Ruth Gavison: Loyalty declaration bill is bad legislation

Hebrew University law professor Ruth Gavison, an outspoken supporter of characterizing Israel as a Jewish and democratic state, told The Jerusalem Post in an exclusive interview Wednesday that she was opposed to the loyalty oath bill approved in the cabinet earlier this week.

“It is possible to unequivocally support [the characterization of] Israel as a Jewish and democratic state, as I do, and still think that this bill, at this time, in this fashion and in this context, is a bad move,” she said.

One of the things wrong with the bill – which calls on non- Jewish new immigrants to declare loyalty to the State of Israel as a Jewish and democratic state – is that it has been removed from the wider context of which it is an integral part, she charged.

The declaration of allegiance to Israel as a Jewish and democratic state by new immigrants not coming under the Law of Return is not an isolated matter, Gavison continued.

“There are two possibilities. One is that we enact a comprehensive arrangement dealing with all the aspects of immigration policy. In that case we must deal with many general legal provisions according to basic principles. If we do that, then it could be that within the context of a reexamination of the entire immigration issue, including the way people obtain citizenship according to the Law of Return and other such matters, we could consider this matter [i.e., a new declaration of allegiance] as well,” she said.

“Another option is to establish a complete constitution. If we established a complete constitution which defined Israel as a Jewish and democratic state, and provided very strong guarantees to the democratic character of the state and its equality, we could consider a declaration by all immigrants which would express loyalty to the state and its constitution,” she continued. “This is quite common, and within the constitution there would be a declaration that Israel is a Jewish and democratic state. There is no problem with the substance of the [new] wording [declaring that Israel is a Jewish and democratic state], but there is a very serious problem with the form and context.”

Israel already characterized as a Jewish and democratic state

Gavison noted that Israel was already defined as a Jewish and democratic state in the constitutional legislation approved in 1992, Basic Law: Human Freedom and Dignity, and Basic Law: Freedom of Occupation. Not only is the wording not new, but the public debate over the wording is not new, either, and it goes far beyond the question of a declaration of loyalty by non-Jewish newcomers.

“This debate exists in the background of Israeli life and in the public debate here, and there is broad agreement among Jews about it,” said Gavison. “Thus, for example, the concept has been introduced into the educational system. It is true that not everyone agrees with this definition. It is true that part of the Israeli Arab leadership, and some others as well, claim that a Jewish state cannot be a democracy, and advocate deleting the ‘Jewish’ part from the description of the state. But this definition is not being proposed now for the first time. It already exists as part of the characterization of the State of Israel, in its laws and its ethos, and in the understanding of most of the people who live here.”

Because the definition of Israel as a Jewish and democratic state already exists in law and in the understanding of most Israelis, the new bill’s only practical innovation is that some people – that is, non-Jewish immigrants to Israel – will have to explicitly declare their loyalty to the State of Israel as a Jewish and democratic state. This change, however, will not put an end to the ongoing debate that has existed for years among the country’s native-born citizens, to whom the bill will not apply.

“You can’t put an end to a public debate by a law of this sort or a declaration of loyalty,” said Gavison. “You have to conduct the debate and if you have a majority – which you do – you should adopt steps necessary to build Israel as a Jewish and democratic state. You must then take action to strengthen both the Jewish and the democratic aspects and, above all, the fusion between them by explaining what is involved in such a state, explaining why it does not entail or allow discrimination against non-Jews. In this way you can explain why the identity of Israel is not in fact against the Arab minority living in the state.”

The law's limitations

Furthermore, argued Gavison, the effectiveness of the law regarding those that will be obliged to make the declaration is also limited.

“We don’t exactly know what that loyalty means,” she explained. “Those who make it will always be able to argue afterward that loyalty to the Jewish and democratic state requires fighting to strengthen the democratic component at the expense of the Jewish one. Thus, I, the Arab citizen or the non-Jewish citizen, or even the Jewish citizen who became an Israeli citizen and declared loyalty to Israel as a Jewish and democratic state, believe that the balance within Israel between the Jewish and the democratic is not good, and I am fighting politically to change it.”

The only thing that such a person will not be able to claim as a result of this declaration is that the state cannot in principle be both Jewish and democratic. As mentioned before, this may be a part of the declaration, even in the present formulation.

Another problem with the legislation is its context, Gavison continued.

“The bill comes and is presented not as an amendment to immigration policy but as a correction to the general tension between loyalty to the state and the national ambitions of Arabs. The feeling that this is a part of a process of de-legitimating the views of Israeli Arabs is widely felt among Arabs and people on the Left. Not enough was done to calm these fears. When the law demanding that new immigrants declare that they will be loyal to the “Jewish and democratic state” comes with laws against public finances for events marking the nakba, and with frequent allegations that the Arab minority is “not loyal” one does get the impression that this is an orchestrated move to exclude all Arabs from symbolic membership in Israel’s political community. This is both wrong and extremely unwise. When with a list of other legislation, such as the Nakba bill and others…I have the feeling that there is some sort of systematic and consistent attempt to restrict the Israeli Arabs on the symbolic level. That is, to say to them, ‘look here, you are not loyal,’” she asserted.

“At the same time, it is not wise or right to say that the proposal is fascist or anti-democratic. It is not. And the terms of the reaction make their own contribution to the difficulty to discuss the law and its meaning in an informed way,” she said. “The law may be an indication of an undesirable process, but the labels of ‘antidemocratic’ and ‘fascist’ are not helpful.”

Persuasive proof that one could be a firm believer in Israel as a Jewish and democratic state and a proud Israeli nationalist, and still oppose the bill, could be seen in the fact that three Likud ministers – Bennie Begin, Dan Meridor and Michael Eitan – all voted against it, said Gavison.

“They thought this was simply a wrong measure in terms of relations within Israel and its image abroad,” she said. “It had nothing to do with whether they believe, support and wish to advance Israel as a Jewish and democratic state.”