Many on the Israeli left like to quote a statement by Ahmed Tibi, a longstanding Israeli lawmaker who is also among the 20 percent of Israeli citizens who are Palestinian: “The State of Israel is Jewish and democratic: democratic for Jews, and Jewish for Arabs.” I have often quoted it myself, never quite comfortably, because it’s not accurate. A Jewish state is not truly democratic: neither for Arabs nor for Jews. Democracy depends on the rule of law, and the rule of law depends on complete civil equality, as well as on subjecting everyone—including the sovereign government—to the same law. In democracies, where The People—not a king—is the sovereign, the rule of law thus depends on the principle that the state equally belongs to all its citizens: The People are the sovereign, and defined as the set of all citizens. In Israel, where ‘The People’ designates Jews rather than citizens as such, this principle is not just violated; there’s consensus, at least among Jewish citizens, that it is illegitimate.
Today many of those Jewish citizens are fighting to defend the courts, the rule of law and the separation of powers from assault by a new Israeli government. The battle makes headlines the world over as a fight to save democracy. But we tend to forget that Jewish Israelis have always opposed the rule of law in its genuine significance. The law in Israel never truly ruled over the People’s will. In the state of the Jewish People, the people rule, and use the law to ensure their will—to uphold Jewish sovereignty rather than the sovereignty of the country’s citizens and inhabitants.
Here lies the heart of the issue. When the sovereign can use the law as a tool, the rule of law becomes an empty shell, and the human and civil rights of everyone—Palestinians, Jews, minority, or majority—are in danger. So it is that the newly elected government actually seems to express the people’s will: they want to deepen their rule as more and more Jewish and less democratic, over a population that is partly Jewish and partly Palestinian. (The Palestinian part is about half, if you count, as we should, those in the West Bank, who are controlled by Jerusalem.) The laws and the principles that were originally intended to ensure Jewish-above-citizen’s sovereignty now allow the government to pursue this anti-democratic trend, such that, at this point, “even” the rights of Jews stand to be jeopardized. It has never been clearer that the human and civil rights of Jews and Palestinians are necessarily interdependent. A democratic alternative to the current coalition will only emerge if we form a Jewish-Palestinian solidarity that will be based on this insight, and promote full civil partnership in the state of all its citizens.
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The deepest threat to this kind of partnership is not the current coalition’s “reform plan,” which in fact aims to release the government from the authority of the courts. It is Section 7a of “Basic Law: Knesset,” which prohibits the participation in elections of candidates who deny the “existence of the State of Israel as a Jewish and democratic state.” On first look, the spirit behind this law is the principle of “militant democracy,” formulated in the aftermath of the Weimar Republic, stating that democracy’s enemies must be prevented from using elections to abolish the sovereignty of the citizens—as is well known, the Nazis came to power democratically. Israel at first seems to have adopted the same principle and only extended it to protect not just democracy but the state’s Jewish identity as well. On closer examination, however, the country has actually implemented the exact opposite lesson from the one that democracies learnt from Weimar: the Israeli version of the law is not intended to protect the sovereignty of citizens from the will of the people, but the will of the people from the sovereignty of the citizens. And as if we have not learnt anything from history, we are now surprised when the golem that is called “the will of the people” rises not only against the Palestinians, but also against its creator.
Facing this situation, Justice Esther Hayut, the President of Israel’s Supreme Court, went out of her way to courageously defend the courts. In an unprecedented speech, she warned that if this government’s “reforms” will be implemented, “the country’s democratic identity will be fatally damaged… anyone who claims that the majority chose its representatives and wrote them an ‘blank check’—bears the name of democracy in vain.” No doubt, Hayut speaks out of sincere anxiety for the future of our country, but she should be advised to examine herself, too, when speaking in the name of democracy. Just a few weeks ago, as Supreme Court President she used clause 7a to criticize the participation of a Palestinian-Israeli party ‘Balad’, in Israel’s elections. Whereas Hayut eventually did allow the party to run, she said—in fact, threatened—that the party’s participation in future elections is anything but ensured, since it has dared promoting a bill supporting Israel as a ‘state of all its citizens’. According to the Supreme Court, a party’s willingness to uphold a fundamental principle of the rule of law—not the opposition to this principle—constitutes “gravely serious evidence” against it, and may lead to its disqualification.
It is not surprising that a court that used the law to prevent the sovereignty of all citizens as such permitted, in the same breath, the running of ‘Jewish Power,’ a party that is safely labeled as fascist: it calls on its platform for a “total war” against the “enemies of Israel”—meaning the inhabitants and citizens of the country who do not belong to the Jewish People. In this Weimarean farce, the court has been cast as the tragic hero. After joining hands with the Knesset and using a principle such as 7a; after being willing to use the courts to defend the will of the people from the fact that a democracy must belong to all citizens regardless of religion or ethnicity, they woke up one day and discovered that the people has chosen to crush the courts entirely, as part of their war against their “enemies.”
And the opposition? When its leaders still headed the country, they took pride in the fact that they knew how to put political differences aside in order to uphold the rule of law. Former Prime Minister Naftali Bennett explained the rationale in a now-familiar New York Times article, calling it “A Good Will Government”—one that agreed to put the controversial Palestinian issue aside in order to defend Israeli democracy from the prospect of Netanyahu’s return. But it should have been clear from the start that the idea that Israeli democracy can be defended by simply ignoring the main offense against it—the fact that it relegates Palestinian citizens to second-class citizenship and holds three million Palestinians under occupation devoid of citizen and human rights—was not a government of good will but of bad faith. The credibility of their claim to defend the rule of law has to be evaluated by the law the blew the coalition apart.
For decades, Israel has applied its civil law, tax system, social security and universal health insurance to Jews (and Jews only) living in the West Bank, not through official annexation but through “emergency regulations” that automatically expire and require periodical renewal. It’s a legal trick, really, designed to de facto annex the West Bank without offering the Palestinians citizenship while resisting the official labeling of apartheid. When Israeli-Palestinian members of this coalition refused to provide the necessary votes to renew these regulations, the coalition chose to dissolve itself in order to ensure their continuity: once the government became interim only, all regulations were automatically kept rather than dissolved—until the election of the new government, which would have no difficulty renewing them.
In other words, the sovereignty of the Jewish People is the supreme principle. When the “good will” coalition had to choose between civil partnership with Palestinian-Israeli lawmakers who support a democratic rule of law and committing political suicide to ensure its absence, they chose, to no one’s surprise, the second option. Like the Supreme Court Justices, they forgot that citizen’s sovereignty and full equality are not a danger to democracy but in fact its fundamental principle. In its absence, the rights of none of us will be protected.
In order to oppose the coup instigated by Prime Minister Benjamin Netanyahu’s coalition, we will have to think and act exactly the opposite of the opposition leaders. The massive protests in Israel are welcome and important, but they will only bear fruit if they will lead to serious soul-searching: to a brave recognition that what has been cannot continue, that our fundamental political assumptions must change; that the constitutional crisis threatening the country does not contradict its Jewish and democratic identity but arises from it. The protests will only be successful if they give birth to a new party or movement, which will allow, at least to parts of the Israeli public, to choose the path of civil partnership between Jews and Palestinians, and fight to create a rule of law in a state that belongs to its citizens, not to protect the political system that leads to its destruction.
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