Bedouin Encroachment In the Negev

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The Judge Goldberg Report from a Practical Point of View

By: Gilad Altman and Adi Arbel

 

Introduction:

During the fourteen years between 1990 and 2004, Gilad Altman served as the director of the “Sayeret HaYeruka” and played an active role in the issue discussed in the Committee Report.  From the experience he obtained, and from the knowledge amassed during his meetings with experts as part of the Lands Committee of the Institute for Zionist Strategies, the writers of this article seek to shed light on the central strong and weak points of the report in light of an analysis of the issue of Bedouin Settlement Land Arrangements in the Negev.  The writers additionally present practical suggestions for reaching a suitable, comprehensive, real and quick solution to the concern at hand.

 

In December 2007, Judge Goldberg was appointed to chair the Public Committee for the Proposal of Bedouin Settlement Arrangement Policy for the Negev.  A year later, in December 2008, the committee submitted its proposals to the Minister of Housing.

The committee’s mandate, as determined by the government resolution was as follows: “The committee is to submit its proposal for the creation of a comprehensive, extensive and implementable plan that is to set the rules for an arrangement for the Bedouin settlement in the Negev that is to include levels of compensation, arrangements for the allotment of alternative lands, civil enforcement and a timetable for the implementation of arrangements, including proposals for legislation, as required“.

 

The Bedouin issue is a complex issue comprised of a number of challenges.  Only serious confrontation and a proper response to these challenges will allow us to reach a comprehensive arrangement for the issue.  Ignoring any one of the many obstacles will eventually ruin the chances of reaching an arrangement.  Among the many challenges that must be overcome to resolve the Bedouin issue are: their claims of possession over the land, the lack of enforcement of building and planning laws, the lack of foundations, a low level of economic development, sparse settlement in a western state, polygamy and an accelerated birthrate.

In its report, the Committee was required to present a comprehensive solution for the arrangement of the issue of Bedouins in the Negev, though this particular solution proved to be no more than another link on the chain of failed past solutions.  The committee report was not able to reach enough conclusions in order to reach an implementable solution.  Its recommendations constitute a continuation of the current practice of turning a blind eye to many of the existing problems.  The current committee, perhaps because of those who constitute it, and perhaps because of other reasons, produced a report that only partially responds to the challenges listed above, and thus the committee did not fulfill the mandate assigned to it.  Moreover, another chance was missed to for a comprehensive solution to the Bedouin issue.

 

In the words of the Committee: “We will not list all of the past committees that proposed solutions for the Bedouin settlements in the Negev.  The multiplicity of committees did not bring about a real change in the matter for which they were created, they did not leave any indications of their actions, nor were any substantial changes made as a result of their actions…”.

In the political culture of the State of Israel, the temptation to bury the Committee report is strong.  The easiest solution, both for the executive authority and for the report’s critics is to present, using real and justified claims, the conclusions of the Committee as partial and/or erroneous, and thus to reject the report in its entirety.  In this article, it will be explained why and how the State of Israel must adopt the report as part of the solution to the Bedouin issue.

 

The State of Israel must not continue burying its head in the sand.  In the Bedouin issue and in the defending of State lands, the clock is ticking both for the Bedouins and for the State of Israel.  A population growth rate of 5.5 percent per year, which doubles the Bedouin population every thirteen years, exacerbates the situation plaguing Bedouins today and will bring about not only future generations of Bedouins growing up in poverty and misery, but also will cause the Jewish majority to lose its grip on the Negev.  Rejecting the report, like the lack of implementation of previous proposals for an arrangement, will only postpone the arrangement for a few years, meanwhile allowing the problems to rapidly intensify.

Moreover, the report presents a number of important core principles that are suitable to be included in a future solution, and laying these ideas aside will in effect also lay aside several worthwhile parts of the report.  Additionally, one of the report’s greatest shortcomings can also be seen as a great advantage: When the committee ignored a number of basic issues in its proposals, it essentially passed the responsibility on to the executive authority.  This is a golden opportunity for the implementation committee appointed to “submit to the government a detailed and applicable draft for the arrangement of Bedouin settlements in the Negev“.  Provided that the staff does its work faithfully, it will be possible to reach a suitable and comprehensive solution that will appropriately deal with each of the many challenges that comprise the issue.

The mandate taken on by the staff appears limited: “The staff’s primary responsibility will be the committee report, in which it will be required, among other things, to make recommendations to settle reservations arising among committee members“, but in practice, this is actually a very broad assignment.  One who reads the report in depth will see that the writers of the report, at times explicitly and at times inferred, left the task of implementation to the executive authority. Furthermore, many of the reservations brought up by the committee members, both from Bedouin and government representatives were fundamental and allowed the implementation staff great maneuvering ability.

 

In order to enable discussion regarding a suitable solution, there needs to be consensus on the starting points of the discussion:

  1. There must be recognition of the fact that the responsibility for past processes, the current situation, and a future arrangement lies upon the government.
  2. It must be understood that the current situation, as well as the future situation, provided that the handling of the issue remains unchanged, prove detrimental both to the Jewish population and the Bedouin population.
  3. The decision makers must take on the task of implementing an arrangement at all costs, despite the fact that a considerable number of government resolutions are never implemented, out of understanding that postponing an arrangement will cause Israel to lose the Negev and transform it into a land that is free of the law.
  4. The appropriate solution must be substantially different from all proposed past failed solutions.Additionally, because the plan is to be carried out over a number of years, it is crucial that it is widely accepted by the government and supported by various parties and sectors, so that it may be continued to be carried out for as long as necessary, regardless of changes in the government.

In order to reach a comprehensive and suitable plan solution that will be able to be implemented, the implementation committee must carefully examine the deficiencies of the document, reflected by ignoring of key issues, in order to hasten the consent of the committee.  There are least six examples of this:

 

  1. The Settlements – Clause 56 attributes the failure in establishing new settlements to the lack of attractiveness of the settlements as opposed to the conditions in the unrecognized settlements, “especially in light of the Supreme Court ruling calling for basic services in unrecognized settlements“. Despite the awareness of this essential fact, the committee chooses to ignore this.  Because of the fact that the laws will not change, even following the implementation of the proposed policy, it will still be difficult to make the legal settlements more attractive.  The situation described in the report in which “there is a trend of ‘negative immigration’, meaning moving from the legal settlements back to the unrecognized settlements” is destined to continue. The implementation committee must deal with the current situation, and will perhaps have to work to change it to ensure the success of the arrangement.

 

  1. Enforcement – Clause 139 is the only clause that discusses the enforcement of the plans listed in the recommendations chapter (Clauses 71-149). “From now on, there must be a firm and forceful enforcement, without which there is no purpose for our proposals“.  The committee’s reaction was an attempt to evade properly dealing with the issue.  The committee did not propose allocating resources to enforcement officials, did not suggest adding regulations and did not even attempt to explain how we reached a situation in which “south of Beersheva there is no God and no government“.  Three possible reasons caused the committee to easily skip over the subject: the desire to avoid criticism of the police, the desire to avoid criticism of the Bedouin culture, and the reason that is most important to us: the desire to avoid saying what has to be said: implementing this clause would require an enormous budget.  The committee knows that the larger the budget required to implement the proposals of the committee becomes, the chances of the government and the treasury’s approval lessen.  It is clear that with no budget, proposals or substantial plans, the proposal to strengthen the enforcement will go nowhere. The same enforcement that without which “there is no purpose for our proposals“.
  2. High Fertility Rate – Clause 23 describes the high growth rate of the Bedouin population and its future trends.  It is reasonable to assume that the birthrate will drop in the case that an arrangement promoting education and other Western values is reached, but not on a large enough scale to substantially improve the socio-economic situation of the Bedouin population and to remove them from the cycle of poverty that currently plagues them.  This cycle is caused because their high birthrate along with their low socio-economic level do not allow for a high enough level of education to permit future generations to improve their economic situation. The committee did indeed choose to ignore this sensitive subject, but it is recommended for the implementation committee to plan, in conjunction with the leaders of the Bedouin community, a plan for reducing the birthrate.
    1. Bigamy – Clause 24 describes the high fertility rate in the Bedouin population and attributes it, among other factors, to “the bigamy phenomenon, commonly found among Bedouins in the Negev, despite its being a felony (by means of ignoring the government)“. Even so, the Committee chose to ignore this issue throughout the entire document, as well as in its proposed policy. This issue is pertinent both on the fundamental and practical levels.  On the fundamental level, whoever is interested in keeping the State of Israel a Jewish, democratic and law-abiding State cannot allow himself to ignore this issue.  On the practical level, bigamy accelerates the already high birthrate, and thus lessens the chances of reaching an arrangement.  The implementation committee cannot allow itself to evade dealing with this issue, including combating the trend of Bedouin marriage to women from Gaza, Hebron and neighboring states.
    2. The Legal Aspect – Clauses 141-143 discuss the opinion pieces of the governmental authorities, the Attorney General, the Budgeting Department, the Ministry of Environmental Protection, The Israel Land Administration and the Planning Administration of the Ministry of Interior.  The Committee did not obligate itself to accept the recommendations of those authorities; likewise it did not publish them and still refuses to have them published.  We can learn about the views of the Attorney General by the words of hesitation by government representatives, Sharon Gambasho and Yossi Yishai: “We are of the opinion that the proposal should not be instated regarding the lack of enforcement regarding illegal construction in the legislation.  Such a ruling would result in certain difficulty in enforcement with regard to many structures, as presented by the Attorney General“.  While being able to ignore legal difficulties is a privilege reserved only for the proposal writers, the implementation committee must be able to deal with those same difficulties.  In order to prevent legal foot-dragging that would delay the implementation of the arrangement, it is hereby proposed to establish a separate ad-hoc mechanism to provide accelerated legal assistance for legal advice and claims management.

It should be mentioned that in the chapter on treatment, two committee members (Sharon Gambasho and Yossi Yishai, two out of three government representatives in the committee) offer a number of important recommendations, at least some of which are worth adopting.  The recommendations touch upon issues such as property rights, recognition of settlements, legalizing illegal construction and the way in which the policy is to be implemented; they also respond to additional issues that were not discussed in this article.

Aside from those lacunae presented in the report, we must learn from past experience in order not to repeat old mistakes.  The lands and illegal construction issue was previously debated by the Markovich Committee (1986) and the Gazit Committee (2000). In retrospect, it is clear that these reports not only did not solve the problem, they exacerbated it, and in this manner, they ended up causing harm to both the Bedouin population and the State.  In previous reports, as in this report, illegal buildings were approved or ignored as an allegedly humane and correct gesture.  Yet this ruling proved time and again as incorrect and inhumane.

It is incorrect because the approval to legalize an illegal structure has ramifications on the past only, and thus only solves half the problem. The other half lies in the future and is dependent on the ability of the people to uphold the law (once an overall plan is approved) and to enforce it (the prevention of renewed illegal construction).  Without these two components, the task will never be completed, resulting in an understanding that breaking the law was worthwhile in the past, is currently worthwhile and will continue to prove worthwhile in the future.

Permitting the continuation of illegal construction without the proper follow-up is inhumane in that it constitutes a danger to the Bedouin population itself.  Its dispersed population resides in unsafe structures that do not meet Israeli planning and building standards and are lacking proper foundations (such as water, electricity, and sewage) that do not meet safety and environmental standards.  Even public service buildings, such as medical clinics and schools, are built illegally by the government.

The younger generation grows up in this reality and discovers that breaching the law is in its best interest and learns to ignore the State’s demands.  There is no one who counters this wrongdoing, and the State itself, in its actions, sends a message that delinquency pays off.  The current habits of ignorance of the law and ineffective enforcement cause the crime rate to spread to other areas: from property damage to violence.

On the whole, people prefer to belong to stronger, more just and higher quality society.  From the point of view of the Bedouin child in the Negev who grew up in such a reality, the State of Israel is not strong, as it does not enforce its laws; is not just, as it does not stand behind its promises; and is not of high quality, as seen by the low standard of living in his village.  In such a reality, it is easy for a Bedouin child to join one of the many separatist groups who oppose the State.  It is our responsibility to change this reality as soon as possible.

It is possible to change this reality.  One way is through the implementation of the Goldberg Committee Report, after a few necessary adjustments and the solidification of certain parts to ensure the completion of the arrangement as described.  Nonetheless, progressing down this path is also dangerous.  The process leading up to implantation is likely to be lengthy, which may turn this committee into another governmental obligation that the State did not stand behind.  Valuable time will be wasted; the plight of the Bedouins will become worse; and the tiny bit of trust in the State of Israel among the Bedouins will dissipate.

Fortunately there is another shorter and more effective way: the decision makers must remove all of the political obstacles, set the Goldberg Report aside, and clean the dust off of Government Resolution no. 216 (ARB/15) from 17.9.03 “The Plan for Dealing with the Bedouin Sector in the Negev – Revised Version of Resolution no. 216 (ARB/1), 14.4.03, including revisions approved in Resolution no. 216 (ARB/14), 17.9.03”.

 

This resolution was put into effect at a time when the government was faced with the same needs and considerations that it was faced with in the Goldberg Committee.  The program approved in the resolution is already ready to be implemented and appropriately responds to the needs of the population in all areas of life, beginning with developing existing permanent settlements to establishing new settlements to improving living conditions in the settlements, including education, culture and welfare in order for these to serve as a center of attraction for the dispersed population.  A complimentary step would be the strengthening of the enforcement including a proper allocation of resources and budgeting, including a timetable for step by step implementation.  All that is left is to make a decision and to act on it: To send this plan back to the legislators, approve it as a law to be implemented, appoint appropriate professionals and ensure full support spanning all parties for as long as the project takes until completion.

We must act now, as there is no time to form a third committee.

 

To The Full Position Paper

ILA Reform

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As part of its efforts to save the economy from the world economic crisis, the 32nd Israeli Government chose to institute a reform in the Israel Land Administration (ILA).  It is understandable that this reform may in fact be essential for a future increase in economic growth, but without properly dealing with the substantive aspect of the reform, it can be stated that this reform contains a number of components that harm the State of Israel’s national interests as the National Home of the Jewish People.

Presented here are clauses that we find harmful to the Zionist Goal, followed by means to amend them while preserving the interests of the Jewish People, and without harming the objectives of the reform:

  1. The reform asserts that State lands will be transferred to private ownership, in clear defiance of Basic Law: Lands of Israel, which declares that these lands are only to be leased.  This change opposes the Jewish principle of “This land will never be sold permanently”, raises the chances of hostile purchase of these lands, and releases these lands from the hands of the Jewish People and its future generations.

Our recommendation is that State lands remain in the possession of the State, without harming the rights of the lessees and by means of virtually eliminating the bureaucracy required between the lessees and the Administration.

  1. The reform delegates planning and building authority to the local boards, which are vulnerable to political pressures from local pressure groups.  If they are unable to stand these pressures, this will bring about harsh planning and building problems in the local councils, especially in those already suffering from improper administration.

Our recommendation is that local planning committees are only granted authority of departments that have already proven proper management over time, and will be subordinate to regional planning committees which will properly respond to appeals.

  1. The reform harms the rights and status of the JNF and does not ensure essential future arrangements to preserve the interests of the JNF in light of the proposed reform.

Because of the moral obligation of the State of Israel to the JNF and the Jewish People, our recommendations on the issue are:

  1. Future land exchanges between the ILA and the JNF are toinclude lands capable of being developed.
  2. The value of the lands under ILA ownership is to remain the same.
  3. The position of the JNF on the ILA board is to be maintained.
  4. The JNF is to manage its lands independently and in accordance with its founding documents.

To The Full Position Paper By Adi Arbel (In Hebrew)

Is This Land Still Our Land: The Expropriation of Zionism

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Summary:

The Supreme Court ruled in 2000 that the State could not allocate land to the Jewish Agency for Jewish settlement (inside the green line).  It held that this violated equality because it discriminated against non-Jews (Arabs) who could not buy a house in this Jewish settlement. This, even though the Court had years before allowed the State to sell land at subsidized prices exclusively to Arabs (Bedouins) in an urban area planned just for them.

:Other similar cases were brought, including one which would prohibit the State from facilitating Jewish settlements on Jewish National Fund lands which, were bought with private Jewish funds raised from Jews all over the world since 1901.  The JNF is a private company whose charter provides that it is to purchase land in Israel for Jews to develop and settle, and that these JNF lands were never to be sold (only leased) and are to be held in perpetual trust for the Jewish People. The Attorney General, representing the State in the court proceeding (though never consulting with the government) took the position in court that JNF land, like State land, cannot be used for exclusively Jewish settlement.

Jewish settlement is a cardinal value of the Zionist project to establish and promote a Jewish State.  The petitioners in all these cases are Arab NGOs and many see this as another thrust in a coordinated effort to undermine and eliminate the Zionist state.

In an article published this month in Azure two members of the IZS team discuss this case, the meaning of democracy, and the morality of a Jewish state.  They show that many democratic states, like Israel, are nation-states which promote the majority culture, identity, religion, and/or immigration of its kin (e.g., Switzerland, Sweden, Finland, the United Kingdom, Norway, Denmark, and Greece).  They show that the Court is bogged down in a parochial conception of democracy and that it misconstrues the nature of nation-states.  They argue that the Israeli Court currently is an elitist, undemocratic body abrogating for itself the right to change the Israeli society against the wishes of the vast majority of its citizens and of their democratically elected representatives.

 

Click here to read the full article

Planning and Construction Committee Reform

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A Reform in the Planning and Building Committee

A Brainstorming Session with the Director-General of the Prime Minister’s Office (6.08.09)

 

As we prepare to examine the reform in the planning system of the State of Israel, we must firstly recognize the fact that the State of Israel is a state with unique circumstances.  The central and most significant piece of information is that the land of Israel is a limited resource and present and future needs are great.  Therefore it is imperative to plan land use wisely and to keep future needs in mind.  Furthermore, the State of Israel possesses additional characteristics that should be taken into consideration:

 

  • A fertility rate similar to developing countries versus a consumption rate similar to developed countries.
  • A narrow width reaching a mere 15 km in certain areas.
  • Israeli society is comprised of weak populations such as minorities, haredim and olim who tend to prioritize urgent needs and short term considerations over long term planning goals.
  • Throughout all the years of its existence, the State of Israel faced Zionist challenges that necessitated the initiation of projects requiring substantial reserves of land and central planning, for example: absorbing waves of mass immigration, establishing the Misgav settlement bloc in the Galilee, establishing the city Bahadim in the Negev, establishing central infrastructure systems (such as the natural gas lines and Highway 6), strengthening the periphery, etc.
  • The disparities in the quality of life between the center and periphery of the State are drastically increasing.
  • Most local authorities do not function properly: State comptroller reports indicate a declining trend both in terms of integrity and in terms of proper management.  A majority of authorities collect less than 50% of property taxes.  Many local authorities are lacking the abilities and tools to properly manage planning while catering to the broad public-national interest, as opposed to what can be observed in national planning policy.
  • The rate of enforcement of planning and building laws is low in the population as a whole and in all sectors of society.

 

In light of the aforementioned, following is a list of core tenets for any future planning policy.

  • The government should maintain jurisdiction over powers that facilitate the preservation of national interests.
  • Aside from the environmental function they hold, open expanses serve as a national reserve of the State of Israel to be used for future generations and Diaspora Jewry. The tools currently available in the planning system should be utilized to preserve the open expanses as a national reserve of the State.
  • The enforcement system for planning and building laws should be immediately reinforced without political considerations or sectoral distinctions.
  • The enforcement should be focused primarily on open expanses (as opposed to building violations such as enclosing a porch).
  • The transfer of building and planning authority to local authorities should be done, if at all, in a gradual and controlled manner, and only to authorities that have demonstrated proper management over time and possess the skills and tools necessary for exercising these powers.  Therefore, the appointment of local planning and building committees, in accordance with Article 62.a. of the Planning and Building Law should be carried out without the easing of rules or quantitative quotas. Government Resolution No. 117 (ממי/5) from 12.05.2009, which instructs “the Minister of Interior to appoint at least ten local planning and building committees…during each of the years 2010-2014” can bring about an undesirable modification of the criteria stated by law.  It is proposed to only approve local authorities that have demonstrated that they fulfill the professional criteria as stated by law.

“A Constitution for Israel” The Institute for Zionist Strategies’ Constitution Proposal

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The IZS Constitution Proposal contains one hundred clauses.  The Declaration of Independence serves as the Preamble of the Constitution.  The Declaration of Independence’s role as the Preamble stems from its function as a founding document of the Jewish Nation as it returned its land and because its acceptance by a majority of the Jewish population of the State of Israel.  As proof, in honor of the State of Israel’s 60th Independence Day, no fewer than ninety Members of Knesset signed a renewed version of the Declaration of Independence, in an initiative of the Institute for Zionist Strategies.  Additionally, in Clause 4 of the Constitution, it is stated that the Preamble (that is to say the Declaration of Independence) is an inseparable part of the Constitution.  It also states, as a formal safeguarding measure, that a two-thirds majority of Knesset Members is required to change the Preamble of the Constitution.

Our Constitution Proposal is complete and coherent, and proposes clauses connected to the identity components of the State and governmental arrangements.  The Constitution Proposal is divided into ten chapters:

  1. A) Basic Principles of the State (Clauses 1-4).
  2. B) Civil and Human Liberties (Clauses 5-20).
  3. C) The National Home for the Jewish People (Clauses 21-31).
  4. D) The President of the State (Clauses 32-36).
  5. E) The Legislative Authority (Clauses 37-48).
  6. F) The Executive Authority (Clauses 49-64).
  7. G) The Judiciary (Clauses 65-80).
  8. H) The State Comptroller (Clauses 81-88).
  9. I) The Status of the Constitution and other Legislation (Clauses 89-98).
  10. J) Ratification and Amendment of the Constitution (Clauses 99-100).

Following is a short description of each of the primary arrangements presented in each chapter and the rationale behind each one.  The summary was not intended to individually represent each clause of the proposal (for more aspects of the Constitution Proposal, you can read the summary written by Prof. Avraham Diskin in the preface to the IZS’s Constitution Proposal or the comparison between the IZS proposal and that of the Israel Democracy Institute).

 

A. Basic Principles of the State

This chapter emphasizes the characteristics and principles of the State of Israel.  The first clause in the Constitution states “The State of Israel is a Jewish State and the National Home of the Jewish People”. Additionally it states that “the Jewish People fulfills its yearning for self-determination in accordance with its historical and cultural heritage”.  This serves as the identity clause that secures the Jewish-Zionist nature of the State.

Clause 2 states that “The State of Israel is a democratic state, which respects human rights in the spirit of the Jewish heritage’s principles of freedom, justice, integrity and peace”.  Clause 3 states that “the State’s sovereignty inheres in its citizens”.

These clauses, and the Preamble to the Constitution (The Declaration of Independence) are unchangeable, except for a two-thirds majority of the Members of Knesset.

B. Civil and Human Liberties

This chapter contains the arrangements regarding the Human Liberties Document, by means of recognizing each person as being created in the divine image and endowed with freedom and dignity.  The rights listed are the rights to life, limb, and safety, the right to preservation of privacy, the right to property, freedom of religion, freedom of conscience, freedom of culture and of opinion, freedom of movement, freedom of expression, freedom of assembly and of association, the right to have a fair trial and the right to be presumed innocent until proven guilty.

It is also determined in this chapter that Israeli citizenship is to be granted and nullified according to statute.  In this manner, the Constitution remains flexible in its allowing the legislature to determine the citizenship arrangements required for the State of Israel. Over the course of the meetings of the Constitution Committee of the 17th Knesset, the IZS proposed an additional version of citizenship (A description can be found in the Activities chapter).

With regard to the right to equality, the Constitution Proposal states that “All are equal before the law; rights and obligations apply equally to all citizens of the State; the failure to fulfill obligations may entail the loss of rights and eligibilities, as shall be determined by statute. In areas relating to the security of the State, the State my restrict rights, obligations, and eligibility for public office to those with appropriate security clearance”.

This chapter also deals with the relationship between the various rights, the balance between them, the restriction clause, and more.

 

C. The National Home of the Jewish People

This chapter deals with the resolution of the Jewish character of the State.  A portion of the arrangements can already be found in the Basic Laws, for example the establishment of Jerusalem as the capital of Israel, some are expressed in regular laws, and some are not mentioned in any statute.

This chapter includes many arrangements relating to the Jewish identity of the State, for example – Hebrew as the official language, the Jewish calendar as the official calendar, Independence Day as a national holiday, etc.

Similarly, the minorities’ rights are protected in terms of their days of rest, culture, language, settlement and education.

 

Clause 27 secures the State of Israel’s obligation to “ingather the Diaspora of Israel and to establish Jewish settlement in Israel, and [it will] allocate lands and resources for these purposes”.

 

D. The President of the State

This paragraph outlines the authorities and activities of the President of the State.  This chapter secures the regulations that appear in the Basic Law: The President of the State.

 

E. The Legislative Authority

This chapter regulates the instructions relating to the activities of the Knesset, elections, etc.

Clause 40 states that the Knesset will be elected by means of a general election, that is direct, equal and done by secret ballot.  This differs from the Basic Law of the Knesset, in that it does not specifically state that the elections will be state elections (as opposed to representation by region, for example), thus allowing for change in the governmental system.

 

This chapter states that candidates or parties will not be permitted to run for Knesset if their goals or actions promote the invalidation of the State of Israel as the National Home for the Jewish People, the invalidation of Israel’s democratic government, or support of a hostile state’s armed struggle or any other organization that opposes the State.

 

An interesting innovation of the Constitution is that most MKs would be permitted to initiate referendums regarding matters of sovereignty and constitutional questions.  It also states that a referendum is advisory only and that its results are not binding for the Knesset or for any other authority.

Most of the powers of the Knesset and its members will be dealt with in the statutes in order to allow flexibility for the legislature.

 

F. The Executive Authority

This chapter delineates the activities and powers of the government. Alongside the arrangements currently in place in the Basic Law: The Government, a number of additional arrangements have been put in place.  For example, Clause 53 states that a Member of Knesset who is appointed to serve as a minister in the government must terminate his Knesset Membership as would be stated by law (similar to Norwegian Law).

In addition, as can clearly be seen following the elections for the 18thKnesset, is the ruling that each political party must reach a decision, prior to the elections, as to which prime ministerial candidate it is in support of.  Following the elections, the nominee for Prime Minister receiving the greater number of votes earns the right to assemble the government.  Regarding the Budget Law, it was decided that if the Budget Statute is not accepted by the beginning of the fiscal year, the government is permitted to withdraw the equivalent of the twelfth portion of the previous year’s budget each month.  The novelty in this change is that if the Budget Statute is not passed it is not seen as a lack of confidence in the government.

Another interesting and innovative clause is Clause 63, which resolves the relationship between the political and military echelons.  The arrangements in this clause solidify some of the arrangements currently in effect in Basic Law: The Military.  This clause lists the goals of the military (currently unlisted in Basic Law: The Military), and states that the IDF is responsible for the security of the State, its citizens and residents, and members of the Jewish Nation in distress.

 

G. The Judiciary

This chapter deals with issues concerning the activity of the Judiciary.  This chapter contains new ideas regarding the appointing of judges, the appointing of the Chief Justice of the Supreme Court and the duration of his service, the status of the religious courts and alternative arrangements for marriage and divorce.

This chapter additionally secures the right to be tried according to administrative law by means of restricting the right to petition to those petitioners who are directly affected by the results.  The judicial boundaries are also dealt with here: The court may only become involved in administrative authority if it is clear that the purpose of the action is blatantly improper.  It similarly states that the court will not deal with matters regarding foreign policy, security policy or fundamentals of the budget.

The clauses in this chapter emphasize the independence of Israeli Law by means of giving preference to the principles of freedom, justice, integrity and peace as enunciated in the Jewish heritage.

It should be mentioned that Clause 79 deals with the length of the Chief Justice’s term and limits it to seven years.  Fortunately the 17th Knesset passed a law that dealt with this very issue.

 

H. State Comptroller

There are no significant changes from Basic Law: The State Comptroller.

 

I. The Status of the Constitution and other Legislation

This chapter discusses various issues regarding the normative status of the Constitution.  For example, it has been stated that no statute shall be held to contravene the Constitution, unless a panel of nine or more Supreme Court judges determines that its purpose is blatantly inappropriate.  Nonetheless, the Knesset is permitted to nullify the invalidation of the law, even after the Supreme Court decision.  The Knesset must act within one hundred twenty days of the decision of the Court and the decision must be affirmed by a majority of the Members of Knesset.  It is also stated that no rights or authorities exist aside from what is stated in the Constitution.

Additional regulations: In order to establish a safeguarding provision (sixty-one Members of Knesset, for example), it is required that the law be passed in the second and third readings with the determined majority.  It also states that Emergency Regulations cannot amend or temporarily suspend the authority of the Constitution.  The Knesset may amend this clause with a two-thirds majority.

 

J. Ratification and Amendment of the Constitution

This chapter regulates the way in which the Constitution will be put into effect and dictates the procedure that must be followed in order to make amendments.  The Constitution shall take effect upon its acceptance by a majority of the Members of the Knesset, in a roll-call vote.  Likewise, the wording of the Constitution must pass a public referendum before the second and third readings.  No change may be made to the Constitution except by a majority of the Members of Knesset in a role-call vote. A public referendum must also be held in the event of a change to the Constitution.

In addition, all Basic Laws will be nullified.  The remaining laws that are not included in the Constitution will be covered by new statutes.

 

Downloadable Documents :

IZS Constitution Draft Presentation(PPT Format)

IZS Constitution Draft Full Text

Introduction / Prof. Avraham Diskin

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This year’s festive Tu Bi’Shvat session of the Knesset, held on February 13, 2006 by Israel s sixteenth Knesset, focused on the subject of an Israeli constitution. The results of two years of work by the Knesset Constitution, Law and Justice Committee, headed by Knesset Member Michael Eitan, in preparation for the passage of aconstitution in Israel, were presented to the Knesset. Both the festive Knesset session and the Knesset committee appear to have been working from the assumption that the seventeenth Knesset, elected on March 28, 2006, would complete the passage of the Israeli constitution, an endeavor embarked upon even before theestablishment of the state.

Israel has a fairly well developed system of constitutional arrangements which are, however, incomplete and uneven in nature. Paradoxically, it has been the legislative developments and rulings on constitutional issues of recent years thathave increased the ambiguity and heightened disagreement regarding basicconstitutional issues. This situation underscores the need to pass a constitution as soon as possible.

 

Checks and Balances

Some emphasize the importance of passing a constitution that will be acceptable to all parts of the Israeli public. Unfortunately, there is considerable doubt as to whether it is at all possible to formulate a constitution that everyone can agree upon. Israeli society is divided in many respects and the State of Israel is a state whose very right to exist is even today still called into question by many, from both within and without. Under such circumstances, along with the desire to attaina broad consensus, there is a need to make unequivocal decisions regarding the basic principles upon which the state and its government are founded. The tension between the need to attain a broad consensus, on the one hand, and to make clearcut decisions on the other, is characteristic of the process that every country involvedin determining constitutional frameworks undergoes. In Israel, however, this tension – between the need to find a fine balance between conflicting demands and the need to make clear-cut decisions – appears to be one of the main factors contributing to the delay in the constitutional process.

Among the subjects that formal constitutions deal with, four central issues need to be clearly decided upon:

  1. The basic characteristics and principles of the state;
  1. The status of the individual and the citizen, and the setting of clear guidelines to determine the relations between the individual and the state’s officialinstitutions;
  1. The nature of the government and of the governmental authorities acting on behalf of the state – including the setting of clear guidelines to determine the nature of the relationship among the official authorities themselves and that which exists between them and the citizens of the state;
  1. The setting of guidelines for the pyramid of norms that are binding on the state and, in particular, determining the status of the constitution, as compared to primary legislation, and the effect of the system of norms when the actions and decisions of the legislature and executive are reviewed by the judiciary.

Making decisions on these subjects is not easy and each requires either a fine alance or a clear-cut decision – which are often mutually exclusive.

 

Nationstate and Democracy

Constitutions in enlightened countries aspire by nature to be democratic. But the question of the procedural and practical definition of democracy is no simple matter. History has shown us all too often that democracy must frequently contend with irreconcilable contradictions between its various demands. Moreover, most enlightened countries developed as nation-states. Some might claim that there is an inherent contradiction between the character of a state as a nation-state and its character as a democratic one. Nevertheless, in practical terms, it would appear that most countries have managed to attain a balance whose results are fairly dichotomous, making it reasonably easy to determine if a given regime is democratic, practically speaking, or not. In the Israeli context, decisions have to be made regarding the essence of the state as the national home of the Jewish people, the rights of its minorities and questions of religion and state, which some maintain have been the principal factors responsible for the delay in passing the constitution.

No basic human or civil right is absolute. From this it follows that there exists no absolute freedom or equality. This is all the more so where the contradiction between freedom and equality is concerned, to say nothing of the additional contradictions between other freedoms and rights. A democratic constitution seeks to present not only a “complete” list of rights, but also keys to understanding the contexts inwhich freedoms may be limited and the nature of the decision that must be made when it becomes evident that there is a contradiction between conflicting basic rights.

In view of the collapse of advanced democratic regimes in the twentieth century, we must not forget that every democracy has the right and obligation to defend itself. It must defend itself not only against those who would use violent means to fight it, but also against those who seek to exploit the rules of democracy itself in order to undermine it. This is all the more so in the case of Israel, which findsitself having to combat consistent attempts to oppose its very essence as a Jewish state and even its very existence. A sizeable minority of Israel’s citizens belong to a people a large part of which, regrettably, views itself as Israel’s sworn enemy.

That democracies need to defend themselves against those who would destroy them has been underscored in a number of laws in democratic states and is recognized as a prominent principle of natural law. In the words of Chief Justice Barak, “A constitution is not a recipe for suicide and civil rights are not a vehicle for national destruction.” It is incumbent, therefore, upon the constitution to give expression to the requirement of a democracy to defend itself.

 

Constitution, Law and the Judiciary

The decision regarding the basic characteristics of the form of government is far from philosophical. There is no dearth of examples showing how constitutional arrangements on the questions under discussion can produce the seeds of rifts and division to the point of causing the democratic entity to collapse. In the Israeli context, it would be wise to draw conclusions from changes that have been madein various directions in recent years. In addition, especially salient in the Israeli case is the importance of maintaining the stability of the government and its ability to govern, on the one hand, and of safeguarding the representativeness of thegovernment and its branches, on the other.

A Jewish Majority in the Land of Israel

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By Yakov Faitelson

Growth trends and population forecasts have played a significant role in the political landscape of the Middle East, especially over the thorny question of Israel and the disputed territories. The notion that the Jewish majority of Israel is in danger of being swamped by Arab fertility has repeatedly been used as a political and psychological weapon to extract territorial concessions from the Israeli government. In September 2010, U.S. president Barack Obama referred to the so-called “hard realities of demography” that threaten the survival of the Jewish state.

Such a conclusion is wrong. Analysis of long-term demographic developments leads to quite the opposite conclusion: In the long run, a strong Jewish majority, not only in the state of Israel—as this author projected almost twenty-five years ago and the Israel Central Bureau of Statistics recently reaffirmed—but also in the Land of Israel is quite possible.

Population growth for the Land of Israel at the end of the second decade of the twenty-first century will be influenced by the Arab and Jewish natural increase rates reaching a convergence point based on similar live birth and mortality rates. It will also likely be influenced by continued Jewish immigration, including a new, possibly strong wave in the near future following the prolonged world economic crisis and manifestations of rising anti-Semitism around the globe. Repatriation will also be encouraged if the Israeli economy continues to be strong in the near future, an increased likelihood based in part on the huge gas and shale oil fields recently discovered in Israel. The share of Jews in the total population of the Land of Israel may also increase as a result of continued Arab emigration that may include Israeli Arabs as well. According to the results of the first-ever survey on political-social attitudes of Arab youth in Israel, conducted by the Baladna Association for Arab Youth and the Mada al-Carmel Arab Center for Applied Social Research, both in Haifa, 25 percent of the Arab youth in Israel want to emigrate.

Every country has a natural and objective carrying capacity limit for the population living on its territory and, in this respect, Israel is no different than any other. With that in mind, demographic projections can and should be used as a tool for planning by the state as well as by municipalities to avoid mistakes that can damage vital infrastructure and public services, such as health, education, and welfare systems. Ignoring the impressive demographic changes of the last twenty years in Israel has produced heavy burdens on Israel’s health system due to a lack of hospital beds and a scarcity of medical personnel. Overpopulated classrooms and a lack of qualified teachers is another such consequence.  Similarly, lower than necessary construction starts in the residential sector is causing pain for young couples.

Developing proper demographic policies can be important tools for planning national security needs to assure internal order and the security of the state’s borders. Jerusalem must bear in mind that without developing such a professional, comprehensive, and long-term demographic policy, it will be very difficult to reach the vital goals of assuring a stable and secure future for generations to come.

For the full research (in Hebrew)

The demography of Jerusalem

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In the research, Ya’akov Faitelson, using statistical and comparative data, presents the demography of greater Jerusalem and its anticipated patterns of growth in the coming years.

One of the findings charts the rapid growth trend in the Jewish sector, relative to other sectors. An unexpected finding, is the fact that, in contrast to the center of the city, there is no migration of Jews from greater Jerusalem. The purpose of the research is to create a foundation for the formulation of a demographic policy appropriate to each of the regions in the country, starting wit the Capitol. Faitelson offers innovative suggestions and recommendations for a plan of action.

For the full document (hebrew)

Strategy of Unilateral Withdrawal

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Test Case of The Disengagement Program

Adi Arbel and Inbal Liber

2005: The Disengagement Plan was initiated as one of the most dramatic moves in history of the Israeli government: unilateral evacuation of nearly 9,000 Israeli residents from Gush Katif and northern Samaria coupled with the withdrawal of security forces out of the Gaza Strip.

2015: Ten years following the disengagement from Gaza and northern Samaria, it is evident that the political reality facing Palestinians has hardly changed – the levels of trust between the two governments is tenuous at best, and the security situation is unstable and a political settlement between them can be described as implausible and remote under the current status quo.

The objective of this document is to analyze the strategic implications from the test results of the unilateral withdrawals, employing the disengagement plan as a case study. What were the goals for carrying out the disengagement plan? Does the program achieve its objectives? In light of the political challenges it faces, can unilateral withdrawals be implemented for the betterment of the State of Israel?

At first, 12 goals were posited to justify  a plan of unilateral withdrawal: Breaking the political deadlock, the neutralization of alternative policy initiatives, separation from the Palestinians, keeping the settlement blocs, the need to protect the residents, the difficulty of low intensity conflict, dealing with instances of insubordination, international demand for political progress, causing international pressure to be directed against the Palestinians rather than against Israel, ending Israeli rule over another people, countering the posited demographic problem, and satisfying the public pressure to leave Gaza.

The second part of the position paper examines the degree of success to which the disengagement plan attains its intended results. The results reveal an almost total failure to achieveany of the stated goals: the political stalemate continues, the alternative policy initiatives promoted before the program have not been neutralized, the separation from the Palestinians has not even been partially achieved, the already negative political status of the settlement blocs has only worsened, and the people of Israel have been exposed to greater threats from the Gaza Strip.

Moreover, Israel has experienced rounds of low intensity intensive combat, instances of insubordination did not stop but in fact spread to additional groups in Israeli society, and the international demand for political progress only intensified. The Gaza Strip, still a demographic time bomb on Israel’s front doorstep and has not been subjected to the same degree of international pressure directed at Israel The Disengagement plan has caused increased international pressures on Israel, it has also weakened Israeli society from within.

Ten years after the Disengagement Plan, there is a broad consensus in Israel that the disengagement  has been a complete and abject failure. This failure was due to geopolitical factors which have not changed so that any future unilateral withdrawal will likewise fail to achieve the stated goals.

To The Full Position Paper (In Hebrew)

Incentives for Service

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By Dr. Yoaz Hendel and Nicolas Touboul

For several years discussions have been held about different propositions for government resolutions and legislation to improve the benefits granted to citizens who have served in the army or the civilian national service. These proposals include exemption from taxes, preferences for acceptance to student dorms in institutes for higher education, and preferences or benefits relating to allocation of land for housing. In their essence, the proposals entail the basic proposition that it is proper and just-and non-discriminatory- to provide public benefits in return for past contributions to the society and State. The benefits would provide preference in hiring, in wages, and in various state services offered.

 

On the one hand, the supporters of these propositions feel that the current situation discriminates against those who have dedicated years of their lives to the State. The current level of remuneration shows disregard and demeans the service. It is also manifestly unfair and discriminatory to fail to compensate those who were mandated to serve while others were not. Critics of the proposals claim that rewarding army service and national service discriminates against the Arab and Chareidi populations who are exempt from service. Compensation for service should be made during service and not afterwards, they argue.

This comparative analysis establishes that post-service benefits are common in the Western world. Most of the democratic countries which were examined maintain some system of benefits for those who protect the country within an army framework. In terms of the types of benefits, differences could be found in the determination of who benefits (soldiers, veterans, their families) and in the form of benefit (employment, education, and various other benefits).

In the United States, enlistment was compulsory until 1973, and benefits have been instituted since 1944: preferential mortgages, unemployment benefits, educational subsidies and small business loans are some of the benefits extended to veterans. Approximately 10 million veterans have enjoyed the GI benefits, and in the Cold War era a third of the US population has enjoyed the benefits. It was found that the GI benefits helped many Afro-Americans improve their economic and social status. Similarly, in November 2009, President Obama signed a bill to promote public sector employment of veterans. Two years after the bill took effect, 28% of new public sector employees were veterans (although they comprise less than 10% of the general adult population).

In Canada, where the enlistment is not compulsory but seeks to reflect all parts of society, incentives for preference in the private sector are given to veterans. Veterans are also granted scholarships and insurance benefits. In Switzerland, where army service is compulsory, an extra 3% is levied in income taxes from those who don’t serve. In France, where service was compulsory until 2001, combat veterans receive a special pension and are preferentially given rooms in old age homes. The English Labor Party is initiating a scheme of mortgages for army veterans and priority for an interview with a private employer. In India jobs in government offices, public corporations, and public banks are reserved for veterans. In South Africa veterans are given rights when receiving medical treatment, and in college and vocational aid, as well as in discounts on public transportation. And in Australia they are given an automatic mortgage entitlement.

Proposals to reward IDF and national service with post-benefits conform to accepted standards in democratic governments throughout the world.

 

For the full comparative analysis (in Hebrew)