in the bids, the ILA announced that it had decided to cancel the entire tender. The foregoing cases cast into relief an important historical fact, which is that Israel is still in the process of formulating the contractual relationship between the individual and the state, and that the desired relationship is not one founded upon the concept of citizenship but upon ethnic-religious affiliation. This process is occurring as Arabs are being asked to give a stamp of approval to the Jewish character of the state in a special provision of the constitution. Recently, the right attempted to cut short all further discussion on this issue by introducing a law that stated: "No Arabs will be allowed to live in a Jewish communal settlement." The parliament's legal bureau refused to allow the bill to be brought to the floor of the Knesset on the grounds that it was racist. Instead it insisted on rewording it as follows: "The designation of ILA lands for the purpose of establishing a small community that wishes to maintain its special character would not be deemed discriminatory even if its inhabitants are to be limited to members of one nation only."
