Israel's High Court and the Jewish Nation

H-Nationalism Nationalist Constitutionalism – Israel’s High Court and the Jewish Nation Law

Blog Post published by Yoav Peled on Monday, August 9, 2021

Nationalist Constitutionalism – Israel’s High Court and the Jewish Nation Law

In this post Yoav Peled, Tel Aviv University, discusses the significance of the recent decision by Israel’s High Court of Justice to uphold Basic Law: Israel – the Nation State of the Jewish People.

On December 22, 2020, Israel’s Hight Court of Justice (HCJ) upheld by a 10:1 majority (with George Kara, the only Arab justice on the court, dissenting) Basic Law: Israel – the Nation State of the Jewish People (known, for short, as the Jewish nation law), enacted in 2018 (HCJ 5555/18). The law stated, inter alia, that Jews have a unique right of national self-determination in the State of Israel; that unified Jerusalem is the state capital; and that the state will work to promote settlement by Jews, without specifying the territorial boundaries of that settlement, if any. In addition, the status of the Arabic language was downgraded from official state language to a language enjoying special status. Unlike Israel’s Declaration of Independence, the law did not include a commitment to equality of rights for all citizens; unlike two other basic laws, enacted in 1992, Human Dignity and Freedom and Freedom of Occupation, as well as Basic Law: The Knesset, it did not mention the word “democracy.”

Israel’s Declaration of Independence, adopted in May 1948, stipulated that “a Constitution [would] be drawn up by a Constituent Assembly not later than the first day of October 1948...” Due to the war that followed, the Constituent Assembly was elected only in January 1949. Instead of adopting a constitution, however, the Assembly declared itself to be the First Knesset and decided to postpone indefinitely the writing of a formal written constitution. Instead, it resolved that a constitution would be constructed gradually, through the legislation over time of a series of Basic Laws.

Since 1950, a number of laws designated “basic laws” have been passed, but until 1992 none of them had dealt with human rights and, with few notable exceptions, none were entrenched by either formal or substantive requirements or given the power to override other, non-basic pieces of primary legislation. Basic laws Human Dignity and Freedom and Freedom of Occupation, which protect human rights, were described as a “constitutional revolution.” The revolutionary nature of these laws did not lie in the introduction of rights discourse into Israel’s political and legal culture. This had been done already by a body of judicial decisions that had established the basic liberal freedoms, beginning in 1949. The novelty lied in that the Knesset for the first time limited its own power to interfere with certain fundamental human rights, thus opening the way [1] for judicial review of primary legislation.

It was on the basis of Basic Law: Human Dignity and Freedom that the Court made its landmark

Citation: Yoav Peled. Nationalist Constitutionalism – Israel’s High Court and the Jewish Nation Law. H-Nationalism. 08-09-2021. https://networks.h-net.org/node/3911/blog/vistas/8040258/nationalist-constitutionalism-%E2%80%93-israel%E2%80%99s-high-court-an d-jewish Licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. 1 H-Nationalism decision in the Qaadan case. The Qaadans, a citizen-Palestinian couple, petitioned the Court in 1995 against the Israel Land Authority, which owns 93% of the land in the country, that had refused to lease them land in Katzir, a “community settlement” being established by the Jewish Agency. In a path-breaking decision, Chief Justice Aharon Barak determined that it was illegal for the state to discriminate between its Jewish and Arab citizens in the allocation of state land, even when that discrimination was affected indirectly, through non-governmental “national institutions” (the Jewish Agency in this case). The legitimate Zionist interest in “Judaizing” various regions of the country, Barak ruled, could not overcome the liberal principle of equality, inherent in “human dignity.” To counter the argument that the equality principle was compatible with a “separate but equal” allocation of land, Barak asserted that “a policy of ‘separate but equal’ is by its very nature unequal … [because] separation denigrates the excluded minority group, sharpens the difference between it and the others, and embeds feelings of social inferiority.” Significantly, Barak based this assertion on the U.S. Supreme Court’sBrown decision, and determined that “any differential treatment on the basis of religion or nationality is [2] suspect and prima facie discriminatory.” The Jewish nation law was born out of concern in right-wing quarters that the Qaadan decision specifically, and the “constitutional revolution” in general, have upset the delicate balance between the Jewish and democratic elements in Israel’s constitutional law. Since human dignity and freedom were entrenched in a basic law, so the argument went, while Israel’s definition as a Jewish state was not, Israel’s democratic values have gained the upper hand over its Jewish values, and the balance between them had to be restored. Fifteen appeals against the constitutionality of the Jewish nation law were submitted to the HCJ by Arab and Jewish individuals, civil rights organizations, and one political party. The main argument of these appeals was that the new basic law amounted to an unconstitutional constitutional amendment in that it violated Israel’s basic value system, which is both Jewish and democratic, by affirming the legal superiority of Jews and denying the country’s non-Jewish citizens equal citizenship status. The Court, therefore, had to decide two issues: (1) whether it had the right to declare a basic law, which is a building bloc of Israel’s future constitution, unconstitutional, for transgressing Israel’s character as a democratic state; and (2) whether the Jewish nation law merited such a determination by violating the principle of equal protection of all citizens.

Writing for the majority, Chief Justice Esther Hayut stated that she would have been happier to see the law reassert the value of equality, but her unhappiness was not sufficient to declare the law an unconstitutional amendment, even though in principle the Court had the authority to do so. This primarily for two reasons, one formal and one substantive. Formally, the Jewish nation law is only one chapter in an evolving constitution, and it can be expected that sometime in the future another chapter will affirm the principle of equal protection. As it is, the principle of equality is already grounded in a number of laws and judicial decisions and the Jewish nation law does nothing to change that. Substantively, entrenching the Jewish character of the state in its constitution does not infringe on the rights of non-Jewish citizens as individuals, not even by downgrading the official status of their language, and therefore it does not harm their equal

In his dissent Justice Kara disputed all of these findings. In reality, he pointed out, notwithstanding the fictional “assumption” of equality between Arabs and Jews, Israel’s Arab citizens have suffered a long history of discrimination, and the effects of the new law should be evaluated in this context. Moreover, the principle of equality is not affirmed directly by any constitutional document (the Declaration of Independence that promises equality does not have a constitutional status). It was derived by the Court from human dignity and is, therefore, a second order value which cannot be relied on to balance Jewish national interests. Viewed in this light, the law gives a constitutional stamp of approval to national discrimination and reverses the very modest steps taken to ameliorate it, most specifically the Qaadan decision.

The affirmation of the Jewish nation law by the HCJ, the most liberal government institution in Israel, with the consent of all of its liberal Jewish members, attests to the priority of what is perceived as Jewish national interests over the principle of equality before the law in Israel’s constitutional makeup. By upholding that law the Court in effect superseded its ownQaadan decision and once again announced to Israel’s Palestinian citizens that the State of Israel is not their state.

[1] For details see Doron Navot and Yoav Peled, “Towards a Constitutional Counter-Revolution in Israel?” Constellations, 17:3 (2009), 429-445. [2] All quotations in this paragraph are from HCJ 6698/95.

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