Analysis: Could proposed ‘Jewishness’ law cause courts to alter state’s course?

The proposed bill to define Israel’s Jewishness will have a massive impact on a range of issues before the High Court of Justice in the past, present and future.

Israeli flags 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
Israeli flags 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
The proposed bill to define the state’s Jewishness will have a massive impact on a range of issues before the High Court of Justice in the past, present and future.
The affects could be both direct and indirect.
One of the most obvious issues is the attempt to disqualify candidates, especially Israeli Arabs, from running for Knesset.
There have been repeated efforts to disqualify Israeli-Arab candidates, such as most recently MK Haneen Zoabi in the last election, from running for the Knesset on grounds of actions allegedly against the state and its Jewishness.
As Article 7a of the Basic Law: Elections reads, a candidate cannot reject either the state’s democratic character or its Jewishness. However, the two are so bound together that arguments to disqualify candidates solely based on their opposition to the state’s Jewishness have repeatedly been met with unanimous rejections by the High Court.
Could the new law, if it sufficiently tips national identity issues toward the state’s Jewishness, alter that result in the next election? In January 2013, Deputy Defense Minister Danny Danon led a campaign against Zoabi, calling the court’s version of Jewish and democratic a “weak, naïve democracy” and signaling that the law regarding Jewishness would be changed.
The High Court, in September 2013, also threw out the state’s policy of placing illegal migrants in closed detention centers for up to three years before establishing their refugee status.
The state’s re-calibrated migrant policy, placing the migrants indefinitely in open detention centers, is currently before the High Court, which could once more put the state’s policy to the test.
Following the majority opinion, Justice Edna Arbel said that detaining the African migrants instead of deciding whether they could be deported or needed to be granted asylum violated not just “their fundamental constitutional rights to human dignity,” but defined that violation as the “basis for Israel’s values as a Jewish and democratic state.”
What if the new law lifts the Jewish value above the democratic one in some instances and if the migrant issue is viewed more from a perspective of national identities and impacts on different groups nationally as opposed to individual freedoms? Could the new law alter what the High Court has to say about migrant policy? Besides those two issues, there are a range of others.
A range of legal controversies have addressed Israeli-Arabs’ right to commemorate the “Nakba,” or “the catastrophe,” as some refer to the day that the state was founded, based on allegations of the impact on Palestinians losing their lands.
Concrete land issues are also before the High Court, dealing with whether state land, specially defined as kibbutzim and land distributed by Keren Kayemeth LeIsrael- Jewish National Fund, can refuse to rent or sell to Israeli Arabs.
Some land ownership controversies in the South involving Beduin are being fought out in the court system with arguments raised about the importance of Jewish settlement of the land.
The court also has a decision pending on the Anti-Boycott Law and other laws intended to slow down the impact of left-wing organizations on policy.
How will elevating the state’s Jewishness in the context of national identity issues affect these cases before the High Court and other courts? Exactly what the impact will be is unclear, because the final wording of the bill is in the process of being toned down in order to gain support from the Center-Left, including Justice Minister Tzipi Livni and Finance Minister Yair Lapid and their parties.
Additionally, if the new law does not require concrete actions, courts may choose to interpret it symbolically while continuing to base their rulings on other basic laws or the Declaration of Independence’s strong democratic provisions.
But there is no question that all observers are keenly watching the process, which could completely alter the course of a range of legal issues before the High Court – and in doing so, the course of the country itself.