|The Government Initiative to Enact a “Nation State” Law
In the midst of a protracted public and legal debate, the Israeli government confirmed its support for two private bills submitted by Members of Knesset from coalition parties proposing the drafting of a Basic “Nation State” Law to emphasize the Jewish identity of the State of Israel (one defining bill was submitted by MK Elkin, P/19/2502, and the other by Members of Knesset Shaked, Levin, and Elituv, P/19/1550). According to media reports, these bills will not move forward to the Preliminary Reading stage in the Knesset. Instead, a government bill initiated by the Prime Minister will be advanced. The details of this bill have also been revealed in the media in the form of a document of principles presented as a “softened” and “balanced” version of the private bills.
A review of the document of principles shows that on a number of central principle issues it indeed balances grave and disturbing aspects of the private bills. For example, it maintains the current definition of Israel as a “Jewish and democratic state,” in contrast to the proposal to define Israel as a Jewish state with a democratic system of government. Other areas of improvement include the distinction between the official status of the Hebrew and Arab languages, and the presence of community settlements for Jews only. With the exception of these points, however, the document of principles is identical in format to the two private bills and perpetuates many of their substantial deficiencies.
This paper will review the problems in the Prime Minister’s document of principles, which is supposed to serve as the basis for compromise between the coalition partners. Firstly, however, some brief comments on the legislative process and the timing of this initiative.
A. The Legislative Process: The Approach and Timing Reveal the Purpose and the Outcome
Above and beyond the specific details of the principles document, it is worth noting the character and timing of this legislative process. The legislative process is closely connected to a constitutional initiative launched by the Knesset Constitution, Law, and Justice Committee in the Sixteenth and Seventeenth Knesset (led by former Members of Knesset Michael Eitan and Menachem Ben Sasson). After a period of more than four years, this initiative ended without the formulation of a constitutional document. The main reason for this was recognition of the extremely complex nature of the initiative and the inability to rally a broad, representative, and diverse parliamentary majority for constitutional measures relating to the identity of the State of Israel.
In complete contrast to the thorough inclusive nature of the previous constitutional initiative, the attempt to enact the “Jewish State” law is marred by inadequate parliamentary and public discourse and by a focus on the narrow dimensions of the initiative. This is illustrated by the opinion of Prof. Ruth Gabison, a leading figure in Israeli constitutional discourse, as submitted to the Justice Minister, recommending that the government refrain from enacting a “Nation State” law at this time and in this manner. Senior figures from the Israeli legal world have made similar comments.
It is also vital to recognize that this constitutional initiative has been launched at a time of tension and worsening relations between the Jewish and Arab communities in Israel. An initiative that focuses on the Jewish character of the State of Israel, without due reference to the status of Israel’s non-Jewish citizens (as will be explained below), is liable to exacerbate this tension and cause further damage to the relations between the two communities.
B. The Proposed Legislation: Emphasizing One Component of Israel’s Identity as a Jewish and Democratic State and Granting Unprecedented Status to Jewish Religious Law in Legislative Processes in Israel
The constitutional embodiment of Israel’s Jewish character and its essence as the national home of the Jewish people is a positive and necessary feature. An examination of Israeli law shows that this principle has already been addressed in a clear and unambiguous manner. This constitutional principle is manifested in the goals and basic principles sections of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Vocation, both enacted in 1992, as well as in a series of related laws and, of course, in the founding document of the State of Israel: the Declaration of Independence. These documents formalized Israel’s Jewish character as part of a complex and balanced system of principles and values manifesting the combined nature of the state as the state of the Jewish people and as a democratic state that treats all its citizens equally.
The Prime Minister’s document does not adhere to this principle, thereby upsetting the delicate balance maintained by Israeli constitutional law between the components of the state’s identity. Although Israel’s democratic character is mentioned at the beginning of the document, and despite the fact that (unlike one of the private bills) it does not render the democratic character of the state subservient to its Jewish character, the document consistently and clearly emphasizes the latter component alone.
The proposed legislation does not adopt a restrictive and concise tone, but instead presents a broad fabric of basic principles relating to Israel’s Jewish character. Accordingly, in practical terms, the initiative serves as an attempt to draft the basic principles section of the future Israeli constitution. This merely serves to highlight and add to the gravity of the imbalance between the components of Israel’s identity and the potential future damage this initiative is destined to cause.
This imbalance is also reflected in the sections of the document that effectively seek to alter the legal status quo in the State of Israel. For example, the document states that educational institutions serving the Jewish public in Israel will teach the history, heritage, and tradition of the Jewish people. In itself, this is proper and important. However, the document does not include a parallel constitutional obligation to teach citizenship, democratic principles, and civil cooperation.
One section of the document states that Jewish law will serve as a source of inspiration for the Knesset. This section constitutes one of the clearest innovations in the document, for the first time granting general constitutional status to Jewish religious law (Halacha) in the Israeli legal system. Leaving aside the fact that Jewish law includes many aspects that are contrary to the choices and ways of life of the majority of the Jewish people in Israel, and many components that are incompatible with democratic principles, the document of principles does not mention any parallel sources of inspiration for lawmakers that highlight and reinforce democratic values. It is worth noting that this section was included in the document of principles despite the fact that it also includes the principle formalized in the Legal Principles Law of 1980, which granted status to “the principles of liberty, justice, honesty, peace and of Jewish heritage” as a residual source of inspiration for the Israeli legal system.
This section presents a tangible threat to basic and recognized principles of Israeli law, such as religious and cultural pluralism. Its adoption as part of a Basic Law will grant clear support for legislative and governmental actions in a similar spirit. The arguments concerning conversion and “Who is a Jew” are just two examples of issues that could be affected by this. Enshrining Jewish religious law as a source of inspiration for the Knesset’s actions will grant dramatic weight to initiatives that negate the activities of Jewish streams and communities that do not follow Orthodox religious law.
C. Ignoring the Principle of Equality
The Prime Minister’s document of principles consistently avoids any mention of the principle of equality before the law – the cornerstone of democracy and the foundation for the recognition of human and civil rights. The argument that this principle is embodied in Israel’s definition as a democracy (as claimed in the opinion of the Ministry of Justice) cannot be accepted in the context of the current constitutional initiative.
Israel’s character as a Jewish state has, of course, already been defined by the Knesset in the enactment of the previous Basic Laws. However, the sponsors of the “Jewish State” laws do not confine themselves to this, and seek to translate this definition into principles and manifestations. In precisely the same way, it is unacceptable to remain with the generalized and vague definition of Israel’s democratic character. This aspect should also be translated into detailed principles and manifestations – first and foremost the principle of equality.
In this context it is worth recalling that during the drafting of the Basic Laws (Human Dignity and Liberty, and Freedom of Vocation) the right to equality was not included in the list of constitutionally-protected rights. The omission of the general principle of equality from fundamental legislation addressing the principles of the State of Israel, twenty-two years after the enactment of the above-mentioned Basic Laws, highlights the weak status of this principle in Israel’s constitutional system. This constitutes a fundamental flaw and defect in Israel’s democratic character.
D. Failure to Address the Presence and Collective Rights of Ethnic and National Minorities
The document of principles completely ignores the presence of Arab and Druze citizens in the State of Israel and the fact that they belong to indigenous communities with their own unique ethnic, national, religious, and cultural characteristics and who maintain natural and historical affinities with this country. This fact was acknowledged in the Declaration of Independence (in the section appealing to “the Arab inhabitants of the State of Israel,”) and it is an essential feature of any law that seeks to emphasize the Jewish people’s right to self-determination in the State of Israel.
Although the Prime Minister’s document of principles omits the provision in the private bills to define Hebrew as the exclusive national language, the failure to mention this central reality in the document of principles is one of its key features. Although Israeli law clearly recognizes collective minority rights (the right to education in Arabic, the status of the religious communities, recognition of the Arabic language, the presence of an official Academy of the Arabic Language, and so forth), the document of principles refers only to the “individual rights… in accordance with any law” of the citizens of Israel, without any specific mention of the minority groups.
The document of principles acknowledges the right of every citizen to preserve their culture, heritage, language, and identity. However, it does not directly address the recognized ethnic and national groups in the State of Israel or their members’ common rights. The document of principles imposes a positivist constitutional obligation on the state “to preserve the heritage and the cultural and historical tradition of the Jewish people and inculcate this in Israel and in the Diaspora.” In the case of the general right mentioned at the start of this paragraph, by contrast, the state’s commitment is purely passive – to permit the citizen to realize this right.
A further example of this flaw appears in the provision that the Hebrew calendar is the official calendar of the State of Israel. This provision alters the current legal situation in Israel and is inconsistent with the reality of Israeli life and the custom of most of the public. Moreover, it ignores the fact that this calendar is alien to one-fifth of the citizens of Israel. A constitutional provision declaring that the Hebrew calendar and the Gregorian calendars are both official calendars would not only be more consistent with the choice of most Israeli citizens, but would also properly reflect Israel’s combined character as a Jewish and democratic state forming part of the family of nations – and one-fifth of whose citizens are not Jews.
E. Ignoring the Need to Create a Civil Common Denominator for All Israeli Citizens
In addition to ignoring the existence and constitutional status of the ethnic and national minority groups in Israeli society, the document of principles also ignores the need to nurture a civil common denominator for all the citizens and residents of Israel in order to enhance the sense of community and nurture values of tolerance, coexistence, and social solidarity. Just as a constitutional initiative emphasizing Israel’s character as the state of the Jewish people should have included clear recognition of the existence of minority groups, so too it should set the clear objective of nurturing civil cooperation. One way to achieve this is through manifestation of this cooperation in the public and symbolic domain of the state. In this context, the document of principles discusses Israel’s emblems and national days as a central component of its Jewish character. The constitutional enshrinement of Hatikva as Israel’s anthem, and of the menorah as its emblem, as well as Independence Day and the memorial days, is proper and natural. However, the document of principles implies that there are can be no other emblems or special days, neither now nor in the future. A constitutional initiative that sought to emphasize the values of civil cooperation would explicitly empower the legislator to add national emblems and national days in order to manifest the common denominator shared by all the citizens of the state. These values and objectives could also be manifested in the goals and basic principles section of the legislation.
F. Ignoring the Need to Nurture Social Justice and Mutual Responsibility in the State of Israel
One of the hallmarks of Zionist thought in all its shades has been the desire to base Jewish sovereignty on the values of social justice, a dignified existence from labor, and the advancement of equal opportunities. Whether in the thought of the Labor Zionist movement or in that of Revisionist Zionism, the Zionist movement’s vision for the Jewish state included the aspiration to build a model society that draws key social values from Jewish tradition, as manifested in the Declaration of Independence.
The document of principles and the private bills make no mention of this vision. As a result, Israel’s democratic character, and still more so its Jewish character (the declared purpose of the initiative) are partial and sterile. A basic law addressing the basic principles of Israel as a Jewish and democratic state should address basic social values and the vision of the Declaration of Independence to promote the “development of the country for the benefit of all its inhabitants.”
This document has attempted to highlight the deficiencies in the document of principles as presented by the Prime Minister, by way of a compromise between the initiators of the private bills and the opponents of the legislation. These flaws raise doubt as to whether there is any substantive difference between the compromise proposal and the original bills, and underscore the damage that can be expected to result from the legislative initiative.
As a Zionist movement, we believe that the principle of the existence of the nation state for the Jewish people and its character as a democratic state as expressed in the Declaration of Independence deserve clear constitutional enshrinement. It is improper to address this matter through a partial initiative that ignores all the remaining basic principles of Israel’s identity and proper conduct. A document of this type will actually damage the validity of the principle of a nation state and will cause more damage than good, impairing the image of the State of Israel and all strands of Israeli society.