Israeli West Bank barrier

Part 1 of this post discussed the critical change in Israel’s constitutional development represented by the development of the Basic Law: The Nation in Israel, its enactment in July 2018, and a twin bill – which remains a bill – permitting override of rights contained in Basic Law: Human Dignity and Liberty without the need to satisfy the test set out in the limitations clause of the latter law.

In this post, I wish to address the gap between the discussion of constitutional changes in Israel and the elephant in the room—the occupation. A symposium on “Constitutional Capture in Israel?” which was published on the I-CONNnect blog and raised serious questions about democracy in Israel, hardly addressed the issue of occupation. One exception was the post of Gila Stoppler, which related to Israel’s rule in the occupied territories as one of the illiberal features that characterise constitutionalism in Israel as “semi-liberal,” contributing to a serious weakening of its democratic-liberal foundations. This view, and particularly its absence from the rest of the discussion, invites wider attention to the separation of the discussion on Israeli constitutional law and democracy in Israel on the one hand, from discussion on the status of the occupied territories and the law that applies to them on the other.

The basis of this distinction is the view of the Israeli constitutional regime as a democratic regime that, according to certain authors, is today in crisis or in “constitutional retrogression,” as Gila Stoppler, Alon Harel, and Nadiv Mordechai and Yaniv Roznai argued in the symposium on this topic. Most of this discussion, however, takes as its starting point that this is a liberal democracy in crisis. By separating this discussion from that on the occupation, the constitutional regime in Israel can be approached as liberal and democratic (even if in crisis) or, at the very least, as what Stoppler called “semi-liberal constitutionalism”—a constitutionalism that is not unequivocally committed to liberal democratic principles. The regime in the territories, which is definitely neither liberal nor democratic, is thus perceived as something beyond the borders of Israeli constitutionalism and as a temporary problem that deserves to be discussed separately from that of constitutionalism or of constitutional or democratic retrogression in Israel.

Several writers have criticised this separation between the question of democracy in Israel and the question of the occupation. Among them is Oren Yiftahel, who pointed out that the division of “Israel within the Green Line” from the “Occupied Territories” beyond it, is unsustainable, arguing that the analysis should focus on the Israeli regime on both sides of the Green Line as one whole. This analysis led Yiftahel to describe this regime as an “ethnocracy” rather than a democracy. A sober analysis of Israeli constitutional law requires that the question of constitutional democracy (including its existence or retrogression) and the question of the regime in the Occupied Territories be considered together, despite the different legal regimes, as it were, on the two sides of the Green Line. In fact, only the absolute separation between these questions could lead to an analysis that describes the regime in Israel as a liberal democracy and rejects claims about constitutional retrogression—the view that Barak Medina, Iddo Porat and Ruth Gavison adopted in the symposium on the subject.

This analysis is warranted due to the increasing mutual connections (which I cannot enter into here) between the legal regimes on the two sides of the Green Line, both because of the prolonged occupation that has long ceased being “temporary” and because of the partial de facto annexation coming about in the territories. Any consideration of the Israeli rule on both sides of the Green Line as one integrated whole raises doubts about the very description of Israel as a democracy, given that even the most basic foundation of the subjects’ agreement, as conveyed through elections, is lacking in this case.

Basic Law: The Nation and the override clause, clarify the need for a discussion that breaks down the artificial division between the two sides of the Green Line. This division collapsed with the persistence of the occupation and with the settlements that have turned the occupied territories into a territorial, personal, and legal “continuation” of Israel, both inside and outside. In light of the growing political will to annex the territories or at least part of them, the need for Basic Law: The Nation and for the override clause becomes clear: they can confer constitutional legitimacy on what is hard to condone today.

The Jewish Settlement Section in Basic Law: The Nation (Section 7, provides: “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening”) could, at first glance, appear as intended to circumvent a ruling such as in Kaadan, which forbade discrimination against Arab citizens in their access to state laws (a matter of “internal” constitutional law). In fact, however, it could serve to legitimise the takeover of private Palestinian lands in the territories and to justify this as required by Section 1 of this law, which emphasises that the Land of Israel (and not the State of Israel) is the historical homeland of the Jewish people. In this bleak scenario, the law could legitimize a different civic status from that of Israeli citizens for the inhabitants of the annexed area. The override clause is meant to validate similar legislation. Basic Law: The Nation and the override clause are important, for example, to preserve legislation that denies rights to Palestinians. One example, whose constitutionality is currently challenged in the Supreme Court, is the so-called Regulation Bill that seeks to legitimise the taking of private Palestinian lands for Jewish settlements.

In November 2011, in an article entitled The Necessary Elimination of Israeli Democracy, Amos Schocken pointed to the existence of two population groups in one region—one  enjoying all the rights and protections and another deprived of rights and ruled by the first or, in his terms, an Israeli apartheid regime. Such a regime necessitates that illegal activities be made legal, and various bills and attacks against the Supreme Court must be understood in this light. Recent developments attest to the accuracy of Schocken’s forecast. Basic Law: The Nation is already with us and the override clause continually hovers as a threat. Its power as a threat to be made good on should the Court “go too far,” particularly now when the constitutionality of the Regulation Bill is under discussion, is just as strong as the one this law could wield if and when it does become a Basic Law.

In the past, it was thought that the recent wave of anti-democratic legislation (with the legislation discussed in this post being of the strongest examples) would come forth in laws that would be merely declarative and would not change reality. In fact, however, the implications of this type of legislation are already evident, and they are wider than expected. Thus, for example, in a ruling in the Jerusalem District Court, Judge Drori granted compensation to victims of a terrorist attack claiming that the Section in Basic Law: The Nation — “the State shall strive to ensure the safety of members of the Jewish People”— justifies punitive damages when Jews are harmed. This law, in his view, is not merely declarative, a claim that illustrates the implementation of this law beyond the original expectations. This understanding of the law contradicts previous rulings on the duty of equality for all even though, obviously, this duty was often breached.

Implementing the law in this fashion must serve as a warning sign regarding expected applications of the override clause and of Basic Law: The Nation. These two legislative amendments, then, are necessary to protect the legislation and the practices that deepen the entrenchment of the occupation regime, beside new forms of it as described by Schocken, further demonstrating the impossibility of discussions on democratic or constitutional retrogression while divorcing them from the question of occupation. Note that, although the crucial element driving the “override clause” emerged in the context of dealing with asylum seekers, this context too is one dealing with the preservation, exclusivity, and supremacy of the Jewish majority in Israel. In any event, should this clause be enacted, further developments can probably be expected in the occupation context as, for example, in regard to the Regulation Bill and other arrangements.

The proposed override clause together with Basic Law: The Nation could lead to a two-headed creature that makes all forms of discrimination and dispossession constitutionally legitimate. It is against this background that we should understand the “earthquake” warning of Minister of Justice, Ayelet Shaked, should the Supreme Court invalidate constitutional moves such as the Basic Law or the override clause.

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