Tuesday, December 14, 2004
Michel Warschawski: Israeli Democracy
by Michel Warschawski; December 12, 2004
During the last three years we have seen many signs that the most basic democratic norms are disappearing. Arabs suspected of links with terrorism have had their Israeli citizenship taken away. Arab MKs have been stripped of their parliamentary immunity. Openly racist opinions, political programs and bills-particularly projects for ethnic cleansing of the occupied territories and of Israel itself-have gained legitimacy. This development could take place quickly, without leading to a major crisis, because Israel has always had an idiosyncratic conception of democracy. Democracy for Israelis has always been restricted to two things: predominance of the majority over the minority by means of elections and the acts of the executive branch being based on laws adopted by a parliamentary majority (AIC Special Reports, winter 1986). This is obviously a rather meager conception of democracy, which completely neglects the concept of rights. Contrary to what has often been claimed, the fact that Israel has never had a constitution is not the sole responsibility of the religious parties. The real reason is that Zionist politicians have never been capable of writing a real democratic constitution, guaranteeing equality of all citizens and fundamental rights independent of the will of the majority.
Fifty years after independence, the behavior of the State of Israel and its political class still reveals a certain slippage between the state, the ruling parties and the politicians, and between a binding legal framework and interests that cannot be contained in that framework. Corruption is one example, of course. But there are also political and military practices that violate the law but the executive branch considers necessary, such as the use of torture and extrajudicial executions. The State of Israel resorts to two mechanisms to finesse these contradictions. The first is outright denial, which leads to veritable schizophrenia. We have witnessed this mechanism at work in the intelligence services, police, and public prosecutors' systematic lies about the use of torture; their lies in court ultimately led to a serious institutional crisis and the formation of a national commission of inquiry. Another example: denying the existence of the Israeli nuclear arsenal has prevented establishing safeguards. According to international experts this has resulted in many technical incidents and made Israeli reactors the most dangerous in the world after Chernobyl-type reactors. The second mechanism is the use of personalized legislation. What happens if the law (in fact a "fundamental law") requires that candidates for the post of prime minister be members of the Knesset, but Benjamin Netanyahu, who wants to run, is not in the Knesset?* The fundamental law is amended so that Netanyahu can run. Another example: a former minister is in jail for corruption, a big campaign is waged for his release, and a law is adopted allowing certain prisoners to be released after serving half their sentences. Another: a fundamental law limits the size of the government to seventeen ministers, but Ehud Barak, in order to have the broadest possible coalition, has promised cabinet posts to about thirty politicians, and the fundamental law is changed. Since laws-including laws with a constitutional character-can be changed to satisfy individual interests or the needs of the moment, why not just skip the process of lawmaking altogether? Shaul Mofaz, former head of the army high command, announced his candidacy for the Knesset last year although the "cooling-off period" required by law between his retirement and the elections had not yet expired. Mofaz's argument before the Electoral Commission was almost refreshingly straightforward: if he had been paying attention, changing the law would have been no problem. The only reason the law wasn't changed was pure forgetfulness. So let's pretend it has been and stop wasting time. ………….
The flexibility of laws is one corollary of the absence of a concept of rights in Israeli democracy. Even when rights are mentioned explicitly, as in the fundamental laws adopted during the years of the liberal interval, they are always conditional: "provided that no law exists to the contrary," or "except in case of emergency," or "if this does not contradict the Jewish character of the State of Israel." In short, fundamental rights exist-like the principles of gender equality and equality between citizens of different faiths-unless the parliament has decided democratically, that is, by a simple parliamentary majority, to infringe them. In Israel, no one has any rights just by being a citizen. ………………
When a country has created borders that it has continually expanded in violation of every rule of international law; when the end, that is, the Jewish state, always justifies the means; then it should be no surprise that respecting Israel's own rules turns out to be terribly difficult. Ordinary citizens follow the example of their leaders, who apply at home the same lack of rules that they have applied systematically in international relations. The impunity that Israel enjoys within the international community is not only a denial of justice to the victims of its permanent aggression; it is also one reason for the internal degeneration of Israeli society.