On June 14, 2005, the Constitution, Law, and Justice Committee met to consider the issue of lands and settlement in the constitution, a topic which is among the most central and loaded topics in Jewish-Arab relations. The topic was examined through the prism of the Jewish-democratic dichotomy.
Lack of Arab attendance
In light of the political significance of the issue, the committee invited all of the Arab MKs in the Knesset and representatives of every Arab political and social organization with which the Committee has contact. Unfortunately, none of them arrived, Committee Chairman MK Michael Eitan pointed out, which left the committee with the problem that a room filled exclusively with Jews had to deal with a fundamentally Jewish-Arab question. The single Arab in the room, a representative of the Association for Civil Rights in Israel, was asked to represent the Arab view as well.
Overview
Senior Academic Advisor Professor Ruth Gavison opened the discussion by insisting that Israel has no intention of using any part of the definition “Jewish and Democratic” to justify discrimination. However, she said, we must judge carefully what constitutes discrimination and what does not. If we define discrimination as the different treatment of equals, the two central questions become, Who are the equals? And is discrimination between them appropriate? To get to our point: may we justifiably be non-color-blind in allocation of lands?
Criticism of Israel's land allocation policies (discrimination)
Dr. Oren Yiftachel of Ben Gurion University offered a critical summary of the land allocation status quo in Israel. He described three major aspects to the issue:
Constitutional protection of minorities and their collective rights,
A worldwide trend of multiculturalism and protection of collective rights,
And decentralization.
Yiftachel saw a global movement towards collective rights in international and domestic treaties since the 1970’s (many of which, Professor Gavison interrupted, were rejected or not ratified). There has also been academic work[1] showing that decentralization is the best way to protect minorities’ land rights. Yiftachel warned against preferring stability over minority rights, saying that controlling minorities brings short-term stability at the expense of the dissolution of the state in the long term. MK Azmi Bishara (Balad) joined him in citing several recent constitutions with strong protections of minority rights, including Macedonia’s and Canada’s.
Land distribution in Israel, Yiftachel said, is so central to the state that it must explicitly be controlled by the constitution. The Israel Lands Authority is a major government office and a large percentage of Israelis live in Jewish National Fund-acquired land. The questions this raises are not merely ideological, they are legal. A constitution which ignores these legal issues will be either useless or even dangerous on this count. Let us not protect the majority’s rights at the expense of the minority. The background document prepared for this meeting claimed that local councils and municipalities have a proportional if not disproportionately high number of Arab members; Yiftachel complained that this was as unfair a measure as saying that one person with three $20 bills and two $100 bills has the same wealth as someone with three $20 bills. You cannot restrict your measure that way. 80% of Israel is covered by regional councils, not local councils, and those are almost exclusively Jewish, with structural limitations preventing arabs from getting on de facto.
Dr. Alexander Kedar of Haifa University followed, stressing the symbolic and educational value of the constitution. What values, he asked, will we enshrine? Equality and coexistence or separation? His comparative study showed that most countries disallow discrimination in property, and urged the committee to avoid the separate but equal paradigm. Israel cannot afford to have the international community interpret its constitution as apartheid-like. He expressed a fear of any text that resembled the South African natives’ Land act, with separate provisions for Jewish and Non-Jewish land allocation, which could be construed as segregationist and discriminatory, even if it were unintentional or untrue. He was nervous about Gavison’s proposal “D. The State will develop its resources for the welfare of all its citizens. Allocations of land will respect the ways of life of insular communities.”
Allowing exclusive communities of all kinds
Committee Chairman MK Michael Eitan pointed out that these provisions are not meant only to allow exclusively Jewish or Arab communities; they are also about allowing Haredim (ultra-orthodox Jews) to live in a community composed of their own kind, so that no one will drive there on the Sabbath. Kedar reiterated his concern about how this could be misconstrued by the international community. Kedar framed it as a question of whether someone like him, middle class and Ashkenazi, could demand the right to live in a place free of the kinds of people he dislikes. While reality and a market economy may in practice prevent such mixing, he said, he does not (and MK Eitan agreed) want to shut the door to the possibility in the constitution. Kedar preferred to leave it out of the constitution altogether, saying we should accept the Ka’adan ruling (HC 6695/95 Ka’adan v. Katzir), even with its loopholes that prevent negative discrimination (e.g. “I refuse to live in a community with group X”) but might allow one to pursue living in a community specifically with group X. He pointed out that at present some 80% of Jewish communities in Israel are closed to Arabs.
Internal Arab refugees in Israel.
Kedar described a large group of people he called “internal refugees,” e.g. Israelis whose land was lost to them by means of various laws passed in the wake of 1948. We need to be courageous, he said, and find solutions for them. We needn’t think only of returning them to their original land, which is obviously problematic, but we might consider some reparations or a small amount of land restoration. Bedouins need special protection as well, as they have few papers, and often lose their lands to anti-squatters laws. MK Michael Eitan interrupted to ask him how long Bedouin might be living on a given piece of land at the time the government revoked their rights via anti-squatters laws. When Kedar offered that Bedouin who have been living on their land for more than 40 years are subject to this, MK Eitan fiercely responded that the anti-squatters law refers only to people who have lived on lands for less than 3 years. It is not a law that violates Bedouin rights, and exists largely to defend the public from future land seizures. He called Kedar’s analysis a popular misconception. Kedar responded simply that we should consider distributive justice as an important principle as we draft the constitution.
Jews and Arabs on the Land: An Historical Overview.
Dr. Arnon Golan, an historical geographer from Haifa University, prefaced his remarks by saying he would stay away from trying to establish the guidelines for absolute equality. Such attempts have often failed in this century, he said, and said he could not think of a state whose problems were solved by a constitution. Things get solved by a balance of powers on the ground. The major problems are not constitutional, they are problems of history and power. There ensued a short debate over the roots of Sri Lanka’s problems.
Israel’s lands issue, Golansaid, derives from the events of 1948. It is clear that our lands arrangement is imperfect, and that it has evolved and changed, by the powers of reality, over the past fifty years. Look for instance at Moshavim (cooperative communities). There were good laws about them, but the change in industry in the 60’s and the tough economy of the 80’s wiped them out. Would you have tried to solve this with a constitution? Nor can you use a constitution to solve the Arab-Jewish lands conflicts.
Golansaid he did not believe there are any real indigenous peoples in Israel. Jews and Arabs are equally indigenous. Furthermore, he pointed out, in countries where indigenous peoples are given special land rights – Maori in New Zealand, for example, or Native Americans in the United States – these lands are usually terrible. But, Yiftach-El interrupted, what would have happened to these groups without these “insufficient” protections? Golan could not say. Perhaps they would have emigrated individually, or maybe they would have assimilated. What would they have done? What should they have done? Golan did not know.
One important difference, Golan said, between Native Americans and Arabs is that Native Americans want largely to be Americans, whereas native Arabs don’t necessarily want to be Israeli. The identity threatens them, and we need to fight the discrimination that keeps Arabs from being full Israelis. Joining the army, he said, is one way outsider groups have acquired greater social standing, Golan suggested, and commented that citizens do not earn full rights without performing some duties as well. He considered that while the US gave special rights to veterans after World War II, giving special rights to Israeli veterans tends to be considered more of a problem. [That being said, the Israeli army is essentially Jewish].
Intentions, Goals, and Values
Dr. Daniel Polisar from the Shalem Center opined that there is a legal context and history to the protection of the land of the Jewish state. It wasn’t until March of 2000 that the Court overruled the Knesset with Katzir/Ka’adan. Will the Knesset succeed in returning to us the concept of the legitimacy of Jewish settlement? It has no choice, it must take back what the Court overruled in 2000. It would be better and more elegant if we could leave it out of the constitution, he said, but at this point the constitution must restore the principle of Jewish settlement, either directly or indirectly through the phrase “Discrete communities.”We would all prefer the current situation, Professor Gavison said, wherein society de facto separates Jews and Arabs, to a legal arrangement that does the same thing. And we needn’t be afraid of defending the interests of regular Jews who say we would like to live in a community that celebrates Israeli Independence Day, where the schools teach Jewish history and traditions. Ordinary people are often afraid of an influx of Arabs to the point where they demand the establishment of a mosque, an Arab-culture-oriented school, and undermine the Jewish character of the community which attracted most of its residents to begin with. MK Azmi Bishara (Balad) called the committee’s intentions an attempt to retain Jewish power. Your laws, he charged, are written to protect Jewish power and the Judaization of the land, they are written to get around equality. There is no reason not to return the lands of Arabs that were taken after 1948, he said, it represents no threat to Israel. Bishara continued, saying we keep talking about Jewish rights to establish a certain type of community. But do Arabs have that right? Do middle-class, educated Arabs have a right to establish a community of their own kind? Do any kind of Arabs have such a right? If our concern is for good relations between Israeli citizens, we need to stop thinking of the land as an ideological resource. We shouldn’t have a situation where Arabs and Jews can’t live together. We shouldn’t allow, at the constitutional level, exclusive Jewish or Arab settlements, and no one should be denied the option of living wherever he or she likes on the basis of their ethnicity. This should not be interpreted to be a rejection of collective rights, but we absolutely must not explicitly allow exclusive communities in Israel’s constitution. Professor Kedar added that no country in the world constitutional protects some rights, and urged the committee not to make Israel the first. Professor Yiftachel recommended using the constitution as an opportunity to make peace, create civic feeling and real citizenship. Regional communities are important, he allowed, but anchoring them in a constitution the way Professor Gavison proposed in her article 3(D) is too strong and too dangerous. There is no country in the world, he claimed, in which the majority defines itself as an ethnic state. Golan interrupted to provide France, Germany, and many other countries as counter-examples. Yiftach-El also pointed out that while Jews have hundreds of settlement options, Arabs have nearly none. Instead of a constitutional protection of exclusive communities, he suggested, we could adopt Belgium’s softer method of allowing the establishment of a particular official language in a given community. Spain decides this regionally by census, and Canada’s Quebecois have their local collective rights as well. Yiftach-El supported softer means of protecting group identities, and additionally recommended a provision allowing the country to specifically protect the collective, community-creating rights of minority groups in danger. Finally, he recommended that Israel Land Authority leases, often open to Jews only, be made available in the constitution to all citizens.
Rabbi Uri Regev of the Reform Movement said that the Torah teaches that we must take care of non-Jewish foreigners in our midst. We should refer to our own traditions, to international accords, but also we should look at this all in the context of discriminated Jewish groups that have attempted to achieve some communality throughout the world. Let’s not do to the Arabs, he said, that which has been done to us. Regev said he felt comfortable with Gavison’s proposal, but said that it is not only Jews, Arabs, and Druze that must be considered, but rather all-self defined groups. We need to be careful, he recommended, about how we define a community. Once we have done that, he suggested we allow the free market to do its work. He pointed out that most people do not live in population-defined communities, but rather in multicultural cities. He cited the example of Lod**.
Dr. Daniel Polisar from the Shalem Center opined that there is a legal context and history to the protection of the land of the Jewish state. It wasn’t until March of 2000 that the Court overruled the Knesset with Katzir/Ka’adan. Will the Knesset succeed in returning to us the concept of the legitimacy of Jewish settlement? It has no choice, it must take back what the Court overruled in 2000. It would be better and more elegant if we could leave it out of the constitution, he said, but at this point the constitution must restore the principle of Jewish settlement, either directly or indirectly through the phrase “Discrete communities.”
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