“We declare the establishment of a Jewish state in Eretz Israel, to be known as the State of Israel,” declared the People’s Council that convened in May 1948, and then written in the Declaration of Independence. The nature of the State of Israel, its principles, and the nature of its regime was supposed to be determined by the “Constituent Assembly” through adoption of a constitution no later than October 1, 1948. This promise to the United Nations, however, was never fulfilled, and instead the Constituent Assembly which was elected in January 1949, enacted the “Transition Law,” which stated that it had become a “Knesset” (The Israeli parliament). The Constituent Assembly failed its duty.

In the absence of a constitution defining their rights, citizens had to settle for the same brief line that became the constitutional basis of Israel. It promised to maintain “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.” The word democracy, today proclaimed by everyone, was not even mentioned in the declaration of independence.

Today, 75 years since that historic announcement, the word constitution is on everyone’s lips. The constitutional crisis that split Israeli society in two has given rise to a new recognition among those, whose freedom and way of life this constitutional coup threatens, that their democracy is extremely fragile and must be safeguarded through a constitution that will guarantee the foundations of Israel’s democratic regime. So far, the place of the constitution has been filled by a series of basic laws enacted in the late 1990s, headed by the Basic Law: Human Dignity and Liberty. Relying on this law, Judge Aharon Barak drafted numerous constitutional rulings in what is dubbed the “constitutional revolution,” which angered the ultra-orthodox parties, religious Zionism and the right in Israel due to their liberal approach.

The Declaration of Independence did not clearly establish the relationship between religion and state in Israel. The multitude of Shabbat laws that directly impinge on individual freedom and express religious coercion exerted on the secular public, are based on the status quo letter written by David Ben-Gurion to the ultra-orthodox “Agudat Israel” political party, which establishes Shabbat as the official day of rest. David Ben-Gurion announced the establishment of the state, but left a black constitutional hole that swallows up the entirety of Israeli society. As Aaron Barak’s constitutional revolution expanded, so did democracy at the expense of religion. It is not only about Basic Law Freedom of Occupation that anchors the opening of supermarkets and public transportation on Shabbat, equality in the burden of serving in the army for ultra-Orthodox youth, laws that allow combat service for women and recognize same-sex married couples. It is also about opening the doors of the Supreme Court to the Arab public in a series of issues concerning their status in the country.

All of these were an attempt to adapt Israel to the twenty-first century, and to normalize it among the family of nations as a democratic state. However, the more the Supreme Court expanded the space of democracy, the more its position was criticized among a growing segment of citizens who were brainwashed by national and right-wing religious demagoguery. In their eyes, and through relentless propaganda, the judiciary came to be seen as the chief obstacle to governance. The more the status of the Supreme Court was undermined, so did the internal division within Israeli society, which today has reached the boiling point. It turns out that the attempt to expand and interpret the Declaration of Independence only deepened the gap between liberals and conservatives. The conservatives strove with all their might to turn Israel into a Jewish state, as stipulated in the Declaration of Independence, while minimizing its democratic character. According to the right-wing view, democracy is reduced to rights of the Jewish citizens only. Any decision of a constitutional or political nature that does not receive the support of a Jewish majority becomes illegitimate.

The assassination of Prime Minister Yitzhak Rabin was considered the opening shot for creating a new Israeli consensus. The Oslo Accords did not win a Jewish majority in the Knesset and since the majority was achieved with the support of Arab MKs, the accords were illegitimate in the eyes of the right and religious Zionists and the road to political assassination was extremely short. From that historical moment, the Israeli right pushed the liberal opposition into a corner. The demonization of the Knesset’s Arab factions rendered it illegitimate to rely on them to form a ruling coalition. The Naftali Bennett-led Government of Change, which was established in June 2021 with the Islamic movement and disintegrated a year later, was completely boycotted by Netanyahu and his partners. Three members of Bennett’s own right wing faction abandoned him, unable to justify their alliance with an Arab party. Their crossing over to Netanyahu, led to the government’s ultimate collapse.

This consensus is so entrenched that Yair Lapid, the candidate to replace Netanyahu should the latter’s government fall, promises he will not rely on votes of the Islamic movement to obtain a majority, and will allow it into a future coalition only after securing a majority from among the Jewish factions. The protest movement against the right-wing coup also operates by this same principle. The struggle is “inter-Jewish” and there is no place in the protest for Arab citizens, lest the protest be perceived as illegitimate and unpatriotic in the eyes of the general public.

To emphasize the Jewish nature of the country, over its democratic character, the right-wing had to reiterate 70 years after the declaration of independence that “the State of Israel is the nation state of the Jewish people.” In the Nation-State law approved by the Knesset on July 19, 2018, by a majority of 62, 55 against and 2 abstentions, there is no mention of Israel as a democratic state that grants equality to all its citizens. The Arab citizens were thus denied any part in determining the fate of the country. They are allowed to vote, but not to influence its course.

The coup d’état of Religious Zionism (party of Betzalel Smotrich) goes one step further, acting to disqualify the Arab lists from participating in Knesset elections at all. Its rage is lashed at the Supreme Court, which overturned the Central Election Commission’s decision to disqualify one of the three Arab parties” the National Democratic Assembly (Balad) faction. According to all polls, and despite an increase in support for the Yesh Atid party, Yair Lapid cannot obtain a majority to form a government without including the Arab parties. His promise not to rely on the Arabs to form the government is based on the hope that, after Netanyahu’s departure from the political arena, he will succeed in forming a centre-right government with the remnants of the Likud party. Without a change in the paradigm stated in the Nation-State law, the result will be: neither a constitution nor democracy for all, but the preservation of the oxymoron, defining Israel as a Jewish and democratic state. The relationship between religion and state and the relationship between the state and its Arab citizens will remain in limbo.

Therefore, it is quite possible that Yair Lapid’s hopes will be dashed. The liberal current of Israeli society is currently going through such a deep transformation that it might push its leaders to determine that the democratic foundations are the basis for the state’s existence and future.

Added to all this is the fateful question of what will be the place of the Palestinians under Israeli control. Religious Zionism and the entire right strive to impose the Israeli law to what has become in the eyes of the Israeli public “Judea and Samaria.” The first step in this direction was made with the transfer of the Military “Civil Administration’s” powers to Minister Bezalel Smotrich, thus forgoing the Israeli claim that the territories are held by Israel until a solution is found in the future.

As the two-state solution is no longer relevant, today all opponents to the occupation have come out with the slogan, “Democracy for all from the Jordan to the Sea.” This is indeed a correct and legitimate demand, but its realization is only possible in one state, where a liberal and democratic Israeli and Palestinian majority can realize it. This could be  based on the establishment of that forgotten Constituent Assembly which never convened, but this time not to establish a theocratic Jewish state but a democratic state that includes all the people living between the Mediterranean Sea and the Jordan River. Relying  on religious and nationalists to ensure a Jewish majority brought us to today’s constitutional crisis, as well as the recognition of the fact that without democracy for the Palestinians, there will be no democracy for the Jews.

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The January 27 attack in Neve Ya’akov, which caused the death of 7 civilians, did not prevent the Israeli protest organizers from taking to the streets and shouting slogans for democracy and against dictatorship. Brigadier General David Agmon, who previously served as director of Netanyahu’s office, blamed the government and its leader for all ills of Israeli society. “We are becoming a dictatorship”, “Hungary” and “the end of democracy” were just some of the slogans chanted. The division in the nation has never been deeper.

Thousands of Israeli blue and white flags in the protest demonstration could not hide the fact that the country is divided into the settlers’ “Yehuda” and the “Israel” of the liberals.  Threats of ‘civil war’ and ‘civil uprising’ were also thrown about, so much so that President Herzog publicly called for a cooling of the heated public discourse. Then, on Monday, three days after this impressive display of internal division and irreparable rift, the rivals united in the Knesset, in an impressive display of patriotism, to vote together on a law which would strip citizenship or residency status from terrorists.

Among initiators of the law were Knesset members from the Right coalition (64), and an overwhelming majority of 89 MKs from all the Zionist factions. Among them were Naama Lazimi, Gilad Kariv and Efrat Reiten from the Labor Party while the faction’s leader, Merav Michaeli, was absent. Reiten told Haaretz that “when the legal advisors from the government, the Knesset and Defense Ministry attested that the bill meets the legal examinations of the State of Israel and international law, and is an ‘effective tool to fight terrorism’ according to the Ministry of Defense committee representatives, Labor decided to back the law in its first reading”.

“The legal tests of the State of Israel,” according to Efrat Reiten, were determined by the High Court of Justice. Court President Esther Hayut, the main victim of the coup d’état led by Netanyahu, stated that: “There is no constitutional impediment to denying citizenship to those convicted of crimes that violate the trust of the state.” This decision, established already in 2008, was accepted by an expanded panel of seven judges – headed by Hayut herself. The panel determined that the denial of citizenship is permitted, among other things, for crimes of treason, terrorism or espionage (“Haaretz” July 25, 2022).

In other words, this law has been around for years, and was re-enacted during the days of the “government for “change”, whose members and supporters are today taking to the streets to defend the Supreme Court. The High Court of Justice does not bother with rulings and legal quibbles when approving bills that satisfy the feelings of revenge and hysteria of Israel’s fascist right. Yet with food comes an appetite, and the racist legislation towards Arabs – the scarlet letter of which is the Nation State Law – provides legitimacy to continue enacting more and more laws and reforms that will determine the Jewish nature of the country at the expense of its democratic one.

It is clear that the law negating citizenship of an Arab on the basis of disloyalty to the state is the beginning of a small-scale ethnic cleansing. Yet future steps will not stop there. They will expand to include anyone who protects the human rights of “those Arabs,” and will eventually harm those who “betray the Jewish religion and tradition.”

The difference between the fascist right and the liberal opposition is obvious. The right is militant, advocates for a clear agenda, works consistently to achieve its goals, and knows how to put the opposing camp in a state of constant defensiveness. In the year and a half of the “government for change”, Netanyahu sat on the opposition bench and worked tirelessly to thwart any legislation, no matter what its nature: from legislation designed to eliminate the need for an American visa to the extension of a regulation concerning the legal status of settlers.

In contrast, today’s opposition lacks any agenda, has no position regarding solution of the Palestinian question and the desired economic and social regime. In fact, it accepts the foundational assumptions of the right, that there is no partner and no solution to the Palestinian question, that the neo-liberal economy is a doctrine from heaven, and that social gaps are an acceptable phenomenon. It knows what it doesn’t want, but has no vision for the future. It aspires to return to the good old Israel, to the Jewish and democratic Israel that lives in peace with the occupation and with the denial of the most basic rights of five million Palestinians.

Thus, with their own hands, those parties which voted together with the fascists in favor of the law denying citizenship to Arabs have reduced the democratic space that allows them to live their lives, and which is disappearing under the right’s coup. Israeli fascism reveals the terrible distortion in which Israeli society lives. This is a false democracy based on the rulings of the High Court, which indeed favored LGBTQ and ultra-Orthodox, and sometimes also Arab citizens, yet created the legal basis for the military occupation of the West Bank and Gaza. It was the High Court of Justice that approved the daily injustices against the Palestinians (home demolitions, land expropriation, whitewashing of settlements) and thus destroyed the grounds for democracy, equality, and the basic right of a person to her body, dignity and property.

The tragedy is that the coup d’état intended to harm everyone who advocates democracy and a liberal society, along with the rise to power of messianic forces such as Smotrich and Kahanists like Ben Gabir, did not encourage the opposition to rethink and ask itself – how did we get here? The vote of liberals from the former Government for Change  in favor of the constitutionally dubious law, together with the fascists, points to the moral and ideological shallowness of the opposition. The latter refuses to recognize that over the years the hatred of Arabs turned into hatred of Ashkenazis, LGBTQ, liberals and secularists, and that this eventually translates into fascism as is reflected in the current judicial “reforms”.

Democracy is undoubtedly a fundamental platform on which to build a broad political movement against fascism. Yet democracy is not a system suitable only for the Jews. It has to encompass any nation that strives for freedom and economic, social and cultural progress. This system must invite into it all those forces in Palestinian society who are tired of the dictatorship and corruption of the Palestinian Authority, and the religious extremism of Hamas.

The two-state idea faded over 50 years of occupation. Geography and economics united the destinies of Israelis and Palestinians in an unbreakable bond. The rising fascism in Israel, on the one hand, and the disintegration of the Palestinian Authority on the other, will force the democratic forces on both sides to seek a common solution.

All those who oppose the messianic extremism of the fascist right in Israel, and all those who oppose the messianic extremism of the Palestinian right, are natural candidates for cultural discourse, broad agreement and partnership for building a common future in one democratic country between the Jordan and the Mediterranean Sea.

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