However, Netanyahu's recent actions only brought to the surface long simmering issues, glossed over during the State of Israel's 70 year history. Regardless of the Hasbara cliche'', "the only democracy in the Middle-east", Israel has never recognized equality as a fundamental principle in its legal system.
The Israeli Declaration of Independence was not based the presumption, originating in Plato's "Republic", that free and equal people institute a regime. Such principles are the presumptions of the US Declaration of Independence (1776) : " We hold these truths to be self-evident, that all men are created equal... That to secure these rights, Governments are instituted among Men..." The same principles are the presumptions of the French Revolution's Declaration of Civil and Human Rights (1789): "Men are born and remain free and equal in rights... The aim of all political association is the preservation of the natural and imprescriptible rights of man..."
In contrast, the Israeli Declaration of Independence (1948) is based on the presumption that nations have the natural right of sovereignty, and the Jewish nation has the natural and historical right for sovereignty in the Land of Israel, which was recognized in the UN Partition Resolution (1947). The Declaration then continues to declare that "the State of Israel... would provide its citizens complete social and political equality with no distinction based on religion, race, or gender..."
However, regardless of early promises, the State of Israel remains unique in the fact that during its 70 years of independence it has never accomplished the drafting of a constitution. The reason was the inability to form a wide consensus even regarding constitutional principles, such as equality.
In 1992, the Israeli Knesset finally passed the "Basic Law - Human Dignity and Liberty". However, contrary to early drafts, the final law omitted any mention of equality, since it would have prevented the law from passing...
Consequently, then Supreme Court Presiding Justice Aharon Barak announced a "Constitutional Revolution", claiming that the new Basic Law was the first article of a constitution, although only one quarter of the Knesset voted for such law. [ii] Barak's "Constitutional Revolution" appeared to be driven by the desire to create the authority to strike down further acts of Knesset as "unconstitutional", similar to Justice John Marshall's Marbury v. Madison decision (1803). The Supreme Court's authority to strike down acts of Knesset is strongly opposed by the Netanyahu's government and its Knesset coalition.
Given the circumstances of enactment of the "Basic Law", Barak's notion of a "Constitutional Revolution" was also ridiculed by Richard Posner as judicial piracy. [iii]
In the years 1992-2018, within such framework, the Israeli Supreme Court repeatedly ruled that there was no "constitutional, supra-statutory" standing for equality in the State of Israel, and such state of affairs is not the outcome of an "error of omission", but the result of lack of political agreement" [iv]
In June 2018, Arab Members of Knesset tried to place on the agenda discussion and preliminary vote on "Basic Law - State of All Its Citizens", which would have effectively declared that the State of Israel was a "Republic". In a unique decision, the Knesset's Rules Committee decided to prohibit placing such bill on the agenda...
Then, in July 2018, alt-right members of Knesset, with Netanyahu's blessing, placed on the agenda the "Basic Law -- Nation-State" which passed by a 62:55 vote (in a Knesset of 120), effectively enacting inequality and Jewish supremacy as a "constitutional, supra-statutory" principle. The authors of the law explicitly stated that its intention was to subdue the Supreme Court's rulings in favor of Arab Israeli citizens and Palestinians. The law was immediately denounced by the opposition as "racist" and "apartheid law". [v]
In a surprise reaction, the public, which generally is ignorant and apathetic, focusing mostly on security and fake security concerns, woke up, and first of their kind, large demonstrations merged unlikely partners, such as mainstream Jewish groups with Arabs, Druz e and LGBT" [vi]
In parallel, Druze members of Knesset filed a petition in the Supreme Court, claiming that the new Basic Law is "unconstitutional". [vii] The notion that one article of the presumed piecemeal constitution could be struck down as "unconstitutional" relative to another, is surely going to get the Supreme Court into a conundrum" However, such petition ha s slim chance of getting anywhere, since it is based on the notion of a "constitutional, supra-statutory" principle of e quality. Furthermore, as explicitly stated by Supreme Court Presiding Justice Esther Hayut, the Court is currently "under assault", and the Court is unlikely to risk any further confrontation with the Netanyahu government. [viii]
Always in the background is the current government's intention to further the complete annexation of Palestine. However, such move would endanger the Jewish majority in the State of Israel. The new "Basic Law -- Nation-state" is perceived as the first step towards a complete apartheid regime, which would enable the annexation. [ix]
Regardless of repeat announcements of "Deal of the Century", the Trump administration and in particular US Ambassador to Israel David Friedman are widely perceived as supportive of such intent by the Netanyahu government. [x,xi,xii,xiii]
LINKS
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
