High Court hints it wants to interpret Jewish Nation-State Law, not nix it

‘Your ancestors had yellow stars, you should know better’; Bibi, Gantz weigh in

High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
An expanded panel of 11 justices of the High Court of Justice on Tuesday hinted at a hearing that they prefer to interpret the Jewish Nation-State Law in a manner that will resolve controversies instead of nixing it.
Politicians across the spectrum made strong declarations for and against the law, with protests erupting also regarding the future of the law.  
Essentially, statements and the questions from the justices suggested that they were highly disturbed by aspects of the law which might be construed as discriminating against Israel’s Arab or Druze sectors.
At the same time, they suggested that granting the approximately 15 petitions to strike down the Jewish Nation-State Law as unconstitutional would go too far since it is a basic law with quasi constitutional status.
Rather, it seemed that the justices' preferred solution would be to declare that all parts of the law, including those which might be misused in a discriminatory manner, cannot contradict Israel’s democratic principle of equality.
Some of the key objections to the law are its emphasizing the state’s Jewish character at the expense of other Israeli-minority sector identities, including the absence of mentioning the word “equality, its alleged downgrading Arabic from an “official” status to a “special” status and its alleged emphasis on Jewish settlement at the expense of other groups.
Attorney-General Avichai Mandelblit has declared the law is legal and that the law is only a positive declaration about the state’s Jewishness, with no negative harm on other groups’ individual rights.
Mandelblit has also said that the law does not protect nationalistic identity rights for minorities, but that this is not required in a democracy provided all minorities’ rights as individuals are protected.
The High Court’s reassurances to the many petition lawyers that the law could be interpreted in a non-harmful way did not always help.
Lawyer Ayman Abu Rayah screamed at the justices: "Your ancestors had yellow stars on their sleeves, you should know better" than to allow a discriminatory law like this to stand.
Druze sector lawyer Salah Ali Samar said furiously that Attorney-General Avichai Mandeltblit’s defense of the law “completely ignored us and the 'blood covenant'” which the Druze-Israelis have honored by serving and dying in the IDF to defend the country.
At one point, High Court President Esther Hayut respectfully asked him to calm down and not to scream at the justices, though she said she understood how emotional the issue was.
Lawyer Shakhib Ali, also representing the Druze sector, proposed that the law be amended to better protect Druze rights instead of having to scrap the entire law.
In contrast, many other lawyers, such as Adalah’s Hassan Jabareen and the Association for Civil Rights in Israel’s Dan Yakir, demanded that the entire law be tossed, citing several court cases where lower courts have already used it in an allegedly discriminatory manner.
Prime Minister Benjamin Netanyahu stressed on Facebook that the Nation-State Law was passed in an effort led by the Likud Party by an absolute majority of the Knesset.
"The court has no authority to discuss the validity of basic laws because the basic laws enacted by the Knesset are the supreme constitutional norm in the country and the most fundamental expression of the principle of the rule of the people and the principle of the rule of law alike," said Netanyahu.
"Contrary to the misleading allegations made against it, the law does not in any way infringe on the individual rights of anyone - Jewish, Arab, Druze, Circassian or Bedouin. As individuals, they are all equal members of the State of Israel. But the Basic Law anchors the national identity of the state as a Jewish state, its symbols, language and holidays, and its commitment to the Jewish people wherever they are."
Both Netanyahu and Knesset Speaker Yariv Levin also threatened the court with major reform of its powers.
"Yariv Levin and Netanyahu's threats to the court are dangerous to democracy and dismantle the separation of powers," tweeted Alternate Prime Minister and Defense Minister Benny Gantz in response to Levin's letter. "They have not succeeded to this day - and we will make sure that they do not succeed in the future either."
Likewise, Yest Atid party leader Yair Lapid said, “Netanyahu’s explicit threats against the High Court this morning are the attempt of an indicted criminal to scare the justices. We will not let him break Israel’s democracy.”
Lapid is also on record stating that he supports highlighting Israel’s Jewishness, but that the law that was passed was done in a way that unnecessarily humiliated the country’s minority sectors.
But former Shin Bet chief and Likud MK Avi Dichter, an original sponsor of the law, said, "The law puts an iron wall in front of Palestinian demands to uphold the 'right of return' to Israel. The Nation-State Law is cast concrete, and it will remain so forever."
He added, "I cherish the Druze community and tell them - you are an integral part of the State of Israel,” saying that it was not directed against them.
A repeated theme by the justices was that they did not like the law and would have written it differently, but that the parts they did not like were not extreme enough to strike it down.
Pushing back on lawyers' request to strike it down, Justice Anat Baron, from the court’s more activist wing, said, “listen to the music” of the justices rejecting big picture arguments for tearing it down in favor of narrow arguments about how to interpret it.
Likewise, as petitioner-lawyers cited recent rulings by the Jerusalem and Krayot courts which they said had discriminatory outcomes, Hayut responded that a recent Haifa court decision used the law to defend the rights of Arabs to have a sign in Arabic citing Arabic’s “special” status.
The justices also pressed government lawyers with Justice Dapha Barak-Erez asking if the court could intervene if the Knesset passed a law negating the right of women to vote.
Government lawyers mostly sidestepped getting into specific examples by saying that no one was even dreaming of such a scenario.
To the extent, government lawyers responded, they said that it was possible that the Knesset might be prohibited from passing certain laws, but that the High Court still might not have the power to step in and fix such issues, if the law in dispute was a basic law with quasi constitutional status.
An unspoken difficulty throughout the debate was that Israel has no constitution. This places the High Court in the position of trying to prevent other branches of government from overstepping their bounds, while the court’s jurisdiction itself is unclear.
The Jewish Nation-State Law was passed on July 19, 2018, but the High Court stalled hearing the case for two-and-a-half years due to the country’s political instability.