Know comment: Livni’s lamentable lawlessness

By
November 27, 2014 22:47

Livni shamelessly fulminated this week the lie that the proposed basic law is rooted in “radical nationalism” and sponsored by “extremist elements of the right wing.”




Tzipi Livni

Tzipi Livni. (photo credit:MARC ISRAEL SELLEM/THE JERUSALEM POST)

Hypocritical and hysterical – there is no other way to describe the rhetoric thrown around this week by Justice Minister Tzipi Livni in opposition to the government’s plans to pass a basic law on Israel’s status as the Jewish nation-state.

According to Livni, the proposed law “harms democracy and would subject the Israeli population to a theocracy.” It would drive Israel “backwards” to a “fundamentalist and discriminatory reality.”

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I can only chalk up such hyperbolic drivel to Livni’s increasingly desperate search for political relevancy. The polls shows that Hatnua, which is essentially a one-woman party, would probably be wiped off the map were elections to be held now.

Livni’s fanatic ravings about the Jewish Nation State bill – which have little basis in reality – are clearly meant to reclaim some Leftist leadership role for herself.

After all, what else does Livni have to say for herself? The peace process with the Palestinians, which she championed and led, crashed unceremoniously and violently. (Livni, of course, haughtily rejects any responsibility for that disaster.) So now she’s running up a different flagpole.

Livni to the rescue of Israeli democracy. Hallelujah.

There is much hypocrisy here, because it was Livni’s colleagues in Kadima, when she led that party, who first introduced into the Knesset the “Basic Law: Israel as the Nation State of the Jewish People.” MK Avi Dichter tabled it in August 2011, and it was co-sponsored by 40 MKs, including twothirds of Kadima and several members of the Labor Party. Signed on to Dichter’s bill were MKs considered “moderate” such as Einat Wilf, Eli Aflalo, Meir Sheetrit, Nahman Shai, Otniel Schneller, Ronnie Bar-On, Ronit Tirosh, Shai Hermesh, Shaul Mofaz, Ya’acov Edri, Yisrael Hasson and Ze’ev Bielski.

Funny that some of the paragons of democracy who supported Dichter’s bill (like Sheetrit and Shai) are now are in the forefront of calling the very notion of a Nation State bill “dangerous.”

Their political hypocrisy screams to the heavens, especially since Dichter’s legislation was more categorical and constitutionally far-reaching than the soft version now being promoted by Prime Minister Benjamin Netanyahu.

Yet Livni shamelessly fulminated this week the lie that the proposed basic law is rooted in “radical nationalism” and sponsored by “extremist elements of the right wing.”

Livni is signed onto the government’s coalition agreement, which stipulated that a basic law on this matter be passed. The bill was watered down in negotiation between Yesh Atid and Bayit Yehudi to eliminate the issue of language and that of Jewish settlement, and to add provisions reinforcing Israel’s commitment to personal rights of all citizens and a specific reference to the Declaration of Independence. (Again, this is in the coalition agreement which Livni signed.) Yet suddenly and so very urgently, blocking this law has become the raison d’etre of Livni’s political career and the most important defense of democracy known to mankind. Otherwise the “barbarians of medievalism” in the Likud, Bayit Yehudi and Yisrael Beytenu might “destroy” Israel with their retrograde and impure visions of reinforced Jewish sovereignty.

Well, enough of Tzipi Livni’s execrations. I’ll grant that there are legitimate objections to some aspects of the bill, or to the draft in its entirety, but none of these differences of opinion justify Livni’s self-serving antics or inflammatory rhetoric.

LET’S REMIND ourselves why this law is at all necessary, and consider whether it has any chance of achieving its direct and implied goals.

As has been pointed out by the Kohelet Forum, which provided research backing for the Nation State bill, the 1992 basic law on “Human Dignity and Liberty” passed the Knesset in the middle of the night, as a private members bill.

It passed with an underwhelming minority of votes: 32 in favor and 21 opposed.

But that didn’t stop the Aharon Barak-led Supreme Court from transforming the law into a central pillar of Israeli jurisprudence. Since 1993, the court has maximized use of “Human Dignity and Liberty” to rule on the constitutionality of a variety of statutes and government policies involving the state’s Jewish character.

These include laws regarding allocation of Keren Kayemeth LeIsrael-Jewish National Fund land, the primacy of Hebrew as Israel’s language, rights to residency and citizenship, draft deferments and stipends of yeshiva students, commerce on Shabbat, and immigration/deportation.

In principle, these cases called for delicate balance between Israel’s democratic character and its Jewish character. But no such balance was achieved, precisely because Israel’s Jewish character, unlike its democratic character, is not anchored in any basic law. The proposed Basic Law: Israel as the Nation State of the Jewish People is intended to address this asymmetry and to encourage a more sophisticated legal discourse regarding the tension between universal and national/Jewish considerations.

It’s true that Israel’s Jewish character is referenced several times in the Declaration of Independence, but so are the many liberal rights later enshrined in a concrete Basic Law on Human Dignity and Liberty.

That’s why they were codified into law; only laws can be used by the courts to adjudicate cases.

It’s time to enshrine our Jewish and national values in a basic law, too. This is especially true since the state’s identification with Jewish nationhood is under attack from Israeli Arabs, Palestinians, and post-Zionist and anti-Jewish Jews.

The infamous Arab Higher Coordinating Committee “vision document” of 2007 demanded an end to Israel’s Jewish national identity, and declared Israeli Arabs to be an “indigenous minority” with autonomous national rights. Mahmoud Abbas’s refusal to recognize Israel as the national homeland of the Jewish People is partially an extension of this, as well.

DOES THE BILL, if passed, stand a chance of achieving its goals? Regrettably, I am doubtful.

First, the provisions within the bill have been so thinned out in the course of the political debate that all that’s left is declaratory. Perhaps that’s fine and good for international diplomacy over the long term, but still insufficient.

It’s hard to see how the version of the basic law being proposed by Netanyahu will have any concrete impact on Supreme Court decision-making, certainly not until the composition of the court changes dramatically.

Because the law has been diluted and denuded of specificity, I don’t believe that the court will find itself constitutionally circumscribed by this law in any practical way. No one has yet found a way to halt the court’s vast, unilateral expansion of its authority in matters of ideology and morality.

Second, because the debate over the bill has become so partisan and antagonistic, the damage done to Israel’s global reputation in the course of it may outweigh any concrete benefit.

As long as there are insincere figures like Tzipi Livni barking out defamatory iniquities about Israel, international perceptions of Israel as legitimately democratic and inherently Jewish can only be weakened.

www.davidmweinberg.com


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