By Vic Rosenthal
Israel does not have a constitution. The role of a constitution is taken by several “Basic Laws,” which define the structure of the Knesset and how it is elected, the budget, the relationship of the state to the military, a partial ‘bill of rights’, and other things. But they do not (yet) describe the nature of the state that they regulate.
A constitution normally starts with a preamble or initial articles which define the nature of the state and the authority by which sovereignty is asserted. It is usually followed by statements about the national languages, state religions (if any), etc. This proposed Basic Law would do this for Israel.
Unlike states which were formed by accretion, conquest or colonial fiat, the state of Israel was created in a conscious act as a concrete realization of the philosophy of Zionism. This is expressed in Israel’s Declaration of Independence, but that document doesn’t have the force of law.
Most Israelis agree with the conception in the Declaration of Independence that Israel will be both a Jewish and democratic state. Naturally there are various definitions of both of these ideas. But as yet there is no explication at all of the Jewish nature of the state in the Basic Laws, and only a partial one of Israeli democracy (for example, there is no explicit statement about freedom of speech and press).
Since the 1990s, several new Basic Laws have been enacted: in particular one entitled Human Dignity and Liberty and another called Freedom of Occupation. These laws are the beginning of a “bill of rights” which, when completed, will express the ‘democratic’ part of the idea of the state.
Some Israeli leaders, for example Naftali Bennett, are concerned that the ‘democratic’ part will be legislated in such a way as to preclude the ‘Jewish’ part, resulting in a “state of its citizens” — a secular, democratic state. In such a state, it would be wrong to have a Law of Return that treats Jews differently than Arabs. It would not be possible to consider the national demographics of the state when making decisions about immigration and granting asylum to migrants. The national anthem and flag, which relate specifically to the Jewish people, would be inappropriate. [Here is a Hebrew video in which Bennett explains his position].
The opponents of the new Basic Law (the Left and Arab parties) claim the opposite, that it is anti-democracy.
It is also the case that Israel’s Supreme Court judges proposed legislation and government actions on the basis of conformity with the Basic Laws (although, interestingly, there is nothing in the Basic Laws that gives it the right to do this!) Bennett and others think that the present situation is unbalanced, and so want to make it necessary for the high court — which has historically leaned to the left — to consider the Jewish part of of the equation in its deliberations.
PM Netanyahu has said that he supports the law, but wants further consideration of details. I think this is a reasonable position.
I understand that the Arabs and the extreme anti-Zionist Left are opposed. But I would say this to those opponents (like Tzipi Livni) who consider themselves Zionists:
We know what you think democracy is. But please explain exactly what you mean by Zionism.