Could Israel’s High Court strike down the Nation-State Law?

Riding a wave of criticism and protests, Arab, Druze and left-wing parliamentarians petition the court to review the controversial law

By TERRANCE J. MINTNER/THE MEDIA LINE
August 8, 2018 11:37
Could Israel’s High Court strike down the Nation-State Law?

Supreme Court President Esther Hayut (L), President Reuven Rivlin (C), Justice Minister Ayelet Shaked (R) at the President's Residence, May 7, 2018. (photo credit: PRESIDENTIAL SPOKESPERSON OFFICE)

 
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As the furor continues over Israel’s controversial Nation-State Law, with critics denouncing it as discriminatory against non-Jewish minorities and supporters extolling it for enshrining core national values, an intense legal battle over the law could be on the horizon.

Israeli Justice Minister Ayelet Shaked raised the possibility during an interview with Army Radio on Sunday. She warned Israel’s High Court of Justice or Supreme Court not to strike down the law or else such a move would trigger an “earthquake, a war between the authorities.”

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During the interview, the justice minister touched on what separates “authorities,” referring to the respective roles of the Knesset, or parliament, and the High Court. The Knesset, where the law originated and was passed, “is the constituent assembly, which defines and determines the Basic Laws,” Shaked said. “[The High Court justices] have to interpret the laws in accordance with the Basic Laws.”

A Basic Law effectively has quasi-constitutional status (as Israel has no formal constitution), which means it guides Israel’s legal system, and is the measure from which other laws are interpreted. This makes a basic law much more difficult to repeal than regular laws.

Turning to the possibility that the High Court could decide to review the Nation-State Law, the justice minister said: “I don’t believe a majority on the Supreme Court would take such a step.… I very much hope that this doesn’t happen and I don’t believe it will.”

Shaked then reiterated her support for the law. “There is nothing revolutionary in this specific law,” she said. “It contains values that the state was founded on, values of settlement, immigration and national identity. There is consensus about these values.

“Over the years, the court has given great weight to the democratic value, to the values of equality, and I think that in certain cases, this came even at the expense of national values. The Nation-State Law gives the High Court a tool to take national values into account as well,” she added.

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Last month, the Knesset approved the law in a vote of 62-55 (including two abstentions). The law officially defines Israel as “the national home of the Jewish people,” and more firmly anchors in the legal system Israeli national symbols, the Hebrew calendar, and Jewish holidays. On the linguistic front, it downgrades Arabic from an official language to one with a “special” status.

The more controversial point in the law surrounds Jewish settlements. Initially, supporters of the law devised it to provide legal backing for the establishment of exclusively Jewish communities. After significant pushback on the legality of the idea, the architects of the law opted for vaguer statements of state support. 

As it stands, the law declares that “the state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.”

Yet, the reworking of the law has done little to appease critics who charge that it undermines the commitment to equality for all citizens, a core democratic principle, enshrined in Israel's Declaration of Independence. 

Opponents of the law, both at home and abroad, have been vociferously protesting its passage, with the Druze community spearheading the growing dissent. Druze, many of whom serve in the Israeli army, say the law turns them into second-class citizens.

Last week, more than 50,000 Israelis along with many Druze converged upon Tel Aviv’s Rabin Square, waving Israeli and Druze flags, and calling on the government to drop the law.

Despite Shaked’s belief that the High Court will not repeal the law, it now seems that the court will be compelled to review it.

In recent days, Druze parliamentarians Akram Hasoon, Hamad Amar, and Saleh Saad filed a petition against the law, requiring the court to at the very least respond. Another petition was filed by the left-wing Meretz party. And on Tuesday, Israeli-Arab leaders penned a petition of their own, slamming the law as “racist and massively harmful to fundamental human rights.”

The first hearing is scheduled for January.

For his part, Prime Minister Binyamin Netanyahu defended the law as “vital” for ensuring that “Israel will remain the Jewish nation-state for generations to come.” He added that the law does not seek to harm individual rights.

Dr. Amir Fuchs, head of the Defending Democratic Values project at the Israel Democracy Institute, contends that the chances of the High Court overturning the law are very low.

“The Supreme Court has never struck down a basic law,” Fuchs told The Media Line, explaining that such a law can only come under judicial review in extreme situations when it contradicts basic elements of the legal system.

“So, when you legislate a basic law, in a way you render it immune to regular judicial review.”

Nevertheless, he noted that the law is problematic for what it omits. “Still, I can’t image that it will be stuck down. The most reasonable outcome is that it will not be abolished, but will be interpreted vaguely, in a way that does not give the law too much power in practice.

“Do not expect anything soon,” Fuchs concluded, “petitions like these in the courts sometimes take years.” 

Kobi Sudri, an attorney and former officer in the IDF Criminal Investigation Department, told The Media Line that the nation-state law reflects important values that the Jewish state was established upon.

“But, on the other hand, lawmakers missed several important values in the law, an omission that puts Israel in a negative light. They missed—on purpose—quotations from Israel’s Declaration of Independence about equality and fairness, and about the fact that the country, although a Jewish one, has equal place for all minorities,” Sudri asserted.

“Lawmakers can add this into the law without harming its main purpose of defining Israel as a Jewish state."

Sudri, echoing Fuchs’ remarks, concluded that the Nation-State Law will be very difficult to strike down, as it does not explicitly discriminate against non-Jews.

For example, he explained, the Law of Return—the law that entitles every Jew throughout the world to become a citizen of Israel—was not overruled on grounds that it supported inequality. “Therefore, I don’t see any reason why the Nation-State Law should be denied by the Supreme Court.”

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