NIF Australia Briefing Document

8/9/2019 NIF Australia Briefing Document

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Briefing document for consultations about Israel as a Jewish and democratic state

February-March 2014

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A: An historic opportunity 1B: Preparation for the consultation 2

C: Origins of Israels characterization as a Jewish and democratic state 2

D: Two states for two peoples 4

E Different possible interpretations of the two key concepts 5

F: Is a Jewish and democratic state possible in principle? 6

G: The population of Israel today 7

H: Israels Jewish character; some ways in which Jews are preferenced 7J: Palestinian Israelis and other non-Jewish minorities in Israel 10

K: Questions for the consultation 11

L: Selected bibliography 12

A: An historic opportunity

Last year, Israel's Justice Minister, Tzipi Livni, appointed Professor Ruth Gavison to assist her in

preparing "a constitutional arrangement dealing with Israels identity" as "a Jewish and Democratic

state" and Professor Gavison has since asked the Jewish People Policy Institute ( JPPI)1to assist her

by "soliciting and identifying the implications of such a crystallization and enshrinement for Jews

living outside Israel, and their reflections and attitudes toward its possible configuration."

Israels request for input, on a matter so central to its character for generations to come, presents a

unique opportunity for Diaspora Jews to participate in a process that may turn out to be of historic

significance regarding the character of Israel as a Jewish and democratic state and to engage Israel at

a critical legislative junction a true constitutional moment.

1 An independent policy planning think tank founded by the Jewish Agency in 2002 and based in Jerusalem.


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JPPI has initiated a process of consultation, titled Jewish and Democratic Perspectives from World

Jewry, and invited Jewish communities around the world to discuss the meaning of Israel as a

"Jewish and democratic state" and to submit their conclusions to JPPI. Its goal is not to reach a

consensus among the participants, but rather to identify and clarify the various positions held within

the global Jewish community. Findings and conclusions will be analyzed by JPPI and integrated into

the policy recommendations it delivers to Professor Gavison.

Time is of the essence as the legislative process in Israel has already begun. JPPI originally requested

reports by the end of February but has informed us that submissions in March will still be in time.

The Executive Council of Australian Jewry is seeking views from its constituents.

The Board and Advisory Council of NIF Australia have decided to consult supporters by discussion or

written submissions , with a view to forwarding those views of Australian Jews as its contribution to

this enquiry, through the JPPI process or, if that proves not feasible for timing or other reasons,

directly to Professor Gavison.

B: Preparation for the consultation

This opportunity is also an educational one, to increase our understanding of these complex issues.

Each participant is requested to prepare for the consultation by reading this briefing document,

despite its unavoidable length. Participants may also like to read one or more of the resources listed

in the bibliography at the end. Most of the information in this briefing document is from those

sources and sources referenced in them. Other sources are referenced in footnotes.

Please read now the consultation questions in section K on page 11, so you have them in mind,

and can be formulating your answers to them, as you read the rest of this briefing paper.

C: Origins of Israels characterisation as a Jewish and democratic state

1.

In 1917, the British Foreign Secretary, Lord Balfour, wrote to Baron Rothschild that theBritish government viewed with favour the establishment in Palestine of a national home

for the Jewish people, and will use their best endeavours to facilitate the achievement of

this object, it being clearly understood that nothing shall be done which may prejudice the

civil and religious rights of existing non-Jewish communities in Palestine, or the rights and

political status enjoyed by Jews in any other country.

2. The preamble to the League of Nations 1922 Mandate for Palestine recognised the

historical connection between the Jewish people and Palestine and the grounds for

reconstituting their national home in that country and made Britain responsible for putting

into effect the 1917 Balfour Declaration in favour of the establishment in Palestine of a

national home for the Jewish people, it being clearly understood that nothing should be

done which might prejudice the civil and religious rights of existing non-Jewish communities

in Palestine, or the rights and political status enjoyed by Jews in any other country. Article 2

provided that: The Mandatory shall be responsible for placing the country under such

political, administrative and economic conditions as will secure the establishment of the

Jewish national home, as laid down in the preamble, and the development of self-governing

institutions, and also for safeguarding the civil and religious rights of all the inhabitants of

Palestine, irrespective of race and religion.

3. The UN Partition Plan of 1947 recommended division of Palestine into a Jewish state and an

Arab state. The 3 September 1947 report of the United Nations Special Committee on

Palestine made clear that the recommended partition was based not only on the existing

Jewish population but allowed also for the Jewish state to serve as a national home for theentire Jewish people. UN General Assembly Resolution 181 thus reflected Wilsonian


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principles of national self-determination, regarding the Jewish people as a national group,

with a shared history and sense of collective identity, and not merely as co-religionists. The

Partition Plan also called for economic union and for each of the two states to adopt a

democratic constitution.

4. The Declaration of the Establishment of the State of Israel on 5 May 19482asserted the

natural right of the Jewish people to exercise self-determination in its sovereign state and

proclaimed the establishment of the Jewish State in Palestine, to be called ISRAEL .Although it did not use the word democracy, it did declare also that: 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; will

guarantee full freedom of conscience, worship, education and culture; will safeguard the

sanctity and inviolability of the shrines and Holy Places of all religions; and will dedicate itself

to the principles of the Charter of the United Nations.

5.

Unlike many other democracies (the United Kingdom is a notable exception), Israel does nothave a written constitution. The Knesset was supposed to enact one shortly after creation

of the state but in 1950 deferred doing so.3 Reasons offered included the more urgent and

pressing demands of the continuing state of war, managing mass migration, building the

nation, and avoiding fanning division between religious and secular.4

6. The Knesset has since enacted various Basic Laws, which govern the operations of the

state apparatus, elections, public lands etc. and are capable of overriding ordinary

legislation, and which, together with the 1950 Law of Return (see H.3 on page 7 below) and

the Status Quo Agreement with the Orthodox (see H.4 on page 8 below) are sometimes

referred to as Israels small constitution.

7. During the 1984 Knesset elections, proposals were advanced to make Israels democratic

character subservient to a religious interpretation of its Jewish character, which would have

created in effect a halachic theocratic state. As a result, in 1985 the Knesset amended The

Basic Law: the Knessetby insertion of a bar on participation in elections by a candidates' list

whose objects or actions, expressly or by implication, negated either the Jewish or the

democratic character of the State of Israel or incited racism. In 1999 that provision was

further amended to apply also to individual candidates. During elections for the 16th

Knesset, attempts by the Central Elections Committee to bar two Arab candidates under this

provision and its refusal to bar a right-wing activist were subsequently challenged, which

gave the Israeli Supreme Court an opportunity to consider the interpretation of Jewish and

democratic; see E.3 and E.5 on page 5 below.

8.

In 1992 the Knesset adopted two human rights-related Basic Laws: On Human Dignity andLiberty and On Freedom of Occupation. The former took final shape in 1994. These laws

are the closest Israelis have to a bill of rights. Their language is therefore important:

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.

(This was the first legislative use of the phrase Jewish and democratic state.)

2 Also commonly but inaccurately referred to as the Declaration of Independence.

3 The resolution proposed instead a series of Basic Laws, which could eventually become chapters of the constitution.

4 Such division had been managed by compromise in the Declaration of the Establishment of the State but was evident

again in the 1950 Knesset debate, which focused heavily on how a constitution should frame Israels Jewishness. Somewanted it defined as a national and cultural affiliation entrenching the separation of religion and state - while others

wanted a more religious conception of the Jewishness of the state.


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The rights under this Basic Law may only be affected by a law that is befitting the

values of the State of Israel, is intended for a proper purpose, and to an extent that is

not excessive or by regulation enacted by virtue of express authorization in such law.

(Ordinary legislation that limits a constitutional human right may thus be declared

unconstitutional if it does not befit the values of the State of Israel as a Jewish and

democratic state or fails to meet the other stated criteria.)

Fundamental human rights in Israel are founded upon recognition of the value of the

human being, the sanctity of human life, and the principle that all persons are free;

these rights shall be upheld in the spirit of the principles set forth in the Declaration of

the Establishment of the State of Israel.

(The Declaration itself had not previously had the force of law, though it was used by

the courts as a guiding interpretative tool. But in these Basic laws its principles were

recognised in substantive Israeli law.)

While these Basic Laws guarantee a number of important rights (including protection of life,

body, dignity, property, privacy, intimacy and freedom of occupation), they do not cover

all the rights covered in many other Western countries (e.g. in the EUs Charter ofFundamental Rights) or even spell out in terms all the rights implied in the Declaration and,

unlike some other Basic Laws, can be revoked by a simple majority of the Knesset. The Basic

Law on Freedom of Occupation can also be overridden by a simple majority if the legislation

expresses that intent, but the overriding legislation will expire after no more than four years.

9. The characterisation of Israel as a Jewish and democratic state is now accepted by Jewish

Israeli leaders of virtually all political persuasions. But what that means, or should mean, for

Israeli society is still being debated and worked out. This is the territory participants are

invited to explore in this consultation.

D: Two states for two peoples

As appears from section C above, the right of the Jewish people to self-determination in a Jewish

nation-state achieved international recognition in a context that recognised the same right of the

Arab inhabitants of Palestine, who have since identified themselves as the Palestinian people.5

Since 2001, successive Israeli governments have recognised that right of the Palestinian people.6

Although a Palestinian state does not yet exist, this discussion of Israels character as a Jewish state

nonetheless takes place on the basis that Palestinians are entitled to, and will in due course achieve,

self-determination in a Palestinian state (and, by necessary implication, that Israels occupation of

the West Bank ought to be ended by direct negotiations that, inter alia, address security concerns

and define borders). The underlying acceptance of the justice of two states for two peoples is

relevant when considering the position of those Palestinians who became, and choose to remain,citizens of Israel.

5 As this briefing document is being prepared, it is widely anticipated that the United States Framework Agreement,

being drafted by a team led by Martin Indyk, will describe Israel as the nation state of the Jewish people and Palestine

as the nation state of the Palestinian people.6 In December 2001, Ariel Sharon was the first Israeli Prime Minister to state that a Palestinian state was the solution to

the conflict and the goal of his administration. The government headed by Ehud Olmert repeated the same objective.

And Benjamin Netanyahu recognised the Palestinians right to govern themselves in his speech at Bar-Ilan university on

14 June 2009 (see: http://mfa.gov.il/MFA/PressRoom/2009/Pages/Address_PM_Netanyahu_Bar-Ilan_University_14-

Jun-2009.aspx).


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E: Different possible interpretations of the two key concepts

1. The terms Jewish state and democratic state are capable of being defined in various

ways.

2. Jewish state could be interpreted to mean, for example:

a halachic (i.e. theocratic) state;

a state of Jews (close to Herzls description i.e. a nation state like any other but

where the majority of the population are Jews, with natural consequences for

dominant language, culture etc); or

a state of the Jewish people (a sense which additionally recognises the right of the

Jewish people as a whole to self-determination in that state).7

3. In a pioneering judgment on interpretation of Jewish and democratic in The Basic Law: the

Knesset(see C.7 on page 3 above), then Chief Justice Aharon Barak described the minimum

requirements for a Jewish state as follows:

"What, then are the 'core' characteristics shaping the minimum definition of the State

of Israel as a Jewish State? These characteristics come from the aspects of both Zionism

and heritage. At their center stands the right of every Jew to immigrate to the State of

Israel, where the Jews will constitute a majority; Hebrew is the official and principal

language of the State and most of its fests and symbols reflect the national revival of

the Jewish People; The heritage of the Jewish People is a central component of its

religious and cultural legacy" (SCJ (Bagatz) 11280/02, PiskeyDin 57 (4), 1: 101)

Is any more required for Israel to be a Jewish state? Could any of those parameters be

dispensed with or qualified?

4. Any democratic state would need as a minimum an institutionalised legal process allowing

adult citizens to elect representative governments (the basic requirement) but could befurther defined in different ways, by adding further requirements, for example (the terms in

quotation marks are used here for ease of reference only):

modern democracy, adding to the basic requirement one citizen, one vote and

the separation of legislative, executive and judicial powers;

secular western democracy, adding to the requirements for modern democracy

the separation of religion and state;8

liberal democracy, adding to the requirements for secular western democracy

constitutional protection of human rights and a commitment in principle by

government to equality and social justice.

5. In the same judgment as referred to in E.3 above, Justice Barak said the minimal definition of

"a Democratic State" is: "Recognition of the sovereignty of the people manifested in free

and egalitarian elections; recognition of the nucleus of human rights, among them dignity

and equality, the existence of separations of powers, the rule of law, and an independent

judiciary system"

7 This seems to be the sense in which a Jewish state came to be recognised in modern international law: see section C

above.8 The Australian Constitution, e.g., provides the Commonwealth may make no law establishing any religion, requiring

any religiousobservance, or prohibiting the free exercise of religion and that no religious test shall be required as aqualification for any office or public trust under the Commonwealth. (The United Kingdom, on the other hand, although

a secular state in many ways, does still have an established religion.)


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F: Is a Jewish and democratic state possible in principle?

On the spectrum of theoretical possibilities, a theocratic state - where theology is the ultimate

arbiter, not the people - could not be a democracy. At the other end of the spectrum, some would

argue that, to be democratic, a state must be completely neutral and treat all its citizens equally in

every respect. But there is wide acceptance, supported by respectable expert opinion and empirical

examples, that a state can have a particular ethnocultural character and still be a democracy for all

its citizens.9

There is only marginal support in Israel for further state entrenchment of religious law. But in what

then does or should Israels Jewishness consist? And how should the state reconcile its wish clearly

to express its Jewishness with what might seem to be the contradictory aspiration to be a

democratic state that bestows equal rights on all its citizens?

For different Israeli legal interpretations of Jewish and democratic in the Basic Laws see

http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0020_0_20304.html .

In briefest summary:

Aaron Barak, former Chief Justice and President of the Israeli Supreme Court, thinks

Jewish state should be interpreted at a level of abstraction high enough to be

consistent with democratic principles and human rights.

Justice Menachem Elon thinks Baraks interpretation does not accord sufficient

independent weight to Jewish law and heritage, which needs to be consulted and

weighed against democratic values in each particular instance.

According to a third Justice, Haim Cohen, where a value in Jewish law or tradition is of a

kind found also in democratic values, a judge should apply the Jewish interpretation of

that value in preference to interpretations of the same value in other legal systems. But

where Jewish values conflict with democratic values, the latter must prevail.

In the opinion of Bar Ilan Professor Ariel Bendor, a law must be consonant both with the

values of the State of Israel as a Jewish state and with the values of the State of Israel as

a democratic state and will be invalid if inconsistent with either of those sets of values.

9 University of Haifa sociologist, Sammy Smooha, coined the term "ethnic democracy" in a book published in 1989:

Ethnic democracy is located somewhere in the democratic section of the democracy-non-democracy continuum.Ethnic democracy is a system which combinesthe extension of civil and political rights to individuals and some

collective rights to minorities, with institutionalization of majority control over the state. Driven by ethnic

nationalism, the state is identified with a core ethnic nation, not with its citizens ... at the same time, the minorities

are allowed to conduct a democratic and peaceful struggle that yields incremental improvement in their status.

Ethnic democracy provides the non-core groups with more democratic rights, political participation, influence and

improvement of status than ethnocracysupposedly does. It differs also from a Herrenvolkdemocracy which is by

definition officially limited to the core ethnic nation.

Israel proper qualifies as a political democracy on many counts. . . Notwithstanding concerns that Israeli democracy

is an overburdened polity . . . it has thus far functioned quite well. . . . Simultaneously, Israel is a special case of an

ethnic state. It defines itself as a state of and for Jews, that is, the homeland of the Jews only ... the state extends

preferential treatment to Jews who wish to preserve the embedded Jewishness and Zionism of the state.

See further the views of Ruth Gavison and others listed in the bibliography; also Yoav Peled, The viability of ethnic

democracy: Jewish citizens in inter-war Poland and Palestinian citizens in Israel, Ethnic and Racial Studies Vol. 34 No. 1January 2011 (http://hebrewjudaic.as.nyu.edu/docs/IO/4662/PeledPaperERS.pdf)


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G: The population of Israel today

1. As at 1 January 2014, Israels population was 8,132,00, comprising:

6,102,000 (75.2%) Jews;

1,682,000 (20.6%) Israeli Palestinians/Arabs (Muslim and Christian);

348,000 (4.2%) others (non-Arab Christians, Bahai et al.) 10

2. 73% of the Jews were born in Israel and 38.6% of them are second generation or more

Israelis.11

3. Most of the Palestinians are now second or third generation Israelis.

H: Israels Jewish character; some ways in which Jews are preferenced

1. Israel was created in 1948 as a modern, secular nation-state. But it was also declared from

the outset to be the Jewish nation-state and Zionist principles or bodies that existed before

the creation of the state have continued to play large official or semi-official roles within it,

sometimes with adverse consequences for, or creating tensions with, the democraticcharacter of the state. In The Hebrew Republic, Bernard Avishai describes Israel as a

democratic state encasing an older, heroic state12

, made up of residual Zionist institutions

and an officially sanctioned [Orthodox] rabbinate.

National symbols

2. Israels national symbols, anthem and calendar reflect its Jewish character.13

The national

emblem is the menorah (copied, significantly, from that on the Arch of Titus) flanked by olive

branches. The Israeli flag copied the official Zionist flag adopted by the Second Zionist

Congress in 1898, its blue and white stripes evoking the Ashkenazi tallit and charged with a

Magen David. The anthem, Hatikvah, speaks of the Jewish spirit and Jewish yearning over

2000 years to be a free people in our own land. The emblem, flag and anthem contain no

expression at all of the existence of large national and religious minorities of non-Jewish

citizens within the democratic state.

The Law of Return

3. The Declaration of the Establishment of the State stated: The State of Israel will be open to

the immigration of Jews and for the ingathering of exiles from all countries of their

dispersion.14

In 1950, the Knesset incorporated this Zionist principle in Israeli law by

passing the Law of Return, which grants all Jews the right to settle in Israel and to receive

Israeli citizenship immediately on arrival.15

Although it is an ordinary statute, which can be

repealed by a simple majority, it is regarded by many as the foundation expression of the

Jewishness of the state. Migrants to Israel under this law are also entitled to a package of

special economic privileges not available to other migrants.

For purposes of the Law, a Jew has been defined since 1970 asa person who was born ofa Jewish mother or has become converted to Judaism and who is not a member of another

religion", which is consistent with the halachic definition. But another amendment, made in

the same year, mirrors the racial criterion of the 1935 Nuremberg Laws by providing that:

10 http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/newpop.html

11 Ibid.

12 The informal, pioneering state that Zionists built up within the larger colonial state of Mandate Palestine.

13 Some Arab national holidays are also recognised.

14 The United Nations Special Committee on Palestine, which drew up the original partition plan in 1947, believed a

repatriation law to be necessary in order for the Jewish people to exercise their right to self-determination.15 Unless the Minister of the Interior is satisfied that the applicant is engaged in activity against the Jewish people; or is a

danger to public health or security, or is a person with a criminal past, likely to endanger public welfare.


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The rights of a Jew under this Law and the rights of an oleh under the Nationality Law ...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; it is enough therefore to have one Jewish grandparent, or to be married to

someone with one Jewish grandparent.

It has been suggested that an immigration policy which explicitly gives priority to one ethnic

or religious group cannot be justified in liberal democratic terms, and is incompatible with

the requirement that Israel be a democratic state.16

The Law of Return has been defended, however, as consistent with international law and the

practices of other democratic states.17

Official arrangements with Orthodox Judaism; effects on secular or non-Orthodox

4. Israel is a secular state in that it has no official state religion and Judaism does not enjoy any

constitutionally privileged status. Indeed, since Israel inherited the old Ottoman millet

system, by which jurisdiction over family law, marriage, and divorce is given to the religious

courts of the various communities, the Jewish state recognises Muslim, Christian, and Druze

courts (although only in matters of family law, not criminal law).

But the Israeli state does recognise Judaism in ways that some regard as inappropriate for a

secular state. The state gives the Orthodox rabbinate a privileged position and authority so

far as Jewish Israelis are concerned.18

There is a Religious Services Ministry and official status

for the Chief Rabbinate of Israel. This began in compromises that were reached within the

Zionist movement in the lead up to creation of the state and has been continued under

successive governments since.

Orthodox rabbinical courts have exclusive jurisdiction over marriage or divorce between

Jewish Israelis and if a wife commences proceedings before them for maintenance otherwise

than in connection with a divorce. As there is no civil marriage or divorce, many non-

Orthodox Jewish Israelis have to use the services of Orthodox rabbis for such life events.

Rabbinical courts also have some concurrent jurisdiction with civil courts in other subject

areas and, if a proceeding is commenced first before them under one of those heads, are

able to exercise exclusive jurisdiction in that proceeding.

To make matters more complicated, the Israeli Rabbinate, a purely Orthodox body, is far

more stringent in its definition of who is a Jew, leaving thousands of halachically non-Jewish

16 It has also been suggested that the immediate and automatic granting of citizenship may undermine the national

identity of the state and its democratic process by enabling new immigrants to influence Israeli politics before

demonstrating either their commitment to the states Jewish and democratic values or a basic grasp of the relevant

issues. That risk is increased by the very wide categories of eligibility under the Law, which gives rights to immigrate

and claim citizenship to many people who are not halachically Jewish, may not identify as Jews and may have no

meaningful connection with Israel. Should all migrants, including under the Law of Return, be required to follow a

formal naturalisation process including a waiting period and an oath of allegiance before the granting of citizenship?17

The main international convention against discrimination, the 1965 Convention on the Elimination of all Forms of RacialDiscrimination, exempts state laws on immigration, nationality or citizenship from its general principle of non-

discrimination so long as they do not discriminate againstany particular nationality. And according to the Venice

Commission, an advisory body to the Council of Europe, although a state cannot, under European law, provide direct

financial assistance to expatriates, it can encourage the immigration and naturalisation of members of a kin

community. Hungarys so-called Magyar Laws, for instance, which confer special status upon Hungarians living abroad,

were deemed acceptable by the Commission so far as immigration and naturalisation were concerned. In this respect,

the Law of Return is arguably no different. See again also footnote 14.18

The state has also recently given limited official recognition to some rabbis from other streams of Judaism, a movewelcomed by some in those streams but less welcome to those who would like to see clearer separation between the

state and religion.


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immigrants under the Law of Return ineligible for marriage and unrecognised as Jews by

state-empowered authorities.

Approximately 5% of Israels Jewish population are Jewish non-Jews (i.e. not halachically

Jewish), most of whom emigrated from the Former Soviet Union.19

And official surveys in

2009 and 201120

showed that c42% of Jewish Israelis over 20 regarded themselves as

secular21, a further c38% as traditional (religious or not religious) and only c20% as religious

or ultra-Orthodox.22

The majority of Israels population (c75%) are thus secular Jews or non-

Jews.

Roles of the Jewish Agency and Jewish National Fund in land and planning decisions

5. The Jewish Agency for Israel (the Jewish Agency) and the Jewish National Fund (JNF) are

major Zionist organisations that existed long before 1948, played very important roles in

establishment of the state and, although formally independent non-profit organisations,

have enjoyed a privileged position since in their relations with the state.23

It is not possible

to give any adequate summary here of the many detailed ways in which that has occurred in

different periods and continues to occur.

One major effect has been in relation to the control of land, including state lands, whereclose co-operation exists with the Israel Lands Authority (ILA).

One kind of such cooperation first came under scrutiny in the Kaadan case.24

The ILA had

for years been leasing state land to the Jewish Agency, which had then developed dozens of

rural settlements that were open only to Jewish applicants. In this case the Jewish Agency

had allocated land in turn to the Katzir Cooperative Society for establishment of the

communal settlement of Katzir in the north of Israel. A petition to the High Court was

lodged by Association for Civil Rights in Israel (ACRI, NIFs flagship grantee) on behalf of an

Arab couple, both Israeli citizens, who had applied to build a house in Katzir and been

refused on the ground that the settlement was open only to Jews. The court avoided ruling

on the petition for five years. Eventually, in March 2000, it ruled by a majority of 4 to 1 that

any state policy of separate but equal was unlawful, that the state had to act with equality

in regard to all its citizens, that that applied to all state activities, including allocation of state

lands, and that the principle could not be evaded by allocating state lands to the Jewish

Agency, knowing that the Jewish Agency would not permit non-Jews to settle on it. Despite

that declaration, however, because all lots in Katzir had already been allocated 18 years

previously, the only operative order the court made was that the State must consider, in

light of the principle of equality, the petitioners' request to acquire State land in the

settlement of Katzir for the purpose of building their home there. Eight years after the

decision, the Kaadans had still not been able to build a home in Katzir.25

Similar close cooperation has existed for years between state agencies and the JNF, likewise

benefitting Jewish citizens of Israel and discriminating against Arab and other non-Jewishcitizens.

19 See e.g. Policy Paper No.51 in 2004 from the Israel Democracy Institute.

20 http://www.haaretz.com/jewish-world/poll-fewer-than-half-of-israelis-see-themselves-as-secular-1.313462and

http://www1.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab=st07_06x&CYear=201321

Although c82% of secular respondents had a Pesach Seder, 67% lit Chanukah candles, 29% lit Shabbat candles and 24%fasted on Yom Kippur.

22 Israels strongly Orthodox Jews (National Religious and Haredi) have increased rapidly, however, from about 10% of the

Jewish population in the 1950s to a fifth or more of the Jewish population now and the proportion continues to

increase.23

They also serve to link Diaspora Jews to Israel. One question JPPI has sought views on is whether there should be any

codified expression in Israeli law regarding the special relationship between Israel and world Jewry.24 H.C. 6698/95 Ka'adan v. Israel Lands Authority et al. 54(1) Piskei Din 258

25 See Bernard Avishai in the selected bibliography, chapter 1.


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J: Palestinian Israelis and other non-Jewish minorities in Israel

1. Israel has a large native born Arab minority, and other non-Jewish communities, many of

whom lived, or are descended from people who lived, in Mandate Palestine before largescale Jewish immigration and before the foundation of the state. These communities have

their own ethnic, cultural, religious and historical affiliations and have no wish to identify

with or assimilate into Jewish culture. The same is generally true of other minorities in other

states that have a particular ethnic, cultural or religious character.

2. But whereas elements favouring majorities are accepted by minorities in many democratic

states, that is not always the case in continuing conflict or post-conflict situations. In Israels

case, added tensions result from the fact that many Palestinian Israelis also have family ties

to or otherwise identify with Palestinians and Arabs outside Israel. Most of the Israeli

Palestinian leadership shares the Palestinian narrative of the Naqba, regards Arabs as the

indigenous people of what was Mandate Palestine, and does not accept Israel as a Jewishstate (although, inconsistently, they generally support establishment of a Palestinian state).

This naturally sharpens Palestinian Israelis feelings of alienation from expressions of Israels

Jewish character and their resentment of ways in which Jewish Israelis are preferenced and

they are discriminated against.

3. It also sharpens the challenges to Israel to fulfill the vision expressed in the Declaration of

the Establishment of the State by fully safeguarding the democratic rights of its minorities

and ensuring to the fullest degree that they are treated fairly.

6. Institutional and symbolic preferencing of Jews since 1948 has also been accompanied by

economic discrimination against Palestinian Israelis. In October 2000, at the beginning of

the Second Intifada, there were demonstrations by Palestinian Israelis that resulted in a

number of deaths.

The Israeli government appointed a panel of inquiry headed by Justice Theodore Or, which

reported in September 2003.26

. The Commission found that Arab citizens suffer systemic

discrimination in Israel and levelled criticism at the government for failing to give fair and

equal attention to the needs of Arab citizens of Israel. The commission also found that

frustration with discrimination had contributed to the demonstrations in October 2000.

One year after the release of the commissions report, Theodore Or publicly attacked the

government for failing to implement its recommendations.27

The commissions finding of systemic discrimination against Palestinian Israelis, and the need

to rectify that, has been accepted however by successive Israeli governments and by most

Jewish Israelis in survey polls.28

26 http://www.jewishvirtuallibrary.org/jsource/Society_%26_Culture/OrCommissionReport.html

27

HaaretzYair Ettinger, Haaretz, 2 September 2004: "Or slams apathy over Arab riots report"28 Re polls generally see e.g. http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/arabpoll.html;

http://www.brookings.edu/research/reports/2011/12/01-israel-poll-telhami#


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K: Questions for the consultation

The following questions are proposed for NIF Australias consultation.

1. What constitutes your vision, as Diaspora Jews, of a "Jewish and democratic state?

What are the main characteristics that should define Israel as Jewish?

What are the main characteristics that should define Israel as democratic?

What rules should govern Israels balancing of its wish clearly to express its Jewishness

and its desire to be a state that grants equal rights to all its citizens?

2.

Which of the following proposals do you think would strengthen Israels democratic

character? Do you think any of them would weaken Israels character as a Jewish state?

2.1 That all migrants, under the Law of Return or otherwise, be required to

demonstrate basic commitment to and knowledge about Israel and some

competency in Hebrew before being allowed to obtain citizenship and participate

in Israeli politics.29

2.2

That a single Israeli citizenship be recognised, instead of ethnic designations on

identity cards.30

2.3 That a verse be added to Hatikvah that does not refer to anything specifically

Jewish and can be identified with by all Israelis, Jewish and non-Jewish.31

2.4 That there be stricter and more effective enforcement of the status of Arabic as

Israels second official language, e.g. by more strictly ensuring that all national

and local government signs and notices, and other public signs and notices, are in

Arabic as well as Hebrew and that Arabic names are not replaced or otherwise

Judaised.

2.5 That the study of both Hebrew and Arabic be made compulsory in all schools.

2.6

That the Supreme Courts power of review be constitutionally recognised.32

2.7 That the independence of the Supreme Court and its separation from the

legislature and the executive be strengthened by entrenched legislation that

prevents political interference in the selection of judges.33

2.8 That state preferencing of, and special relations with, the Jewish Agency and the

Jewish National Fund cease and they become non-profit civil society

organisations wholly independent of government, like other Israeli non-profits.34

29 The Law of Return was necessary and justified in the aftermath of the Shoah and during the years of mass migration to

Israel by Jews from Arab countries, Ethiopia and the Former Soviet Union. It is arguably still necessary, as antisemitism

continues to grow in various parts of the world. But its very wide definitions admit as citizens even people who may

have little or no meaningful connection to the Jewish people or Israel.30

The Supreme Court last year rejected an application by a group of Israelis to change their registration by the Interior

Ministry on their identity cards from Jewish to Israeli, on the grounds that Israeli is not an ethnicity and any

change in the current system of ethnic registration would have to be a political decision, not a legal one.31

Is it democratic to have an anthem that non-Jewish Israelis, a fifth of the population, cant possibly identify with?

Should any attempt be made to accommodate them? By adding an additional verse to the anthem? By having two

anthems? Canada, for example, has variants of its national anthem that accommodate different identifications of

citizens with French and English backgrounds.32

The power of the judiciary to declare laws void if they violate constitutional norms or similar basic principles is anessential feature of modern democracies. The Israeli Supreme Court exercises that function but its right and power to

do so has not been constitutionally recognised and has been attacked by right-wing politicians in Israel.33

The Israeli Supreme Court has played a major role in defending the defending democratic norms and the rights of

minorities in Israel. But right-wing politicians dissatisfied with some of its decisions (e.g. the Kaadan decision, whichsome describe as post-Zionist) seek to curb its power and to ensure the appointment of judges who share their

political views.


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2.9 That state preferencing of, and special relations with, the Orthodox rabbinate cease

and all citizens of Israel be free to have recourse to religious services of choice or

civil services for marriage and other life events.

3. Should the special relationship between Israel and world Jewry be officially expressed and,

if so, how?

K: Selected bibliography

Copies of the following are available to participants on NIF Australias website at

http://www.nif.org.au/jewishdemocratic_resources

JPPI Background Paper for: Jewish and Democratic: Perspectives from World Jewry

Ruth Gavison, Can Israel Be Both Jewish and Democratic? (an adaptation of a chapter from

her (Hebrew) book Israel as a Jewish and Democratic State: Tensions and Prospects, 1999)

Aharon Barak, The Values of the State of Israel as a Jewish & Democratic State, August 2009

(http://www.jewishvirtuallibrary.org/jsource/isdf/text/barak.html )

Menachem Elon, The Values of a Jewish and democratic state: The Task of Reaching a

Synthesis, Human Rights Review, January-March 2002

Amnon Rubinstein, The Curious Case of Jewish Democracy, Azure, Summer 2010

Prof Gil Troy & Martin J. Raffel, Israel: Jewish and Democratic, Jewish Federations of North

America, August 2013

Asa Kasher, A Jewish and Democratic State: Present Navigation in the Map of

Interpretations, Israel Affairs, vol 11 No 1 January 2005

Bernard Avishai, How Democratic Can a Jewish State Get?, 30 November 2007

(http://bernardavishai.blogspot.com.au/2007/11/how-democratic-can-jewish-state-get.html

Bernard Avishai, The Jewish State in Question, The New Yorker, 2 January 2014

Chemi Shalev, Ben-Gurion didn't recognize Israel as the nation state of the entire Jewish

people, Haaretz, 8 January 2014

The following are books:

Bernard Avishai, The Hebrew Republic, Harcourt, 2008 (available on Kindle)

Alexander Yakobson, Amnon Rubinstein.Israel and the Family of Nations: The Jewish Nation-

State and Human Rights,London: Routledge, 2008

34 What type of special relations can be maintained between Israel and Jews around the world without infringing Israels

democracy? When Israel funds Birthright, e.g., it uses tax money of non-Jewish citizens.

NIF Australia Briefing Document

Documents

Transcript of NIF Australia Briefing Document