by Elzbieta Okuniewska
Almost immediately after the new Israeli government was formed, the Likud and Habayit Hayehudi agreed in their coalition agreement to promote the controversial bill, altering an already fragile balance between the Jewish and the democratic character of the state. The so called “Dichter Law”, proposed by then Kadima party Knesset Member Avi Dichter (currently a Likud member) in its initial form called for subordination of the democratic rule of law in Israel to its Jewish cultural, religious and national heritage. Although the original law proposal under harsh criticism of many Knesset Members was re-drafted and moderated by its author, the change regarded wording rather than its actual meaning. Taking into account the legal significance of the Basic Law, the persistent efforts of certain political forces to amend it and the astonishing urgency of the new ruling coalition to advance these amendments, one may get an impression that it is not the Jewish character of Israel that requires protection, but rather the democratic character.
The Jewish and the Democratic
The Basic Laws are actually a group of several, general laws which serve as the de facto constitution of Israel. They consist of bills enacted by the Knesset between 1958 and 2001 that regulate the most important areas of the state’s activity: organization of the Parliament and the Government; range of responsibilities of the President, the Judiciary and the State Comptroller; functioning of the Army and the Economy; the issues of land ownership and occupation; the status of Jerusalem as the capital of Israel as well as human liberties. Both the Basic Laws (with particular regard to the Human Dignity and Liberty Basic Law of 1992) and the Declaration of Independence of the State of Israel (1948) set the core values and principles of Israel: “a Jewish and democratic state” “based on freedom, justice and peace” that “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and “will guarantee freedom of religion, conscience, language, education and culture”. Thus the founding legal documents of Israel place its political system within a unique, yet risky dialogue between the liberal-democratic rule of law and the Jewish ethno-national heritage.
Negotiation of identities
One may claim that the Jewish and the democratic values in this case are self-contradictory, as a liberal democracy by definition should not prioritize any ethnicity, culture or religion over others. However, reality is often much more complex than theoretical assumptions. In fact, in the dilemma between democratic egalitarianism and ethno-national, religious identity Israel is not alone. The right balance is still a matter of negotiations not only in many relatively “new” democracies such as Poland, that still deals with its strongly Catholic character, but also in states with a long democratic tradition, such as France, currently forced by the challenge of immigration to redefine its understanding of secularism, nationality and identity. Moreover, the fierce discussion over the preamble of the European Union Lisbon Treaty (ratified eventually in 2009) clearly shows that boundaries of secularism and range of influence of ethno-national and religious factors on legislation remain flexible and highly sensitive matters. Therefore, taking into consideration the unprecedented heterogeneity of Israeli society with its multiple cleavages as well as historical circumstances of creation of the state, the current “Jewish-democratic” character of Israel could be treated as an unavoidable social consensus which doesn’t necessarily preclude future democratization and equalization of rights.
Ethnic democracy on the offensive
The real problem starts when state legislation is being used in order to legitimize existing and enable future institutional discrimination. It starts, when the law is being intentionally designed in a way that prevents any future democratization of the state. What Avi Dichter and his supporters propose is not an amendment or reinterpretation of fixed components of the Basic Laws. He wants to complement the existing catalogue with an additional law, known as the “Jewish Identity Bill” or “Jewish State Bill”, primarily aimed at assuring the Jewish character of Israel through an indisputably hegemonic legal status. This law would describe Israel as a “Nation-State of the Jewish People” (neglecting the “democratic” component), reduce the status of the Arabic language as well as provide a closer linkage between the (already strongly interconnected) Jewish religious laws and state legislation. Legal loopholes are, as states the proposed law, supposed to be interpreted in accordance with the Jewish law. Introduction of this new bill would further deteriorate the already secondary status of non-Jewish inhabitants of Israel, who constitute up to 25% percent of the country’s population. Furthermore, it would significantly increase the tension between the Jewish and the Arab citizens of Israel and decrease the sense of belonging of the latter. Moreover, such legislation would cut off the Israeli political system from its democratic traditions and shift it towards the ambiguous, defective character of an ethnic democracy. This term, introduced by an Israeli political scientist Sammy Smooha in 1997, relates to “a democratic state that is identified with and subservient to a single ethnic nation”. While political scientists like Smooha, Wolfgang Merkel or Fareed Zakaria discuss whether and to which extent various subtypes of “illiberal democracies” and semi-authoritarian regimes can still be considered free and democratic, it is doubtful that abandonment of the rule of law would benefit Israel either on the domestic or on the international political arena.
The law proposed by Dichter goes far beyond the social consensus represented by the term “Jewish and democratic”. Its introduction would pose several significant threats to the Israeli domestic relations and harm its international position as a democratic state. More than that, due to the fundamental character of the Basic Laws, it would be very difficult to change it. Democracy, human rights and the rule of law should not be taken for granted. In order to last, they have to be cherished and protected by policy makers, civil society and public opinion. Dichter’s law will be debated further in the Knesset. Let us hope that the democratic character of the state will turn out to be at least as important for the Israeli legislators and public opinion as the Jewish one.