The Nakba Files is proud to present an online symposium on The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Hart Press), a forthcoming book by Mazen Masri. Masri’s book is an important intervention in ongoing debates over Israel’s legal system and shows that no such debate can ignore the state’s constitutive exclusion of Palestinians.

Earlier this week, we posted an edited excerpt from this book. Below is a response from Hassan Jabareen relating Masri’s work to the jurisprudence of the Israeli Supreme Court. Click here for another response by K-Sue Park bringing a comparative perspective from U.S. history. To read a rejoinder from Mazen Masri, click here.

By Hassan Jabareen

Mazen Masri’s analysis of Israel’s Declaration of Independence – or the Declaration of the Establishment of the State – is an important step forward in the scholarship on Israeli constitutionalism. By highlighting the Declaration’s imagery of “pioneers” who “make the desert bloom,” Mazen highlights the colonial aspects of the Declaration. Indeed, this can be a starting point to open a discussion between classical colonialism such as British rule in India and much of Africa versus settler colonialism.

Classical colonialism legitimizes itself through the claim of promoting civilization, which means to educate and civilize the natives, whereas settler colonialism focuses first and foremost on the “redemption” of the land. The land must be nourished and the colonizers are the answer to that need. Unlike classical colonialism where promoting civilization mostly focuses on the relationship between the colonizers and the colonized peoples, settler colonialism perceives the relationship between the “pioneers” themselves and the land – not with the natives – as the subject of civilization.

Thus, the Israeli Declaration of the Establishment of the State refers to Palestine as a place without any people, which was only waiting for the return of the Jews for more than 2000 years. At the same time, the Declaration reduces the history of the Jewish people in the world to this moment of return. The consequences of the claim of “civilization” in both aspects of colonialism are the same: both justify hierarchical racial relations between the colonizers and the natives, and both policies lead mainly to exclusion.

Israel’s Declaration of the Establishment of the State has both particular and universal aspects. It speaks of the history, claims, and memory of the Jewish people, but it also promises equality for all of the new state’s residents. Many scholars have remarked that there is a tension between the universal and the particular, the “Jewish” and the “democratic” values. Masri’s analysis of the Declaration aims to discover the scope of “We, the People” under Israeli constitutionalism, especially after what is called the Israeli constitutional revolution in 1992. For Masri, despite this lofty civil rights rhetoric, this “revolution” did not change the notion of “We, the People” from an ethnic to an inclusive one.

I wish to add here that based on Israeli Supreme Court decisions, we can conclude that the “Jewish and democratic” values contained in the Declaration and in the subsequent basic laws are in fact, used mainly against the rights of Palestinian citizens of Israel, and thus as a consequence, they are effectively anti-Arab or anti-native. Four important examples illustrate this point.

First, Palestinian citizens of Israel were the first group to make use of the universal aspects of the Declaration in their legal efforts before the Israeli Supreme Court. In one of the earliest cases, Al-Karbutli v. Minister of Defense in 1948, the petitioner was a Palestinian activist from Jaffa who challenged his administrative detention based on the British Defence Emergency Regulations. He argued that the Declaration signalled the birth of a new country and a new legal order based on equal rights and freedoms, and therefore the Court should declare arbitrary British colonial rules as invalid. The Court dismissed this argument, noting that the Declaration’s sole purpose was to announce the establishment of a new state and that it did not have any binding legal status.

Second, in subsequent cases, the Supreme Court nevertheless relied on the Declaration’s ethnic aspects in articulating a set of quasi-constitutional values, citing the “Jewish character” of the state to abrogate Palestinian rights. For example, in several cases regarding the Arab nationalist group, the Al-Ard Movement, in the 1960s the Court upheld the Israeli authorities’ decisions that restricted the group’s freedom of expression. Ultimately the Court banned the group from participating in the Knesset elections, and the government outlawed it. In doing so, the Court perceived the ideological challenge to the ethnic values of the Declaration such as demanding the right of return for the Palestinians or full equality between the two peoples as a security threat as such. My colleague Suhad Bishara has written about this case and its link to the outlawing of the Islamic Movement’s Northern Branch in 2015.

Third, in other cases that involved Jewish activists, the Supreme Court used the Declaration’s universal aspects as a source for interpreting new laws to strengthen the fundamental principle of freedom of expression. As I will explain below, in general, we may conclude that in the cases involving Jewish citizens’ individual rights, the Court has relied on the Declaration’s universal aspects to protect their civil rights; but when Palestinian citizens’ individual rights were at stake, the notion of ethnicity was relied upon to limit civil liberties.

The most significant cases highlighting this different approach are those regarding Palestinian citizens’ participation in the Knesset elections in the last 20 years. In almost every election and since the late 1990s, the Knesset’s Central Elections Committee has attempted to ban Arab candidates or Arab political party lists from participation in the elections, based primarily on the argument that they advocate for “a state for all of its citizens,” which negates the Declaration’s principle of establishing a Jewish state.

While the Supreme Court has dismissed these attempts at disqualification on procedural grounds, it agrees in principle with the claim that a state for all of its citizens negates the Jewishness of the state. Despite the fact that Jewish ultra-orthodox parties are anti-Zionist in some aspects, the Knesset has never used the ethnic values of a Jewish-Zionist state to limit their participation.

Fourth, the latest racial legislation enacted by the Knesset strongly indicates this attitude. Today, both the Israeli Jewish and the Palestinian public in Israel agree on one important thing: the purpose of the legislation that incorporates the values of “Jewish and democratic” is to limit Palestinian citizens’ rights. The recently enacted “Nakba Law” is a good example. The law imposes administrative sanctions against an individual or an association that commemorates Israel’s Independence Day as a day of mourning (Nakba Day) or challenges the values of Israel as a “Jewish and democratic” state. The Supreme Court dismissed a petition challenging the constitutionality of this law based on procedural arguments, but without ignoring the fact that this law is mainly about limiting Palestinian citizens’ freedom of expression.

These examples, as well as Mazen’s book and his analysis of the “We, the People” under Israeli constitutionalism, illustrate the colonial aspects of the Declaration. The legal practice shows that the Declaration’s values have led to different civil rights protections based on national belonging, and not based on equal citizenship. As I argue in a recent article, this explains why the constitutional values of the state as a “Jewish and democratic” state negate Palestinians’ equal rights and are anti-Arab in their nature and practice.

Read the complete symposium on Mazen Masri’s The Dynamics of Exclusionary Constitutionalism:

BOOK EXCERPT: Mazen Masri, “Israel’s Colonial Declaration of Independence

RESPONSE: Hassan Jabareen, “Why ‘Jewish and Democratic’ Values Negate Palestinian Equal Rights

RESPONSE: K-Sue Park, “The Colonial History of Social Contracts

REJOINDER from Mazen Masri, “Future Directions in the Study of Law and Colonialism in Palestine