The Unmaking of Israel (4 page)

At first, Israeli officials still thought in terms of the partition lines, and were entirely uncertain about how to treat the additional territory. In the Jewish coastal town of Nahariyah, the Interior Ministry’s district administrator—a Jew who had formerly been the British district officer—reported that he initially kept a low profile. The western Galilee—the northwest corner of Palestine—was not officially part of the state. However, he decided to keep the public health service running, collect Israeli income tax, and try to reconstruct the British land registry documents, which had gone missing in the wartime change of power. In September he was told that the government had applied Israeli law to Israeli-held territory outside the partition lines. He was charged with overseeing Jewish towns in his area. A military government had responsibility for Arab ones.

Finally, between February and July 1949, Israel signed armistice agreements with Egypt, Lebanon, Transjordan, and Syria. The accord with Transjordan angered Israeli hard-liners on the left and right. Yigal Allon, now the commander of the southern front, sent a note to Ben-Gurion just before the agreement was signed, asking permission for a lightning operation to shatter Transjordan’s army and take the land it held on the West Bank of the Jordan River. Allon gave reasons of military necessity, but was really expressing the ideology of his Ahdut Ha’avodah (Unity of Labor) party, a wing of Mapam. Despite their hostility on other issues, Ahdut Ha’avodah shared with the Revisionists a belief in the Jewish right to the Whole Land of Israel. One of Allon’s acolytes, the poet Haim Gouri, has described him as “the armed prophet of the Whole Land.”

Ben-Gurion rejected Allon’s proposal. In the newly elected parliament, that decision was the basis for the first motion of no confidence in the government—submitted by Menachem Begin, now head of the Herut (Freedom) party. Ben-Gurion’s response was that ruling the Whole Land, with its large Arab population, meant either giving up democracy or not having a Jewish state. The motion failed. The armistice lines—standardly printed in green on maps except where they matched the international borders of former British Palestine—became Israel’s de facto borders.

If the
Altalena
episode marked the actual beginning of statehood, parliamentary democracy began with the elections of January 25, 1949. Electing a legislature, I should note, was not the announced purpose of the balloting. Officially, voters were choosing the Constituent Assembly, which, in accordance with the UN’s instructions in the partition plan, would write a constitution. But it was already obvious that disputes over the country’s political direction and the state’s relation to religion would prevent quick agreement on a constitution. Two days after the assembly convened, it voted to turn itself into the Knesset, or parliament. It gave itself the power to approve a government and to dismiss it by voting no confidence.

The election was proportional: the entire country was one district, voters cast ballots for parties, and the parties divided up 120 seats based on their percentage of the vote. That was the system used in Zionist organizations before independence. But it still made sense afterward; the divisions that mattered were not regional. Israel, at its birth, was not a federation of colonies or principalities. It was a confederation of political factions, of ideological tribes, some of which functioned nearly as states in themselves. The Histadrut labor union, dominated by Mapai and Mapam, ran its own school system, health-care organization, bank, building company, and more. Other parties controlled similar bodies, usually on a smaller scale. There were two other Jewish school systems—a “general” one, which was actually tied to the procapitalist General Zionist Party, and an Orthodox system, linked to two religious Zionist factions, the bourgeois Mizrahi party and the proletarian Hapoel Hamizrahi. Soccer clubs and other sports teams were ideologically identified—labor, religious, rightist. The electoral system had to give representation even to small ideological tribes so that they could conduct gritty democratic politics—compete for votes, bicker, dicker, and strike deals—rather than leave them no place to press their demands except the streets.

The parties represented in the first Knesset ranged from the Communists to the far-right Fighters List, founded by Lehi veterans. One of the Communist legislators was a young Arab, Tawfiq Toubi. Two other Arabs represented the Democratic List of Nazareth, which was actually a Mapai auxiliary. Mapai, led by Ben-Gurion, won a plurality but not a majority. Creating majority backing in the Knesset for a government required building a coalition of several parties—as has been the case ever since.

On paper, Ben-Gurion’s simplest choice in early 1949 was an alliance with Mapam, the other party of the Zionist left. But Ben-Gurion was tilting toward the United States. Mapam favored “the world of revolution.” It sought to nationalize industry; Mapai tolerated a mixed economy. Mapam demanded control of the Defense Ministry, the last thing Ben-Gurion wanted to give it. On the other hand, Mapam wanted a written constitution to restrain the ruling party’s power, and Ben-Gurion did not.

Not only did Mapam remain in opposition but Ben-Gurion used the security services to spy on its leaders and bug their offices. In late 1949 he dismissed thirty-one-year-old general Yigal Allon as commander of the IDF’s southern front. Allon said that Ben-Gurion made clear to him that “my movement and ideological comrades were suspected of disloyalty to the state’s security and independence.” As its main coalition partner, Mapai took the United Religious Front, an alliance of four Orthodox parties. The Orthodox parties tended to keep their demands to issues of religion and state, leaving Mapai to run everything else. At the time, this seemed like a low-priced political bargain.

Domestically, Ben-Gurion pursued a policy called
mamlakhtiut
, which translates very roughly as “statism.” Practically, it meant that the state rather than the party fiefdoms should provide services. The consolidation of the military was to be only the first step. The goal was to replace the pre-state confederation of parties with the shared, neutral framework of the state. Then again, as ruling party, Mapai ran the state. Opposing parties on both the right and left charged, with some justification, that the prime minister’s real motive was to put all power in Mapai’s hands. Another criticism of
mamlakhtiut
is that as a slogan and philosophy, it presented the state of Israel as a value in itself, the ultimate expression of Jewish identity and the fulfillment of Jewish history. In the long run, it seems to me, the deification of the state was even more dangerous than the potential concentration of power.

The practical policy, in any case, was hard to implement. In September 1949, the Knesset enacted free, compulsory education through age thirteen. But it left the schools in the hands of four party-run systems—the three existing ones plus a new one set up by Agudat Yisrael, an ultra-Orthodox party that opposed Zionism. Furious competition began over who would educate the children of Jewish immigrants pouring in from Europe and Middle Eastern countries. Ben-Gurion’s coalition with the Orthodox parties collapsed over the issue. New elections were held just two and a half years after the first ones.

In the meantime, the Knesset decided not to write a constitution, or at least not all at once. Instead, it would pass “basic laws” from time to time that would eventually add up to a constitution. That job has never been completed. The parliamentary system remained in place. In principle, the majority in parliament held nearly unlimited power.

Yet if democracy means more than elections and majority rule—if it also means protection of individual and minority rights, if it guarantees free debate and prevents arbitrary government action—then the actual birth of Israeli democracy might be dated to October 16, 1953. On that day, the Supreme Court handed down its judgment in the case of the Communist Party’s Hebrew newspaper
Kol Ha’am
(Voice of the People) and its Arabic sister paper,
Al-Ittihad
(The Union).

The case actually began with a report published in the privately owned, quite capitalist
Ha’aretz
daily in March of that year. The news item quoted Israel’s ambassador to the United States, Abba Eban, as saying that “Israel could deploy 200,000 soldiers on the United States’ side in case of war” with the Soviet Union. At the time, that would have meant deploying one out of every eight Israelis in the hypothetical conflict. Two weeks later, speaking in the Knesset, Prime Minister Ben-Gurion dismissed the story as a “journalistic fabrication.”

By then, both of the Communist newspapers had published editorials denouncing Ben-Gurion and Eban of “trafficking in the blood” of young Israelis to satisfy their American masters. The Hebrew version pledged to “escalate the struggle” for Israel’s independence; the Arabic version also promised struggle, but for “bread, work, independence and peace.” The government was not happy with that rhetoric. The Interior Ministry issued orders closing
Kol Ha’am
for ten days and
Al-Ittihad
for fifteen. Both immediately went to court to block the orders.

The legal fight pitted two legacies of British rule against each other. One was the 1933 Press Ordinance, a routinely repressive colonial decree that empowered the British high commissioner—now replaced by the interior minister—to close a newspaper for as long as he saw fit if he believed it was “likely to endanger the public peace.” The ordinance was typical of Israeli laws, especially those inherited from the British, in the immense latitude it gave government officials.

The other legacy was the Supreme Court’s function as the High Court of Justice, a role in which it heard requests by individuals for the redress of alleged injustices by the government. Such requests went directly to the High Court. The original reason for that arrangement was also colonial: under British rule, most judges on lower courts were Jewish or Arab. But Palestine’s highest court had only one token Jew and one Arab; the other justices were British—and the law channeled any challenges to official actions directly to the tribunal that could be trusted to protect British interests. With independence, the institution remained, but was now composed of Israeli justices. The common citizen could go straight to the highest court in the land to challenge an executive action.

A three-justice panel was (and still is) assigned to High Court cases. The panel in the
Kol Ha’am
case was headed by the American-born and -educated Shimon Agranat, who also wrote the unanimous opinion. Agranat had neither a written constitution nor a bill of rights on which to rely. But—as legal scholar Pnina Lahav has shown in her biography of Agranat—he used daring legal reasoning to overturn the orders to close the papers.

Agranat opened with a philosophical argument that freedom of expression is fundamental to democracy. To prove that a free market of ideas serves the common good by “clarifying the truth so that a country might choose the wisest goal,” he cited American legal thinkers, including Judge Learned Hand. To demonstrate that free speech is “the condition for the realization of almost all other freedoms,” he reached back to John Milton’s classic
Areopagitica
and John Stuart Mill’s
On Liberty
.

The ruling then cited the promise in Israel’s declaration of independence that the state would be “based on freedom.” Though the declaration was not a constitution, he said, it still “expressed the people’s vision and creed” that Israel should be a democracy. The court was obligated to interpret laws, including those inherited from the British, in that light. In doing so, it could learn from the experience of other democracies, Agranat wrote. With that, he introduced American precedents based on First Amendment law. Before closing a newspaper, the minister had to conclude that the danger to public order was “close to certain.” Moreover, the court could review and overturn the minister’s decision. The
Kol Ha’am
and
Al-Ittihad
editorials did not meet the probable-danger test, Agranat concluded. The High Court overturned the closure orders.

The
Kol Ha’am
ruling was both a modest beginning and a breakthrough. The Press Ordinance remained on the books. The Israeli media remained subject to military censorship, also a product of British regulations. It would take nearly forty more years before the Supreme Court asserted its authority to overturn laws. Nonetheless,
Kol Ha’am
established freedom of speech as a principle of Israeli law. As Lahav has written, the decision also became “the model for judicial review” of the executive’s discretionary powers. The government was bound by legal standards; it could not rule by whim.

Besides Agranat’s courageous judicial activism, what’s striking in the
Kol Ha’am
case is the behavior of Ben-Gurion’s government. There is an endless Israeli debate about whether Ben-Gurion was an autocrat or a democrat, a dispute unlikely to be resolved because it originally took place within him. In this drama, he played the autocrat in the first act, the democrat in the last. Suspending publication of the newspapers, the government was unabashedly ready to stifle dissent. Yet it accepted the court’s intervention. Since the judiciary’s power exists only to the extent that the executive obeys its decisions, the government empowered the court. It acceded to a first, fragile set of checks and balances.

Israel “was founded as a democracy and is still a democracy, which makes it something of an exception,” wrote political scientist Peter Medding in 1990. As of 1980, he noted, only twenty-one countries in the world had remained continuously democratic since World War II, or since their founding if that came later. In fact, Israel was the only country on the list founded after 1945. The military had not taken over (though General Ariel Sharon did suggest a coup to other generals just before the Six-Day War); a single party had not banned the rest.

Democracy
is a relative term, though. There were flaws in the system—some whose full significance would not be seen for years, some that were already easily noticed. To start, state and synagogue were entangled—even though much of the secular majority wanted to toss religion on the ash heap of history.