E05 — The Jewish Nation State Law

Prime Minister Netanyahu in a video describing the Jewish Nation State Law

Hi everyone and welcome to episode Five of The Israel Podcast. I’m Avishay Ben Sasson Gordis and this week I’ll be talking about the “Basic Law: Israel as the Nation State of the Jewish People” that passed the government and a preliminary Knesset vote last week.

Last week the Knesset made the first move towards legislating the “Basic Law: Israel as the Nation State of the Jewish People” and passed it by a margin of 48 to 41 members. In agreement between the parties of the coalition, the bill will be debated and revised over the next two months to deal with some of its more problematic elements.

If you listened to last week’s episode, you might be wondering what’s the need all of a sudden for a law that states that Israel is the state of the Jewish people. Isn’t that exactly what the declaration of independence said Israel was going to be?

To understand that we have to talk a bit about that thing I said last week that I’ll have to talk about some other time. Other time is here, and we’re going to talk about WHY ISRAEL DOESN’T HAVE A CONSTITUTION (and how come you might think it does). So, the declaration of independence included the following words:

“WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State”

Elections for the constituent assembly didn’t happen until 1949 and its first act was to turn itself into the Knesset, Israel’s parliament. Due to the opposition of several different parties and members, the Knesset decided not to draft a constitution. While today, generally speaking, the left supports the adoption of a constitution, and the right opposes it, the positions at the time were reversed. Ben Gurion was not to keen on placing limits on the power of the parliamentary majority, whereas members of religious parties argued that Israel already has a constitution in the form of the Jewish law and scripture. The strongest support for a constitution came from Menahem Begin, the leader of Herut and the Israeli right, who argued forcefully for the protection of individual right. The fact that today, the positions on the issue, are largely reversed, would seem to indicate that what’s doing the explanatory work here, is not being right or being left, but who’s got a grasp on the reins of power.

The solution came in the form of the Harrari Compromise. Named after the Yizhar Harari, a Knesset Member from the progressive party who suggested it in 1950. Harrari’s solution was that instead of legislating a constitution in one fell swoop, the Knesset would pass chapters of a constitution in the form of Basic Laws, and that once done, these would be bound together as a constitution. Throughout the years there were different attempts to pass a full fledged constitution, but none succeeded. Anyway, it took until 1958 for the Knesset to pass the first Basic Law, dealing with the Knesset, and since then a total of 14 basic laws were passed.Some, more important like the laws regulating the operation of the government and the judicial system, and others who frankly, aren’t of the same constitutional weight, like a law amending the budgeting process.

However, until 1992, the skeletal constitution contained nothing that even seemed like a bill of rights. Courts recognized different constitutional rights, like freedom of expression, but they weren’t put into law. That is until 1992. In 1992 the Knesset passed two basic laws: Human dignity and freedom, and freedom of occupation. These two laws were interpreted by the Israeli supreme court to allow for robust judicial review, and striking down of contravening Knesset laws, on the basis of the rights enshrined in the two basic laws (interestingly enough, among others, the laws do not explicitly state the freedoms of speech and religion). In the words of the Chief Justice of the time, Aharon Barak, Israel experienced a “constitutional revolution”.

This judicial doctrine became the locus of one of the most enduring and profound political battles in Israel. Generally speaking, following the 1995 constitutional revolution and subsequent cases where the court struck down laws, many on the right in Israel have been complaining that the court usurped the Knesset, and hence democracy, in important ways. On the other hand, on the left, and remember that this is a very rough depiction of the opposing camps, the courts have gained an important place as defenders of democratic commitments to human rights in general, and minority rights specifically. If we look at the numbers, the court has been pretty conservative in its review of legislation with only a dozen cases in the past 22 years where laws were struck down. However, the knowledge that the court may block a law has had a larger cooling effect on politicians. In fact it has changed legislative tactics in interesting ways, as now politicians are free to float radical ideas they know will be blocked by the court, and enjoy both the populist benefit of the law, and the benefit of blaming the court for blocking them

Okay, so now that we’ve gone through Israeli constitutional law 101, let’s look at last weeks law. The law states that Israel is the nation state of the Jewish people, and that only the Jewish people may express its right for self definition in this state. It instructs that all legislation will be read in light of this law. It’s purpose is to protect the status of Israel as the nation state of the Jewish people, and anchor its values as a Jewish and democratic state. More specifically, it spells out and enshrines the symbols of state of Israel — Anthem, flag, seal, capital, and the Jewish holidays and calendar — that already happen to be designated in law and practice. It declares Hebrew to be the only official language of Israel, while demoting Arabic to a language with “special status”. It reiterates the right of every Jew to make Aliyah and be naturalized in Israel, and instructs the state to conserve the heritage of the Jewish people in the diaspora. It also permits the segregation of communal settlements along religious or national lines. And while Judaism in Israel and abroad takes the form of a collective right, the right to preserve one’s culture if one isn’t Jewish, is framed as an individual right. A right that the state is not committed to actually promoting, only to not interfere with. Finally, the law states that if a judge cannot decide a case by law, precedent of clear inference, they should resort to the principles of “liberty, justice, righteousness, and peace of the people of Israel’s heritage”.

The law in previous forms has been on discussion in the Knesset for the past 6 years. It was first floated in 2011 by MK Avi Dichter who was then a member of the centrist Kadima party. Due to public outrage, the head of Dichter’s party, Tzipi Livni, forced him to withdraw the bill. After the 2013 elections the bill resurfaced in different versions, one of which was to simply legislate the declaration of independence. Prime Minister Netanyahu, by and large didn’t seem to want it to pass into law despite coalition agreements with the fairly far right national religious party. Finally the bill was dropped when the Knesset dispersed in 2015. Dichter became a member of Knesset again in 2015, but now in the Likkud. He resubmitted the bill, but it didn’t move ahead until last week. I’ll come back to why in a minute.

The proponents of the law, like Adi Arbelof the Institute for Zionist Strategies (The conservative think tank responsible for the original proposal), and Dr. Aviad Bakshi who teaches law at Bar Ilan and Haifa universities, explain that it is needed for several reasons. First, they say it is the corollary of the democratic basic laws passed by the Knesset in 1992. Israel is Jewish and democratic, they argue, but only its democratic nature has been constitutionally enshrined. Second, and following from the previous argument, since the constitutional revolution, the courts have undermined the Jewish nature of Israel, and preferred ruling in favor of its democratic commitments whenever the two clashed. They cite as proof the courts overturning of laws that allow the jailing and deportation of illegal immigrants from Africa whose status as refugees or infiltrators is a point of debate in Israel. Third, they believe that the content of Israel’s Jewishness needs to be specified more explicitly so as to not be left to the consideration of every judge. They point to elements like the spelling out of national symbols in the bill, mentioned of Jewish culture and Aliyah and the permission to have separate places of residence as achieving this goal. In general, they believe that the bill will limit judicial activism. Fourth, they claim it will send a message to those outside Israel and among its Arab minority who do not recognize the right of the Jewish PEOPLE to a nation state, and preferential cultural presence in that state. In this they echo both the demand from Palestinians to recognize Israel as a Jewish state and the Israeli fear of the BDS movement. By the way, if you haven’t listened to my episode on Israeli responses to BDS, this is the perfect time for me to plug it and encourage you to listen to it.

On the other hand there is a wide coalition of people who oppose the bill. Activists involved in the integration of Arab Israelis into Israeli society, such as the people of Sikkuy, point to the demotion of Arabic from equal status to Hebrew as a slap in the face of the fifth of Israel’s citizens for whom Arabic is their native tongue. Others like President Rivlin, a right wing liberal, and former Likkud minister of security Moshe Arens, have made similar points saying that passing the bill will emphasize the ethnic inequalities in Israel in a time when we need to do our best to battle them. Arens and Rivlin have also stressed that there is a deep insecurity implicit in the need to legislate such a law. As if the fact of Israel’s Jewishness is not obvious. Finally, they point to the fact that the law is opposed in nature to the approach of the founding fathers of the Israeli right: Menahem Begin and Ze’ev Zabotinsky who preached full legal equality for the minorities in the Jewish state.

Legal experts have also pointed to the deeply problematic of the nature of the law. Prof. Mordechai Kremnitzer and Dr. Amir Fuchs of the Israeli Democracy Institute published an opinion in which they argue forcefully against the law. They show that despite the assurances by legislators that the proposed bill won’t undermine the basic laws that provide protections to human rights, the way in which it is worded and the supermajority required to change it risk supplanting the existing rights laws. They also show the various ways in which the bill underplays Israels democratic character, as promulgated by the declaration of independence. They show that the bill addresses the Arab minority only when it acts to make Arabs worse off by devaluing their language and culture. As for the permission to segregate communal settlements, they point to the fact that not only is the suggested arrangement open to differential treatment, it also doesn’t ensure that the treatment will be equal. Their strongest point in my opinion is that whereas constitutions usually protect minorities, this bill treats the Jewish majority in Israeli as if it is the minority.

A final argument against the bill is offered by Professor Alon Harel from the Hebrew University law school. Harel pointed to the fact that the law may also be problematic within the Jewish community. It assumes Judaism is one distinct thing, and given the Knesset majority on religious issues, it is reasonable to expect that the law will end up fixing an understanding of Judaism that is anywhere between indifferent to hostile to non-orthodox Judaism. This might be highly problematic for pluralist Israeli Jews and the majority of US Jewry.

All of this begs the question why now. Looking at previous episodes in which Netanyahu allowed the law to move forward, creates the distinct impression the he trots it out whenever he needs to play to his base. One of Netanyahu’s greatest successes was to put the demand that the Palestinian recognize Israel as a Jewish state front and center, after it was previously marginal to non-existent. Playing the nationalistic sentiment card, even if mostly symbolic, has served him well, as did implying that he saw Arab citizens of Israel as less than fully loyal citizens. Remember his warning on the day of the 2015 elections that “Arabs were rushing in droves to the polls”. It also puts the Zionist left in the uncomfortable position of explaining why they oppose such a reasonably seeming law.

In recent months Netanyahu has been behaving as if he’s afraid of being flanked on the right by Bennett and his right wing Jewish Home party. By going through the motions of allowing the bill to pass, Netanyahu and his party can score easy electoral points without having to do much. The law most probably will be stopped, or stripped of its more problematic elements in the run up to the final calls. More probably, though by no means certainly, the two months of discussion promised will spell the return of the bill into hibernation. However, every time its brought out to air, another toxic message is sent to Israel’s Arab minority and the status and trust in the judicial system is eroded slightly more. If you believe, as I do, that what leaders say affects what citizens believe, then allowing the law to be discussed again and again is detrimental to Israel’s democratic culture.

This is not only a fight to shape Israel’s democratic image. It is also a clash over its Zionist and Jewish visions. Are they inclusive and basically egalitarian or are they highly particularistic and exclusionary. So while I am a firm believer in the right of the Jewish people to self determination and a state of our own, I for one hope that this law will be shelved.

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