The new basic law: It's about time

There is a broad consensus that Israel should be a Jewish, democratic state. But the Jewish character of that equation has been diluted by 21 years of Supreme Court decisions.

May 29, 2013 23:00
4 minute read.
Horses, marchers on Jerusalem Day

Horses, marchers on Jerusalem Day_370 . (photo credit: Melanie Lidman )

The proposed “Basic Law: Israel as the Nation State of the Jewish People” was first endorsed by 40 Knesset members in the previous session. This proposed law provides: “Israel is the homeland of the Jewish people in which the Jewish people fulfill its yearning for self-determination in accordance with its cultural and historical legacy.”

The law did not come to a vote because the haredi parties communicated their intention to veto its passage – a right granted to them by the coalition agreements. The haredi parties feel they were tricked into allowing passage of the previous two Basic Laws in 1992 and since then have doggedly opposed any basic law, no matter what its provisions are.

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But today, the stars are differently aligned. First, the coalition agreement between Likud Beytenu and Bayit Yehudi (with the knowledge and consent of Yesh Atid) mandates the passage of this basic law. Further, the coalition agreements do not give any party a veto.

There is a broad consensus that Israel should be a Jewish, democratic state. But the Jewish character of that equation has been diluted by 21 years of Supreme Court decisions.

This is verified by Dr. Aviad Bakshi’s research, conducted for the Institute for Zionist Strategies.

Why has the Supreme Court consistently weakened the Jewish character? Some would say that it results from the personal predilections of the justices, who are chosen through horse trading in closed proceedings by a select committee which the justices themselves dominate. But Dr. Bakshi argues that a major cause is the imbalance in the basic laws which the court has declared to be its binding authority.

For the first 44 years, before Justice Aharon Barak’s “constitutional revolution,” the Supreme Court applied common law to carefully balance Israel’s interests as a Jewish state with its goal to protect minority rights. And it succeeded in keeping Israel a Jewish democratic state. But when in the early ’90s the Supreme Court unilaterally changed the Harari Knesset decision of 1950 to declare that all of the basic laws ultimately destined to be integrated by Knesset action into a constitution are suddenly, metaphysically morphed into a court-ordered instant constitution, the basis for the important and delicate balance was destroyed.

For this new, judge-created constitution consists of nine basic laws (out of a total of 12) delineating democratic procedures and interests but not one detailing national Jewish interests. The new Basic Law: Israel as the Nation State of the Jewish People is designed to bring the two elements of our national being into balance once again.

This new basic law has been relentlessly attacked by Haaretz editorial writers and others sharing its agenda.

Most of the objections have been disingenuous. One claim is that the law does not assert democratic values and is thus unbalanced in favor of “Jewish” at the expense of “democratic.” But the very need and purpose of the law is to strengthen the Jewish character of the state. The state’s democratic nature is already rooted in nine basic laws. The new basic law, once enacted and enforced together with the nine existing laws, would rectify the current imbalance and bring the elements into harmony.

Another claim is that the law would demote Arabic by making Hebrew the only official language. But despite the carry-over of Ordinance 82 from the days of the British Mandate, Arabic today is not de facto an official language, as demonstrated in a research study published by the Institute for Zionist Strategies.

The new basic law does not demote the status of the Arabic language, it confirms and even enhances the current usage.

But all of these criticisms are not directed at the heart of the proposed legislation, and all alleged shortcomings surely can be corrected in the final text of the law to emerge from the legislative process.

The real objection of those most vociferous in opposition is to the very essence of a Jewish state. The proposed basic law reaffirms our character and destiny as the only Jewish state in the world.

This threatens those who do not want to be different or who want to merge into perceived universal norms. The law reinforces the status of Israel as the Jewish nation state envisioned by the League of Nations, the UN, and as proudly proclaimed by our own Declaration of Independence.

Simply put: Those who fundamentally oppose the basic law do not want a Jewish state. Global hostility to Israel as the Jewish-Zionist state must not find support within Israel. Israel public opinion polls confirm that the people of Israel overwhelmingly want a Jewish state. We have dreamed of a sovereign Jewish state for 2,000 years, and that dream, now realized, is still vital and still inspires our people.

Our government demands that others recognize us as a Jewish state. Surely, it is appropriate that we ourselves do so. The democratic character of our state is central and integral to our institutions of government. It is securely ensconced in nine of our basic laws. We now have the duty and opportunity to codify our Jewish character.

The author, an attorney in Israel and the US, is the founding president of the Institute for Zionist Strategies.

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