Israel does not have a constitution. The declaration of independence (which has nice humanistic language) is not considered one of the basic laws of the state of Israel and is not considered binding. One cannot fail to notice the really problematic (& racist elements) in the basic laws and if one is a gentile citizen of the state cannot but feel their direct impact. This is in essence the real problem that Israelis (Christians, Muslims and Jews) have to contend with regardless of whether Palestinian refugees are allowed to return to their homes and lands or not.
Here is an excerpt from Israel’s declaration of Independence (May 15, 1948):
“We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called ‘Israel.'”
Needless to say,, no constitution was written. Reasons given have ranged from wars to the issue of religion and Halachik law. The Knesset own web site (http://www.knesset.gov.il/knesset/) states the following:
“Since the Constituent Assembly and the first Knesset were unable to put a constitution together, the Knesset started to legislate basic laws on various subjects. After all the basic laws will be enacted, they will constitute together, with an appropriate introduction and several general rulings, the constitution of the State of Israel. “
Many basic laws have been passed by the Knessset. The significance of these laws was lent credence in numerous Israeli supreme court decisions that upheld them when contradictions occurred with other laws or decreas by the state.
Basic Laws of the state of Israel can be found at http://www.israel.org/mfa/go.asp?MFAH00mz0 >From a Zionist perspective, the most important are The Law of Return (1950), Israel Nationality Law, and Israel Lands, in 1960. These are precisely the laws that are most problematical for democracy and human rights. Let us first quote teh laws verbatim and then provide some analysis.
Law of Return 5710-1950
Right of aliyah**
1. Every Jew has the right to come to this country as an oleh**. Oleh’s visa
2. (a) Aliyah shall be by oleh’s visa.
(b) An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration is satisfied that the applicant
(1) is engaged in an activity directed against the Jewish people; or
(2) is likely to endanger public health or the security of the State.
3. (a) A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate.
(b) The restrictions specified in section 2(b) shall apply also to the grant of an oleh’s certificate, but a person shall not be regarded as endangering public health on account of an illness contracted after his arrival in Israel. Residents and persons born in this country.
4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law. Implementation and regulations
5. The Minister of Immigration is charged with the implementation of this Law and may make regulations as to any matter relating to such implementation and also as to the grant of oleh’s visas and oleh’s certificates to minors up to the age of 18 years.
* Passed by the Knesset on the 20th Tammuz, 5710 (5th July, 1950) and published in Sefer Ha-Chukkim No. 51 of the 21st Tammuz, 5710 (5th July. 1950), p. 159; the Bill and an Explanatory Note were published in Hatza’ot Chok No. 48 of the 12th Tammuz, 5710 (27th June, 1950), p. 189.
** Translator’s Note: Aliyah means immigration of Jews, and oleh (plural: olim) means a Jew immigrating, into Israel.
The Knesset introduced this clarification addendum titled “Waiver of Citizenship by Virtue of Return”
“A Foreign citizen who immigrates to Israel by virtue of the Law of Return but who does not wish to receive Israeli citizenship may waive such citizenship, but must perform an act in order to do so, and must give a written declaration to the Ministry of the Interior within three months of immigration / receipt of immigrant certificate, subject to such person’s still being a foreign citizen on such date. Where no such waiver declaration is made, the immigrant remains a citizen for all intents and purposes. A waiver of immigration may be revocable ..”
The significance of this is that you actually have to actively seek being considered a non-citizen if you are Jewish. For non-Jews, the opposite is true. This is further elaborated in the Israeli Nationality law (below). As yyou read this next law notice how crafty it is in excluding Palestinian refugees (this is very important).
BASIC LAW: Acquisition of Israeli Nationality*
[*Here and throught this English version of the law, this is intentionally translated wrong on the Israeli government sites. In Hebrew it is stated “Ezrahut” (Citizenship) Law and anot nationality see notes below on the use of nationality versus citizenship. There is no “nationality” status apart from “Jewish nationality” in Israeli law. That was affirmed in the High Court decision “Tamaris v. Ministry of Interior” (1971).]
Israel’s Nationality Law relates to persons born in Israel or resident therein, as well as to those wishing to settle in the country, regardless of race, religion, creed, sex or political belief. Citizenship may be acquired by:
Acquisition of nationality* by birth is granted to:
1.Persons who were born in Israel to a mother or a father who are Israeli citizens.
2.Persons born outside Israel, if their father or mother holds Israeli citizenship, acquired either by birth in Israel, according to the Law of Return, by residence, or by naturalization.
3.Persons born after the death of one of their parents, if the late parent was an Israeli citizen by virtue of the conditions enumerated in 1. and 2. above at the time of death.
4.Persons born in Israel, who have never had any nationality and subject to limitations specified in the law, if they:
apply for it in the period between their 18th and 25th birthday and have been residents of Israel for five consecutive years, immediately preceding the day of the filing of their application.
Acquisition of Nationality according to the Law of Return
On the establishment of the State, its founders proclaimed “…the renewal of the Jewish State in the Land of Israel, which would open wide the gates of the homeland to every Jew…” In pursuance of this tenet, the State of Israel has absorbed survivors of the Holocaust, refugees from the countries in which they had resided, as well as many thousands of Jews who came to settle in Israel of their own volition.
The Law of Return (1950) grants every Jew, wherever he may be, the right to come to Israel as an oleh (a Jew immigrating to Israel) and become an Israeli citizen.
For the purposes of this Law, “Jew” means a person who was born of a Jewish mother, or has converted to Judaism and is not a member of another religion.
Israeli citizenship becomes effective on the day of arrival in the country or of receipt of an oleh’s certificate, whichever is later. A person may declare, within three months, that he/she does not wish to become a citizen.
An oleh’s certificate may be denied to persons who:
Since 1970, the right to immigrate under this law has been extended to include the child and the grandchild of a Jew, the spouse of a child of a Jew and the spouse of the grandchild of a Jew. The purpose of this amendment is to ensure the unity of families, where intermarriage had occurred; it does not apply to persons who had been Jews and had voluntarily changed their religion.
Acquisition of Nationality by Residence
Special provision is made in the Nationality Law for former citizens of British Mandatory Palestine. Those who remained in Israel from the establishment of the State in 1948 until the enactment of the Nationality Law of 1952, became Israeli citizens by residence or by return.
According to an amendment (1980), further possibilities to acquire citizenship by residence, were included in the law.
Acquisition of Nationality by Naturalization
Adults may acquire Israeli citizenship by naturalization at the discretion of the Minister of the Interior and subject to a number of requirements, such as:
1.they must have resided in Israel for three years out of the five years preceding the day of submission of the application.
2.they are entitled to reside in Israel permanently and have settled or intend to settle in Israel;
3.they have renounced their prior nationality, or have proved that they will cease to be foreign nationals upon becoming Israeli citizens.
The Minister of the Interior may exempt an applicant from some of these requirements.
BASIC Law- Israel Lands (1958)
Prohibition of transfer of ownership
1. The ownership of Israel lands, being the lands in Israel of the State, the Development Authority or the Keren Kayemet Le-Israel, shall not be transferred either by sale or in any other manner.
Permission by Law
2. Section 1 shall not apply to classes of lands and classes of transactions determined for that purpose by Law.
3. In this Law, “lands” means land, houses, buildings and anything permanently fixed to land.
The law of return clearly applies to Jews only. No gentiles have a right of return regardless of birth, ancestry or other factors. Persons who have a Jewish grandparent but does not identify with Zionist ideologies can also be excluded under the section which talks about a threat to the Jewish nation. Israel is the only country which makes its nationals any Jew regardless of where they live. They acquire automatic citizenship upon demand. They actually have to explicitly refuse such citizenship if they do not want it while residing in the state of Israel as “immigrants.” The English versions posted on these governmental sites use nationality and citizenship interchangeably. However, the Hebrew versions being part of Am Yisrael the Jewish people (Jewish nation) and a citizen of the physical state of Israel are two different things.
One has to recall that the Zionist philosphy is built upon such concepts as Eretz Yisrael, “the promised land”, ” the land of Israel, being a “birthright” that was conferred upon Jews (it is no accident that the latest Zionist venture in America providing free trips to Israel for Jewish American kids is called “Birthright Israel”). The land belongs to the Jewish people and not the citizens of the state. This is the importance of the basic law prohibiting transfer of ownership of lands. The religious justification is that immediately after Abraham passed the test, as outlined in the Genesis passage known as the “Akida”, the Binding of Isaac; after which God (Yahweh) changed Abram’s name to Abraham and made “the promise” of giving the land to Abraham’s descendents through Isaac as an “everlasting covenant”. In the Hebrew Bible, the Tenach (Tenakh), God instructs Abram to “take your son Isaac, your only son (to where I tell you) for a burnt offering.” I won’t enter into a religious argument about Ishmael, conversions etc but the basic laws clearly take a stand on these issues since they do not give a right to a christian family to “return” even if their ancestors were original Hebrews. They do give a right to converts to Judaism to “return.”
The crafters of these basic laws were also very clever and meticulous. For example, they had to find clever ways to prevent the refugees (70% of all Palestinians) from being citizens while allowing the small minority of Palestinians who remained (30% at incredible odds) to acquire Israeli citizenship. The citizenship law was very crafty on this. According to this basic law, you acquire Israeli citizenship by: Birth, The Law of Return, Residence, or Naturalization. For each of these categories, a Palestinain born in a village in teh Galilee and expelled in 1948 does not qualify because of the language used. Let us take the birth section for example. It states:
Acquisition of nationality (in Hebrew citizenship not nationality) by birth is granted to:
1. Persons who were born in Israel to a mother or a father who are Israeli citizens. [Refugee gentile does not qualify]
2. Persons born outside Israel, if their father or mother holds Israeli citizenship, acquired either by birth in Israel, according to the Law of Return, by residence, or by naturalization. [Refugee gentile does not qualify]
3. Persons born after the death of one of their parents, if the late parent was an Israeli citizen by virtue of the conditions enumerated in 1. and 2. above at the time of death. [Refugee gentile does not qualify]
4. Persons born in Israel, who have never had any nationality and subject to limitations specified in the law, if they: apply for it in the period between their 18th and 25th birthday and have been residents of Israel for five consecutive years, immediately preceding the day of the filing of their application. [Refugee gentile does not qualify]
Interestingly these racist laws were extended to even the minority Palestinians who managed at all odds to remain in the newly formed state of Israel (1/4th of the original Palestinian polulation). Absentee laws allowed the Israeli government to declare that non-Jews who had remained in Israel and become “equal” Israeli citizens to be declared absent in order that their property could be confiscated as “abandoned” property and turned over to the Jewish Agency for the exclusive use of Jews (in the law it does not use the word “Jews” but the words “those who benefit from eth law of return” which equals Jews if you read that law above). There have been, in fact, Palestinians who tried to lease their own land and were not allowed to because they were not Jews (see below).
Here is some of what Tom Segev wrote on thsi issue in his book. Emphasis and remarks in brackets are added by me: “the definition in the law was changed to embrace all who had abandoned their ‘usual place of residence’, even if they were still living in [and “equal” residents of] Israel…the law defined them as absentees, even if they had only left their homes for a few days and stayed with relatives in a nearby village or town, waiting for the fighting to end. Later they came to be referred to as ‘present absentees’. The majority of them were not allowed to return to their homes. Those refugees who were permitted to return to Israel after the war were also formally absentees and their property was not restored to them.” (1949: The First Israelis, p80)
On page 81, Segev wrotet: “The Minister of Justice expressed the view that an absentee remains an absentee forever, even when allowed back and so long as he is an absentee his property belongs to the Custodian [of Absentee property], regardless of when or how he acquired the property.” This was specifically regarding a tiny number who had succeeded in purchasing property after they had been declared “absentees”.
Also on page 81, Segev quotes Yohanan Bader, Herut MK: “According to this law, the Israeli army is full of absentees…Every man who went to war on or after November 29, that is to say, left his city – is an absentee, unless he has a certificate to prove that he is not an absentee.” Somehow, though, Jews, no matter why, when or for how long they had left their “usual place of residence”, universally escaped application of this law which was only applied to non-Jews. It is not unusual in Israel for laws which technically apply to all citizens to be applied, by a wink and a nod, selectively along lines of ethnicity and nationality.
Segev goes on on page 81: “The authority of the military governors was also utilized to expropriate lands [from “equal” non-Jewish Israeli citizens]. The military governor would issue an order to expel villagers from their homes, or forbid them entrance to their fields and thereby prevent them from cultivating them. Then the Minister of Agriculture would declare the lands to be uncultivated and use his authority to hand them over to others to cultivate [and these “others” were invariably Jews – quel coincidence!]. In this way Arab farmers lost their lands without actually losing title to them.” This same device has been used extensively in the occupied territories to take land from Palestinians and givethem to Jews. In some cases the land has been mined in order to prevent the Palestinians from cultivating them for the period required by law in order to declare them uncultivated. In this latter case, of course, the action is clearly in violation of international law.
On page 82, Segev quotes M. Porath in a secret report to the Minister of Finance: “…the fact that we are holding the property of legal residents of the country, who otherwise enjoy all the normal rights of citizenship [that is nonsense – these “equal” citizens enjoyed few of the “normal rights of citizenship” accorded to Jews, and were in fact governed by a different set of laws, all of which was in direct contravention of the Israeli Declaration of Independence], is a source of great bitterness and constant agitation among the Arabs who are affected by it. Most of the complaints made by Arabs against our department are made by ‘absentees’ who see their property in the hands of others and can’t bear it. These absentees try by every means to get their lands back, and offer to lease them even at exhorbitant rents. In accordance with the general rule originally established…our office does not lease the lands expropriated by the government to the present absentees [ie non-Jews], so as not to weaken our control over the properties…The number of ‘present absentees’ runs into the thousands, most of them owners of real estate [again, quel coincidence!]. There are already new people living on some of these properties [all of whom were Jews, of course]…Any attempt to return the properties to these absentees would, therefore, adversely affect thousands, or tens of thousands, of settlers…” Of course, it bothered most Israelis very little if at all that the presence of those “new people” living on those properties had “adversely affected” in excess of a million Palestinians.
Continuing on page 82, Segev wrote: “To relieve the resentment of the ‘present absentees’, the Custodian [of “Absentee” Property] proposed that their bank accounts be released to them [note that these “equal” non-Jewish Israeli citizens had also had their bank accounts siezed and they were only released to them in order to “relieve their resentment”, not because it was wrong to sieze the bank accounts of non-Jewish “equal” citizens] , and that a way be found to compensate them for their properties….The government offered to compensate only a few if the property owners and its offers were hardly tempting. Only a few accepted them, and the compensation was generally viewed as unfair.”
(Dr. Mazin B. Qumsiyeh is Chair of the Media Committee, The Palestine Right to Return Coalition)