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Page
A:
An historic opportunity
B:
C:
D:
F:
G:
H:
J:
10
K:
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)1
to
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.
An independent policy planning think tank founded by the Jewish Agency in 2002 and based in Jerusalem.
Page 2 of 12
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.
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.
In
1917,
the
British
Foreign
Secretary,
Lord
Balfour,
wrote
to
Baron
Rothschild
that
the
British
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
the
entire
Jewish
people.
UN
General
Assembly
Resolution
181
thus
reflected
Wilsonian
Page 3 of 12
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
19482
asserted
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
not
have
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
Knesset
by
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
and
Liberty
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.)
Page 4 of 12
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
of
Fundamental
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.
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).
Page 5 of 12
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
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,
Piskey
Din
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
be
further
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;
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
8
This
seems
to
be
the
sense
in
which
a
Jewish
state
came
to
be
recognised
in
modern
international
law:
see
section
C
above.
The Australian Constitution, e.g., provides the Commonwealth may make no law establishing any religion, requiring
any religious observance, or prohibiting the free exercise of religion and that no religious test shall be required as a
qualification 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.)
Page 6 of 12
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.
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
combines
the
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
ethnocracy
supposedly
does.
It
differs
also
from
a
Herrenvolk
democracy
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.
1
January
2011
(http://hebrewjudaic.as.nyu.edu/docs/IO/4662/PeledPaperERS.pdf
)
Page 7 of 12
G:
The
population
of
Israel
today
1.
2.
73%
of
the
Jews
were
born
in
Israel
and
38.6%
of
them
are
second
generation
or
more
Israelis.11
3.
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
democratic
character
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
as a
person
who
was
born
of
a
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
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.
11
Page 8 of 12
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
17
18
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?
The
main
international
convention
against
discrimination,
the
1965
Convention
on
the
Elimination
of
all
Forms
of
Racial
Discrimination,
exempts
state
laws
on
immigration,
nationality
or
citizenship
from
its
general
principle
of
non-
discrimination
so
long
as
they
do
not
discriminate
against
any
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.
The
state
has
also
recently
given
limited
official
recognition
to
some
rabbis
from
other
streams
of
Judaism,
a
move
welcomed
by
some
in
those
streams
but
less
welcome
to
those
who
would
like
to
see
clearer
separation
between
the
state
and
religion.
Page 9 of 12
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,
where
close
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-Jewish
citizens.
19
See
e.g.
Policy
Paper
No.51
in
2004
from
the
Israel
Democracy
Institute.
http://www.haaretz.com/jewish-world/poll-fewer-than-half-of-israelis-see-themselves-as-secular-1.313462
and
http://www1.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab=st07_06x&CYear=2013
21
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.
20
Page 10 of 12
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
large
scale
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
Jewish
state
(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
Haaretz
Yair
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#
27
Page 11 of 12
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?
29
2.1
2.2
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
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
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
an
essential
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,
which
some
describe
as
post-Zionist)
seek
to
curb
its
power
and
to
ensure
the
appointment
of
judges
who
share
their
political
views.
Page 12 of 12
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
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.