In the Jewish nation-state kerfuffle, much ado over very little substance
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AnalysisA government on the brink over a line in the sand

In the Jewish nation-state kerfuffle, much ado over very little substance

The controversial proposal to pass a law defining Israel’s Jewish status threatens to fell the third Netanyahu government -- and for what?

Haviv Rettig Gur is The Times of Israel's senior analyst.

Prime Minister Benjamin Netanyahu in Jerusalem, November 05, 2014. (photo credit: Miriam Alster/Flash90)
Prime Minister Benjamin Netanyahu in Jerusalem, November 05, 2014. (photo credit: Miriam Alster/Flash90)

The third government of Prime Minister Benjamin Netanyahu has been marked by infighting and distrust almost from the start. The drafting of ultra-Orthodox youth to national service, reforms to the state rabbinate, the controversial “0% VAT” tax cut for some first-time homebuyers, a constitutional amendment demanding a national referendum before Israel can withdraw from sovereign territory – all these were the subject of bitter public spats between members of the ruling coalition.

But none produced the sheer spectacle of angry recriminations witnessed at Sunday’s cabinet meeting over the efforts to draft a constitutional Basic Law formally defining Israel as the Jewish nation-state.

At a cabinet debate over a three-page statement of principles that would guide the drafting of the new law, Finance Minister Yair Lapid charged that the proposal was a “bad” one, and that Likud founder Menachem Begin and the party’s ideological forebear Ze’ev Jabotinsky would have opposed it. Justice Minister Tzipi Livni rallied to defend democracy, she said, by opposing the measure.

In the end, the cabinet decision passed 14-6 in a clean divide between the three right-wing parties supporting the measure and the two centrist parties, Lapid’s Yesh Atid and Livni’s Hatnua, opposed.

The accusations by Lapid and Livni, the fact that according to leaked reports from the closed cabinet meeting voices had been raised and emotions were raw, all suggest that the coalition’s breaking point may be close.

Justice Minister Tzipi Livni (left) and Finance Minister Yair Lapid (right) in the Knesset, July 31, 2013 (photo credit: Flash90)
Justice Minister Tzipi Livni (left) and Finance Minister Yair Lapid (right) in the Knesset, July 31, 2013 (photo credit: Flash90)

In a sense, it would be fitting were the coalition to collapse over Sunday’s cabinet debate, if only because it so neatly typifies the conduct of this government so far.

For one thing, Lapid and Livni’s claims that they were voting against “a bill that places the Jewish character of the state above the democratic,” to quote Lapid, was untrue. It is true that Sunday’s cabinet decision contained two versions of the nation-state bill – one from the previous Knesset proposed anew by MK Ze’ev Elkin (Likud), and another by MKs Yariv Levin (Likud) and Ayelet Shaked (Jewish Home). But the government did not vote on those bills, which in some of their articles actually contradict each other. Rather, the cabinet passed a decision that contained both bills, but which noted explicitly that the vote was conditioned on the bills being “subsumed by a government bill that will be proposed by the prime minister, which will be drafted on the basis of the principles contained in the appendix to this decision, and will be adapted to [the government bill].“

The Elkin and Levin-Shaked versions of the bill identify Israel only as “the national home of the Jewish people.” Democracy does not constitute part of the state’s identity in the right-wing proposals, but merely, in the words used by both bills, “its form of government.”

But the cabinet decision on which the ministers voted did not “pass” the right-wing bills, as much of the Israeli media reported. It actually voted to subsume them, and thus de facto to replace them, with a larger government bill based on the prime minister’s 14 principles. And in principle 2-D of the decision, one reads, “The State of Israel is a democratic state, established on the foundations of liberty, justice and peace envisioned by the prophets of Israel, and which fulfills the personal rights of all its citizens, under law.”

There is no hedging, no distinction between what Israel simply “is” and what its “form of government” might be.

There is, in other words, no reason to vote against the cabinet decision if, as Lapid explained Sunday, “we are for the nation-state law, but not this law. The law that was proposed today places the Jewish state before the democratic one. It distinguishes between the two [principles].”

A centrist pedigree

Sometime in late 2007, eight men sat on a porch in the small village of Reut near Modi’in. Over a modest fare of coffee, crackers and cheese, the group discussed a new threat to Jewish national independence in the land of Israel.

In 2006 and early 2007, Israeli Arab civic groups produced three documents about the nature and identity of Israel: The Arab Higher Coordinating Committee’s “Future Vision for the Arab Palestinians of Israel,” Adalah’s “Democratic Constitution,” and the Mossawa Center’s Haifa Declaration.

The documents marked the first serious foray of Israeli Arab civil society into the question of Israel’s identity, and their shared conclusion was unequivocal: the Israeli state’s identification with Jewish nationhood must end. As the country’s “indigenous minority,” Israel’s Arabs deserved political autonomy, special protections, and a dismantling of the prevailing ethnic majority’s national self-determination.

Which brings us to the group gathered on that porch in the winter of 2007. The porch itself belonged to former IDF chief of staff Moshe Ya’alon, who had left the army’s highest post two years earlier while in a public feud with then-defense minister Shaul Mofaz over the government’s plans to unilaterally withdraw from the Gaza Strip.

Yisrael Harel (photo credit: YouTube screen capture)
Yisrael Harel (photo credit: YouTube screen capture)

The remaining guests make up a telling cross-section of Israeli politics: Dubi Helman, the left-wing secular socialist ex-Mapai party activist and former kibbutz movement leader; Yisrael Harel, journalist and former founding chairman of the umbrella council of Jewish West Bank settlements; Professor Avi Diskin, a political scientist and supporter of Palestinian statehood from before the idea became popular in the 1990s; Professor Asher Cohen, noted scholar of religious Zionism; Yoel Golovensky, Harvard-trained Israeli-American lawyer and right-wing activist; and Adi Arbel, a young right-wing activist who served as coordinator of the gatherings.

Meeting some half a dozen times over the next six months, the “thinking group” discussed ways of responding to the Arab Israeli challenge.

“In the disengagement [from Gaza in 2005], the State of Israel announced that it was giving up on the justice of its settlement [of the West Bank and Gaza],” says Adi Arbel, trying to explain the thinking of the group.

In that withdrawal, Israel effectively “admitted that it was only a matter of time before the Palestinian nation-state was established, so it was time [for the Arab Israeli activists] to open up the new front, the campaign over the status of the state of Israel itself.”

Whether they supported Palestinian national self-determination (Diskin and Helman) or opposed it (Ya’alon and Harel) all the members of the group drew the line at the attempt to deny a parallel Jewish right to national independence for the Jews.

The group’s discussions turned into an initiative of the Institute for Zionist Strategies, a small Jerusalem think tank led by Harel and Golovensky, which produced the first version of the nation-state bill. In 2009, Arbel and Helman published a paper on the subject, and in the 2009 elections, the call for a nation-state bill actually made it into the platform of the centrist Kadima party under its then-leader Tzipi Livni.

In the summer of 2009, IZS staff working on the bill met with former Shin Bet head and then-Kadima MK Avi Dichter, who adopted the initiative eagerly. Dichter is known as a political centrist, a critic of the far-right and an advocate of separation from the Palestinians.

In fact, in explaining his own support for the bill, he described it as an end-run around Netanyahu’s demand that the Palestinians recognize Israel as the nation-state of the Jewish people – a demand Netanyahu saw as a litmus test for the Palestinian willingness to end the conflict. By defining Israel as the Jewish nation-state in its own constitution, simple recognition of Israel, which moderate Palestinian leaders have been willing to do, would necessarily constitute acceptance of the state’s constitutional identification with the Jewish nation, Dichter reasoned. It would remove a small but significant obstacle on the road to peace.

Avi Dichter speaks at a press conference in Tel Aviv, Israel (photo credit: AP/File)
Avi Dichter (photo credit: AP/File)

From the summer of 2009 through 2010, Dichter worked diligently with IZS scholars to craft a final version of the bill, and presented it in the Knesset in the summer of 2011. Dichter had garnered 39 signatures for the bill, a remarkable feat in a Knesset that saw 38 MKs serving as ministers or deputy ministers – and thus unable to sign on to legislation – and over two-dozen lawmakers in ultra-Orthodox or Arab parties, each opposed to the basic law on fundamental ideological grounds. Fully 20 of Kadima’s 28 MKs were signed on.

The Jewish nation-state bill began squarely in the political center as a Zionist response to Arab civil society’s efforts to challenge the very principles the bill tries to cement in law.

MK Zee'v Elkin (Likud). (photo credit: Flash 90)
MK Zee’v Elkin (Likud). (photo credit: Flash 90)

Fast forward to 2014, and to the famously clever machinations of coalition chairman Ze’ev Elkin. Elkin began his political career in Kadima under Ariel Sharon, but left the party after the more dovish Tzipi Livni took over as chair. As coalition chairman in the previous government, Elkin earned the respect of fellow lawmakers as a wily and extremely competent political negotiator, a steady hand at the helm of the last coalition who famously never lost a vote in the Knesset plenum in four years. (To be fair, Elkin lost one vote in the 18th Knesset. He was absent from the plenum at the time as his wife was in hospital giving birth. But, of course, the only thing more impressive than a coalition chairman winning every vote is having the government lose the one vote in four years in which he was absent.)

And so it was Elkin, rather than Netanyahu, Livni, Levin or Shaked, who brought back to the Knesset the verbatim copy of Dichter’s original bill. Elkin’s “right-wing” assault on liberty, as Livni now calls it, once had the support of over two-thirds of her own party, not to mention Labor MKs such as Binyamin Ben-Eliezer and Einat Wilf. This strange disparity in responses between the last Knesset and the current one is not an argument in favor of the bill, but it speaks volumes about the seriousness of the criticism.

A lawyerly rebuke

Perhaps the most telling rhetoric from Sunday’s contumelious exchange in the cabinet meeting, however, was offered by Attorney General Yehudah Weinstein, who serves as the government’s top legal advisor.

Attorney General Yehuda Weinstein at a meeting of the Israeli Bar Association in December 2013 (photo credit:  Miriam Alster/FLASH90)
Attorney General Yehuda Weinstein at a meeting of the Israeli Bar Association in December 2013 (photo credit: Miriam Alster/FLASH90)

“The bills that are the subject of this decision,” Weinstein wrote to the ministers in a legal opinion attached to Sunday’s cabinet decision, “deal with an issue that is one of the most foundational principles of the constitutional regime of the state of Israel, and of Israeli society – the defining of the character of the state as the nation-state of the Jewish nation. It is hard to overstate the importance and sensitivity of a Basic Law that will determine the collective rights of the members of Israeli society, and will delineate the ramifications of Israel’s identity as the Jewish state. Beyond the obvious ramifications in the legal realm, a Basic Law such as this one will affect the lives of every citizen and resident in the state, and the shape of society as a whole, in addition to Israel’s foreign relations.”

He continues: “The legislation of every Basic Law, as a stage in the development of the Israeli constitution for generations to come, requires systematic, intensive and intelligent clarification – and how much more so when we deal with the Basic Law that is before us, which seeks to decide questions with which Israeli society has grappled from the moment of the founding of the state, and which have been the cause of disagreements and tensions for generations…. In such issues, one should not discount even a single letter. Before the government bill is drafted, as is proposed [in the cabinet decision], it is very problematic for the government to support private bills…about such a subject as this.”

It may be worth stopping there, because Weinstein goes on for some time. If any reader missed the glaring insult in Weinstein’s words, the fault lies with this writer’s translation. The initiative to pass the Basic Law as a private member bill – as Elkin, Levin and Shaked tried to do – was amateurish and unbecoming of a major constitutional change, Weinstein was explaining.

But Weinstein failed to note that the 1992 Basic Law: Human Dignity and Liberty was proposed as a private member bill after a divided coalition could not pass a larger Basic Law: Human Rights over the opposition of religious parties who worried that constitutional guarantees of some liberal rights such as equality could undermine state religious institutions.

The Israeli state is 66 years old, but sports only a piecemeal constitution whose most important provisions, such as the rights to bodily safety, privacy and economic freedom, were passed because individual lawmakers identified opportune political moments in which to push through private bills.

Israel’s incomplete constitution, made up of the country’s 11 Basic Laws, still does not explicitly guarantee gender equality or free expression, and does not clearly and unequivocally define the state’s identity, either in respect to the Jewish people or the country’s ethnic and religious minorities.

And so Sunday’s spectacle raises a question more disconcerting and dangerous for Israel’s future than any imagined failing in the prime minister’s proposed nation-state bill.

Ministers shouting untruths about a constitution-altering bill at the cabinet table and then proudly leaking news of their bickering; an attorney general lecturing ministers against approving private member bills on constitutional matters, without mentioning that that was precisely how previous constitutional revolutions, ones with which he more readily agreed, had been passed; centrist legislation that is transmuted through sheer political posturing and media ignorance into a far-right proposal – it’s enough to make even the most optimistic Israeli wonder whether the country’s political class and public debate are up to the still unfinished task of building the very nation-state so many political leaders are so loudly trying to rescue.

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