Druze leaders partake in the protest against the Nation-State Law in Tel Aviv, August 2018.
(photo credit: CORINNA KERN/REUTERS)
The Nation-State Basic Law brings with it serious threats to democracy. One of the consequences of the law may be the de facto disenfranchisement of not just some, but most Israel citizens.
This is not because of any provision in the Basic Law. Read the law; it does not increase or diminish the rights of any Israeli citizen. It is a modest measure that would be uncontroversial if it were passed in any other country, or by any other government.
But the critics of the new constitutional provision have turned to the Supreme Court, asking them to overturn a constitutional provision – for being unconstitutional. This makes no sense; any American constitutional lawyer would find the notion of an unconstitutional constitution ridiculous.
The Supreme Court is most likely not going to strike down the Basic Law, but if it even claims the authority to consider challenges to constitutional provisions, it will set itself up as a supreme authority that is above even Basic Law. This will put it above any checks and balances; it will be a true judicial coup with consequences that make Aharon Barak’s innovations seem minor.
The Basic Law is now part of Israel’s constitutional law. As such, it is fundamental. The Supreme Court, whose own existence and authority is determined by Basic Laws, has no authority to review it. As Alexander Hamilton wrote in the Federalist Papers, constitutional measures are “in fact, and must be regarded by the judges, as a fundamental law.” Any attempt by the Court to review the merits of the law, or examine it in relation to any principles beyond what is contained in it, should be considered entirely illegitimate and lead to the sharpest constitutional crisis.
The Court should not say one word about the merits of the Basic Law. But that is a valid subject for public debate – and that debate has seen some gross misrepresentations. This law did not emerge suddenly from a right-wing government. It has been debated and refined over a seven-year period in the Knesset. The opposition to it is purely political. The opportunism of the critics can be seen by the fact that some of them supported even stronger versions of this law when it was introduced.
Opponents of the law show the need for it, because they seek to deny the Jewish people the national rights exercised by people in liberal democracies around the world. Apparently, the Jewish people’s right to self-determination in a nation-state, the centerpiece of secular Zionist thought, is an idea that is only acceptable when kept silent.
Most nations only have one official language, the primary one spoken in the country – even when there are substantial minorities with different native languages. Israel is the only country in the world where Hebrew is the primary language. To deny Israel the right to treat Hebrew the same way other countries treat their primary languages is simply to deny it equal standing in the community of nations.
The basic Zionist values articulated by this law have been supported by every government since the creation of the State of Israel. Israel as the home of Jewish self-determination; the importance of Jewish settlement throughout the land – these are the values of Ben-Gurion, who called for the settlement of millions of Jews in the Negev.
Ironically, the loudest critics of the law are those that are most eager to infringe on individual rights in the name of Jewish statehood. They expelled thousands of Jews from their homes because they said we need to do so to have a Jewish state. They wish to expel hundreds of thousands more – because they say they we want a Jewish state. What is the meaning of a Jewish self-determination if it cannot be articulated as a positive value, only as an excuse for expulsion?
Some critics object to the law not because of what is in it, but because of what is not. But their argument is disingenuous. Indeed, Meretz has challenged the Basic Law in court based on the existing protection of equality – and then turn around and say there is no constitutional protection of equality.
People talk broadly of “equality,” but no one knows what “equality” means. Does it mean the Law of Return is unconstitutional? Does it mean that those who serve the nation in the Army, such as our brothers the Druze, are not eligible for veterans’ benefits? Does it mean that the exemption of Arabs from compulsory from military service is unconstitutional? It can mean all of those things – and none of them. Without an agreement on what equality means in Knesset and society, including such a provision is simply writing a blank check to the Supreme Court to decide the most contentious social issues based purely on their opinion. That is undemocratic, and that is why it was not done.
Nothing imperils the status quo for Israel’s minorities than the suggestions cynically tossed around by the law’s opponents.
I must say a terrible word, because the critics have cynically used it in relation to the law: Apartheid. This debases the meaning and memory of Apartheid, and is as disgusting as Nazi analogies, which we know have no place in political discussions. The law does not give any group special access to public facilities. It does not change the full political and electoral rights of Israeli citizens of all ethnic groups. If this is apartheid, the word is meaningless. Indeed, the same “right-wing” parties that supported this law passed a historic 10- to 15-billion-shekel development plan for Arab communities.
Israel properly does not compare itself to neighboring regimes. But we know that the constitution adopted by the Palestinian Authority declares their entity to be Palestinian in character; with Arabic as the official language, and Islam as the official religion. If this is apartheid, why are the opponents of the law so eager to create an apartheid state?
The writer is the director of the international law department at the Kohelet Policy Forum.
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