In the early morning hours on July 19, Israel’s parliament, the Knesset, passed “The Basic Law: Israel as the Nation State of the Jewish People,” making it part of the Israeli constitution, which is made up of a series of what are known as “Basic Laws.” The new Jewish nation-state law enshrines Israel as “the national home of the Jewish People” and states that “[t]he state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.”
The enactment of this Basic Law poses a puzzle: Why would an unrivaled majority of Jewish voters in the prosperous “start-up nation” require constitutional protection? The quest for legal guarantees for the Jewish people was regarded as crucial by the Zionist movement almost exactly 100 years ago, yet why would the same issue be considered an urgent matter today? Why did Prime Minister Benjamin Netanyahu regard its enactment “a defining moment in the annals of Zionism and the history of the state of Israel”?
In addition to encouraging Jewish settlements throughout the country, this new Basic Law proclaims that the land of Israel (Eretz Israel) is the historical homeland of the Jewish people and that the state of Israel is the nation state of the Jewish people “in which it exercises its natural, cultural, religious and historical right for self-determination” (authors’ translation), a right that is “exclusive to the Jewish people.” It proclaims that the “state’s language” is Hebrew, whereas Arabic, which has been together with Hebrew an official language ever since the British Mandate, is now symbolically demoted to having “a special status in the state.” For the first time, “religion” (presumably, the Jewish religion) is invoked by a Basic Law, as it mentions religion as a source for the Jewish people’s right to self-determination.
This Basic Law should be read against the backdrop of seemingly disparate acts of legislation in recent years, which, taken together, amount to a concerted effort to undermine demands for equality for the Palestinian citizens of Israel and to preempt political challenges to the solid nationalist coalition in power for the last decade or so.
Indeed, we have been witnessing a slew of statutory and administrative reforms that significantly weaken the two pillars of democratic constitutional orders: civil rights and institutional checks. The post-independence unwritten Israeli bill of rights was constitutionalized with the enactment of the Basic Law on Human Dignity and Liberty in 1992. The Israeli Supreme Court interpreted “human dignity” as encompassing equality and at times was able to fend off governmental policies that discriminated against the Arab minority. Key decisions struck down unequal allocation of public resources (including state lands) and secured civil rights for Arab representatives as well as the use of the Arab language in the public sphere.
The legislative backlash to those decisions has been unrelenting. The Knesset passed statutes that practically allowed Jewish municipalities and smaller settlements to deny Arabs access to their recreational centers and in some cases excluding Arabs from living in Jewish communities. The Knesset also authorized tax deductions for financially supporting settlements (implicitly also in the occupied West Bank). It granted the government wide discretion to disproportionately allocate to predominantly Jewish towns and villages (dubbed “National Priority Areas”) significant public resources; and it provided for the recognition of initially unauthorized seizure of state lands in the south of Israel (effectively applicable only to Jewish settlers). Further legislation raised the electoral threshold, thereby limiting representation in the Knesset of Arab parties and authorized a majority of 90 Knesset members to oust a serving Knesset member whom they consider, among others, to deny the existence of Israel as a Jewish and democratic state. Another statute (the “Nakba Law”) authorized the finance minister to reduce funding to an institution that holds an activity that is deemed to deny the existence of Israel as a “Jewish and democratic state” or that commemorates “Israel’s Independence Day or the day on which the state was established as a day of mourning.” Principles of Jewish law were included among the sources for interpreting statutes.
To this by no means comprehensive list of statutes targeting the Jewish-Arab divide within Israel, one must add the other wave of legislative measures designed to target civil society’s political voice, such as the “NGO Law,” which requires NGOs to disclose donations from foreign “state entities,” or the “Boycott Law,” which makes it a civil wrong to call for an economic, cultural or academic boycott against a person or entity merely because of its affiliation to the State of Israel or to a specific region under Israeli control. That law also authorizes the finance minister to deny benefits to those calling for such a boycott. Last week, the Knesset authorized the minister of education to prevent NGOs “seeking to initiate legal action against [Israel Defense Forces] soldiers abroad” from participating in educational activities in state schools (known as the “Breaking the Silence” law). The minister of education has been actively seeking to dominate the Council for Higher Education, which has authority over Israel’s universities, and to impose a code of conduct on professors due to alleged complaints about political bias in lecture halls. Netanyahu’s plan to undermine the independence of the Israeli public broadcasting service was temporarily blocked due to the intervention of the European Broadcasting Union, which threatened to oust Israel from the group if the measure was implemented.
Some of these legislative and administrative measures have been challenged and are now pending before the Supreme Court. One might expect that the fate of these pending petitions could now be tied to the Jewish Nation-State Law that, as part of the Israeli piecemeal constitution, could serve as a legislative umbrella to all those efforts to weaken civil rights and institutional checks. The new Basic Law’s commitment to “the development of Jewish settlement as a national value” could sustain legislation that discriminates in favor of Jewish settlements; the exclusivity of self-determination could limit the Arab population’s demand for the recognition of their collective rights; and more specifically, to undercut their effort to enhance the constitutional protection of the Arabic language beyond its inadequate recognition by the Court.
It’s not just Israeli Arabs who are potentially affected by the new Basic Law. The seemingly innocuous re-founding of the state on the (Jewish) religion could be read as a frontal attack on the secular identity of the Israeli state, which was enshrined in the 1948 Proclamation of Independence. One could also argue that this reference to religion authorizes the Knesset and the court to inject Jewish law into Israeli law. If true, than the new Basic Law deals a blow to the secular effort, around since Israel’s creation, to invoke Israel’s democratic identity as a bulwark against the lack of constitutional separation between church and state.
Still, the Jewish Nation-State Law should be read in conjunction with the Basic Law on Human Dignity. Significantly, the new Basic Law doesn’t directly detract from the Human Dignity law’s commitment to Israel as “Jewish and democratic,” to equality under the principle of human dignity and to “the spirit of the principles set forth in the Proclamation of the Establishment of the State of Israel.” That 1948 Proclamation famously pledged that the State of Israel would “foster the development of the country for the benefit of all its inhabitants” (our emphasis), and “ensur[ed] complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”
But while arguably the promotion of the Jewish national cause remains subordinate at least to the principle of individual equality, the Jewish Nation-State Law does weaken the protection granted to individuals under the Basic Law on Human Dignity. When the Supreme Court reviews laws that limit individual dignity, it applies the “limitation clause,” which requires, among other things, that the law “befit[s] the values of the State of Israel” and is “enacted for a proper purpose.” Attempts to challenge discriminatory legislation could now be answered by invoking the new Basic Law as conveying the “values of the State of Israel” and “a proper purpose.” What remains for the affected individual is to convince the court that such discrimination is disproportionate – “to an extent  greater than is required.”
In the past, the Supreme Court articulated a doctrine according to which Basic Laws might be struck down if incompatible with the core values of the State of Israel as Jewish and democratic (“the unconstitutional constitutional amendment”). But thus far it has refrained from applying this doctrine. Will the justices venture to do so now, preferring equality over the values the new Basic Law seeks to promote?
Unfortunately, it is difficult to offer a prognosis. The independence of the judiciary has been the target of direct and indirect attacks through a number of legislative acts. These measures have secured the influence of political interests in the appointment and promotion of judges, including to the Supreme Court the culmination of which may be the not-yet-enacted “Override Clause,” which would enable the Knesset to reinstate a statute that the court declared unconstitutional.
Let’s get back to our initial puzzle: Why did the initiators of the new Basic Law feel the need to constitutionalize the privileged position of the Jewish majority? Several explanations have been offered, invoking the coming elections, as well as the broader trend of populism and similar illiberal legislative measures taking place in other countries. Obviously, Israel is not immune to these anti-constitutional currents, and to the disproportionate influence of the right-wing “Jewish Home” party. But we posit that the new law should not be understood merely as another example of the backlash-style legislation that we are witnessing world-wide.
We contextualize the motivation for the Jewish Nation-State Law within the crumbling Israeli-Palestinian peace process and the growing prospects of a one-state-solution, which poses a serious legitimacy problem for one people that rules over another. For the proponents of this Basic Law it offers a legitimating principle for the subordination of another people with which they hope the majority of the Jewish voters would identify. The new law is therefore also part of a series of statutes that have extended the authority of the Knesset to the occupied territories (as exemplified by the “Regularization Law”) and thereby attempts to “regulate” the formally temporary and exceptional military rule over the occupied West Bank.
On July 22, about 100,000 Israelis rallied against the enactment of yet another piece of discriminatory legislation, demanding equal surrogacy rights for gay men. We suggest that this outburst of public anger is not incidental. The surrogacy law indicated to those protesters that the array of legislative measures against the Israeli bill of rights and against its checks and balances culminating in the Jewish Nation-State Law does not attack the Arab minority alone but also threatens the silent secular Jewish majority and their vision for their country. The crowds filling Rabin Square in Tel Aviv with rainbow flags may tell us that the battle for an equal and secular Israel is not yet lost.
Image: Arab lawmakers stand in protest against passage of law declaring Israel a Jewish Nation State during a Knesset session in Jerusalem, Thursday, July 19, 2018 (AP Photo/Olivier Fitoussi).