The
process of drafting a constitution is an intellectual one in which the
drafters attempt to imagine the future of their society. Adalah's
Democratic Constitution (DC)
refers to an imagined democratic, bi-national and multi-cultural state
within the Green Line. The right of return is based in international
law and does not depend on Israeli domestic law; the DC therefore
emphasizes this right in its preamble, on the basis of UN Resolution
194. Is it possible to enumerate the right of return in the
constitution of the imagined state? Article 39 of the DC, which deals
with restitution of private property, provides that, “Every person
whose land has been expropriated or whose right to property has been
violated arbitrarily… is entitled to have his or her property restored
and to receive compensation for the period during which his or her
right to property was denied.” The right here relates not to citizens
or residents but to “every person,” in order to include all of the
Palestinian refugees and all of the non-Palestinian Arabs (Syrians,
Lebanese, Egyptians, etc.) whose land was confiscated by Israel in
1948, and to emphasize the individualistic aspect of the right of
return. Do all Palestinian refugees wish to be citizens of the imagined
state? Article 15 of the DC, which discusses citizenship, provides
that, “The laws of citizenship and immigration will be established on
the basis of the principle of anti-discrimination.” This citizenship
will be based on the territorial principle for, “Anyone who was born
within the territory of the State of Israel and whose parent was also
born within the territory of the State of Israel … [anyone] who was
born to a parent who is a citizen of the state … and the spouse of a
citizen of the state.” In fact, this provision allows every Palestinian
refugee to be a citizen since it defines a citizen as a person who was
born in the territory defined as such by the constitution within the
1967 borders. Conversely, it cancels the exclusive privilege granted to
Jews regarding immigration to the state.