May 15 marked the 58th anniversary of Al Nakba (The Catastrophe). Every year, Palestinians recount the tragedy of 1948.

I recall my grandmother’s anguish: she was seven months pregnant with my mother when she was forced to flee to Lebanon by boat. She waited in Lebanon. The weeks turned into months. The months turned into years . . . Fifty-eight years later, my grandmother has yet to return to her house in Jaffa.

When the Zionists forces (the Haganagh, Irgun, and Stern Gang) tore Palestine limb from limb, depopulating villages, uprooting cemeteries, and pillaging arable fields, Israel had not even been created. Today we see a fight for Israel’s "right to exist." But what right does Israel have to exist in its current form?

United Nations (UN) Resolution 194 states,

"The refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return."

Israel’s admittance into the UN was conditional: it must recognize UN Resolution 194. Nevertheless, since the passing of UN Resolution 273 -- which admitted Israel into the UN on May 11, 1949 -- Israel has openly rejected this requirement. Commenting on Israel’s dismissal of the resolution, Professor of Law Francis A. Boyle wrote in his book Palestine, Palestinians and International Law, "Insofar as Israel has violated its conditions for admission to UN membership, it must accordingly be suspended on a de facto basis from any participation throughout the entire United Nations system."

Yet, the world hasn’t seen one UN resolution concerning Israel enforced by the UN or the international community. America specifically refers to "countless" UN resolutions Iraq refused to comply with as a major reason to invade in 2003. If America were to invade Iraq on this reasoning, one would think they would at least attempt to enforce the UN resolutions pertaining to Israel.

The implementing of UN Resolution 194 was the condition for Israel’s "right to exist." Today we see many more factors that should make one contemplate this right. Israel illegally occupies East Jerusalem, the West Bank and the Gaza Strip. Post-disengagement, Israel continues to occupy Gaza through control of borders, air, water, and resources. According to the Israeli newspaper Haaretz, since March 31 of this year, Israel has fired more than 5,100 artillery shells at Gaza.

The occupation is illegal under international law and UN resolution 242 (reaffirmed by resolution 338). UN resolution 242 explicitly states that Israel must "withdraw from territories occupied." On this basis, before going into the brutality of the occupation, one cannot expect the Palestinian Authority to recognize Israel’s "right to exist."

Furthermore, Israel exists today as a Jewish state and not coincidentally a racist state. The Palestinians living inside Israel are second-class citizens. Discriminatory laws are in place regarding religion, marriage, and land ownership. Access to education, jobs and economic stability has been hindered due to successive Israeli administrations' prejudiced policies. One cannot expect those in the Occupied Territories to recognize Israel, if Israel as a Jewish state does not recognize the rights of one in five of its citizens.

Just this week the Israeli High Court voted down a law that would instate "family reunification," the unifying of Palestinians living outside of Israel with their spouse living inside Israel. This is one more policy that tries to force those living inside Israel to emigrate to the Occupied Territories or elsewhere. One father who has been trying to get Israeli citizenship since 2004 to reunite with his wife and two daughters, asked the Israeli newspaper Haaretz, "How do you explain to a five-year-old girl that daddy won't be home because of a law?"

The discriminatory policy of the government is emblematic of the feeling in Israeli society. A recent poll conducted by the Israel Democracy Institute found that 62 percent of Israelis prefer that their government promote the emigration of the Palestinian population living inside Israel. Electronic Intifada, a website that covers the Israeli/Palestinian conflict from the Palestinian perspective, published a piece by I’lam, "the only media centre for the Arab minority in Israel," which stated, "Recent polls have shown that, while on average 40 per cent of Israelis want Arab citizens forced to leave the country, that figure rises close to 60 percent when respondents are asked, more ambiguously, if they want the Arab population 'encouraged’ to emigrate." Israel’s systemic desire for the separation and future dispossession of its Palestinian citizens is yet another reason to question its "right to exist" in its current form.

It is particularly absurd for Israel and the West to call upon the Palestinian government to recognize Israel when Israel refuses to recognize the Palestinian people. Take for example the policy implemented during the Oslo years, a policy that continues today. During the Oslo years settlements expanded at an inordinate rate with a clear mission to expand the borders of Israel, jeopardizing the possibility of a future Palestinian state on 22 percent of historic Palestine -- the internationally recognized 1967 borders.

Today we see Kadima’s plan for the recognition of the Palestinian people: Judaize Jerusalem (while permanently dispossessing as many Palestinians as possible though extensions and encirclements of the Apartheid Wall), expand and connect desirable and densely populated settlements, and extend the policy of unilateralism, thereby hindering any opportunity for cohesion, reconciliation or negotiations. The border policy of Israel is compounded with a 38-year occupation, which includes land confiscation, home demolitions, permanent checkpoints, flying checkpoints, curfews, expropriation of vital resources such as water, strip searches and various acts of humiliation and collective punishment.

On the physical front, Israel has illegally detained thousands of Palestinians (in most cases torturing them), extrajudically assassinated hundreds of Palestinians, killed hundreds of women and children, and has fired thousands of artillery shells into the Occupied Territories. This course of action continues unabated, while the world sits idly by. Furthermore, the illegal settlers in the Occupied Territories abuse the Palestinian population with virtual impunity. Thousands of cases have surfaced where settlers have beaten Palestinians, thrown rocks at their children on their way to school, killed family livestock, and burnt down or uprooted their olive trees. The Israeli government has done nothing to stop these actions.

On the other hand, the Palestinian Authority has complied with the Sharm al-Sheikh cease-fire and has maintained the agreement well past its expiration only to be met with an economic and political boycott by Israel and the international community. Israel and the West’s policy of not recognizing the Palestinian people have driven up the figures of unemployment, poverty, and malnutrition.

The most significant point of hypocrisy is Israel and the West’s double standard regarding the governments in the conflict. If the world is to believe that Israel does not have to recognize Yasser Arafat or a Hamas-led PA because they are terrorist entities, would Israel not be held to the same standard? Their policies and tactics are in direct violation of international law and the Geneva Conventions, while their practices have been criticized by every major human rights organization in the world, not to mention the Hague’s critical ruling on the Apartheid Wall. Israel does not recognize the Palestinian Authority, not based on their refusal to recognize Israel, but on Israel’s summation of what the PA represents. Should the PA not be able to make the same assessment?

No people, surely no occupied people, should be expected to recognize Israel under these conditions. The international community should not demand the Palestinians recognize Israel, but ask themselves an important question: given the circumstances does Israel have a right to exist?

Copyright © 1998-2006 Online Journal

Source:
onlinejournal.com

Summary: Israel does not have a written constitution, even though according to the Proclamation of Independence a constituent assembly should have prepared a constitution by October 1, 1948. The delay in the preparation of a constitution resulted primarily from problems that emerged against the background of the alleged clash between a secular constitution and the Halacha (the Jewish religious law).

Introduction

Despite what the Proclamation of Independence of the State of Israel states regarding the preparation of a constitution by the Constituent Assembly, Israel has no written constitution in the formal sense, even though it has a constitution in the material sense - in other words, laws and basic rules that lay down the foundations of the system of government and the rights of the individual. Some of these are formulated in basic laws, some are scattered in other laws, and part - at least until the passing of basic laws dealing with human and civil rights - were interpreted and formulated in a series of decision by the Supreme Court.

There were those who were inclined to view the Proclamation of Independence as a constitution, since it dealt with the foundations of the establishment of the state, its nature, part of its institutions, the principles of its operation and the rights of its citizens. However, in a series of decisions the Supreme Court ruled that the Proclamation of Independence does not have the validity of a constitutional law, and that it is not a supreme law, in light of which laws and regulations that contradict it are nullified. Nevertheless, article 1 of the Basic Law: Human Dignity and Liberty and of the Basic Law: Freedom of Occupation relates to the principles mentioned in the Proclamation of Independence as a normative source. According to this article "the basic human rights in Israel are based on recognition of the value of man, the sanctity of his life and his being free, and they will be respected in the spirit of the principles (mentioned) in the proclamation of the establishment of the State of Israel."

The debate in the First Knesset on the issue of the constitution Even before the establishment of the state, the National Council Executive set up a committee, headed by MK Zerah Warhaftig (Mizrahi), to deal with the issue of the constitution. However, already in this committee it becameapparent that the work of preparing a constitution would not be easy. The first Knesset held several debates on the issue.

The arguments in favor of a constitution

The main arguments in favor of a constitution were: the fact that the founders of the state favored the preparation of a constitution and the explicit declaration to this effect in the Proclamation of Independence; the need for a document that would bind all the state institutions, including the legislature, and would serve as the basis for the rules by which the state functions; the need to respect resolution 181 of the United Nations General Assembly of November 29, 1947, which dealt with the plan for the partition of Palestine into a Jewish and and Arab state. The resolution called for the preparation of a democratic constitution by a Constituent Assembly, which was to include instructions relating to the preservation of the basic rights of the state's citizens; the fact that most states have constitutions; the educational and cultural value that is embodied in a constitution, to the light of which the younger generation can be educated and which serves as the state's visiting card; the value of a constitution in advancing the "melting pot" process; and the value of a constitution as an expression of the revolution that took place in the life of the Jewish people.

The arguments against a constitution

The main arguments put forward by those opposed to the constitution, headed by David Ben-Gurion and the religious parties, were: the idea of the constitution developed in previous centuries, against the background of social and economic struggles that no longer exist; despite and perhaps even because of the absence of a written constitution in Great Britain, the rule of law and democracy there are solid, and civil freedoms are upheld; the Proclamation of Independence includes within it the basic principles of any progressive constitution, and the Transition Law of 1949, which was passed by the Constituent Assembly, constitutes a fulfillment of the state's obligations towards the The United Nations on this issue; only a minority of the Jewish people is in Israel, and the state does not have the right to adopt a constitution that will bind the millions that have not yet arrived; because of the nature and special problems of the state, it is difficult to reach a consensus regarding the spiritual principles which are to shape the image of the people and the essence of its life, and the debate about the constitution could lead to a cultural war between the religious and secular communities; the State of Israel is in the midst of a continuous process of change and crystallization, and this does not go together with a rigid constitution.

The Harari Proposal

At the end of the debate, on June 13, 1950, the Knesset decided to adopt a resolution known as "the Harari proposal", named after MK Yizhar Harari of the Progressive Party, who proposed it. According to this proposal "the First Knesset assigns to the Constitution, Law and Justice Committee the preparation of a proposed constitution for the state. The constitution will be made up of chapters, each of which will constitute a separate basic law. The chapters will be brought to the Knesset, as the Committee completes its work, and all the chapters together will constitute the constitution of the state." Following the passing of this resolution, the Constitution, Law and Justice Committee set up a sub-committee on the Constitution.

Source:
The Knesset

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