By Alex Shkurko
Various versions of the proposed “Basic Law: Israel as the Nation State of the Jewish People” have received much press over the last few months and have largely been met with outrage and disdain. They attempt to define the State of Israel as the nation-state of the Jewish people and enshrine its symbols in Israel’s ‘basic laws’, which hold constitutional-level standing. Furthermore, they uproot a fragile balance between democracy and Jewish identity, and threaten the status and rights of Israel’s minority citizens. The three versions of the bill vary in the degree to which they push the boundaries of democracy and additionally posses certain distinctions and incongruities (these will be discussed in the paragraphs below). However right in their intentions, global responses to the proposed laws largely reflected a misunderstanding of the subtle political dynamics that characterize the two original versions of the bill, which were presented by individuals from two right-wing groups. The third bill, proposed by Prime Minister Netanyahu to temper the other, more extreme bills, is in essence a pared-down version. It is this subtle and dangerous political dynamic that we wish to explore further.
It was the original two bills that piqued international curiosity due to their insulting demotion of Arabic from an official language (one that appears adjacent to Hebrew on street-signs) and the general implication that these bills would usurp rights and constitutional standing from Israel’s Arab and Palestinian populations, and other smaller minorities. The proposals raise long-fought-over questions about Israel’s Jewish and democratic character, and the sensitive balance between equality and preferential treatment for Jews.
The first two versions were put forth by members of two right-wing entities, Ze’ev Elkin of Likud and Yariv Levin, Ayelet Shaked and Robert Ilatov, of Likud, Jewish Home and Israel Beyetenu parties, respectively; their bills differ fundamentally from Netanyahu’s edited version, in how they contextualize Israel’s democratic nature. Netanyahu declares Israel to be a “Jewish and democratic state” while the original right-wing bills identify it as having a “democratic” form of government. Critics have derided the latter as alluding to Israel solely having a democratic election process and not being a state committed to liberal democratic principles. Furthermore, Elkin’s bill defines Israel as the “nation-state of the Jewish people” and reaffirms Israel’s Jewish symbols and its commitment to being a homeland for the Jewish people.
Due to the absence of a constitution and the divisive nature of Knesset, the Israeli Supreme Court has often been tasked with ruling on fundamental state matters. Contained in Elkin’s bill were additional controversial clauses. For example, one would have allowed “members of a single religion or national, to establish a separate communal settlement” which would have prevented certain groups from restricting other groups from migrating to their neighborhoods; this was struck down in court. The original right-wing versions also attempt to reduce Arabic to a special status, a demotion from its current position as an official language. This clause, in particular, pokes at Israeli-Arabs and Palestinians. In the competing edited bill submitted by Netanyahu, after the initial right-wing bills were proposed, Netanyahu stepped away from the demotion of Arabic to a special status.
To understand the greater implications of these bills, we must discuss the role Israel’s supreme court plays in their government. Lacking a constitution, the government operates on a set of ‘basic laws’, one of which is called the Basic Law of Human Dignity and Freedom, which was passed only recently in 1994. It guaranteed not only the protection of life, body, dignity, property and privacy, but also declared Israel as both Jewish and democratic. This has been a fundamental part of Israel’s identity and the proposed bills draw upon redefining the state in a way that emphasizes its Jewish character. It is known that Jews are the majority in Israel, with Arabs and Palestinians making up 25 percent of the populace, thus it is reasonable to call Israel a Jewish state simply because of the makeup of its citizens. However, these bills are attempting to solve questions of identity and nationalism and demographics with a blunt stroke of the pen, eroding equality with it. If the Arab and Palestinian minorities were to grow, would Israel still be a Jewish state? This question is on the minds of many around the world; the conservative right sees it as an existential threat, which explains their rather blunt response to the question.
Basic laws are notoriously difficult to amend, but even more than that, they hold a legal weight that is unparalleled in Israel. Up to this point, the Israeli Supreme Court has been holding Jewish and democratic principles at equal weights, much to the chagrin of Israel’s right-wing Knesset members. It’s their intention to change that cycle.
One would suspect that there are greater motivations to pointed language than to simply reaffirm what was already known: if the bills were to be passed, they would impede Israel’s Supreme Court from interpreting matters of national identity, religion’s role in society, etc. per the overarching legal power of the Basic Law of Human Dignity and Freedom which affirmed Israel’s democratic and Jewish identity.
Unfortunately the word “equality” appears nowhere in Israeli Prime Minister Netanyahu’s version of the so-called “Jewish Nation-State Bill”. While affirming certain founding principles that declare the State of Israel as the national home of the Jewish people and declaring that the right to self-determination inside the State of Israel is unique to the Jewish people, the bill also declares that the State of Israel “is a democratic state, established on the foundations of liberty, justice and peace in light of the vision of the prophets of Israel, and realizes the individual rights of all its citizens under law.” This may be particularly enraging to those that are indigenous to Israel. While being otherwise straightforward, the omission of equality as a fundamental principle of the state is alarming and leads to the question of what motivates one to exclude it in a basic law bill of great importance, despite the “spirit” of equality perhaps appearing throughout, as Netanyahu has argued in response to critics.
Founded as a Jewish state in 1948, the Declaration of Independence suggested that democracy would be balanced with the categorically Jewish endeavor of the Zionist enterprise. Along with a commitment to democratic principles, social and political equality was explicitly guaranteed to all its inhabitants. Democratic principles were not placed above its Jewish character, which has allowed for both the Law of Return, the automatic granting of citizenship to Jews if they wish to immigrate to Israel, and the 1992 Basic Law on Human Dignity and Freedom, which guarantees liberal democratic rights such as free movement, body, property and privacy, and codifies Israel’s identity as both a Jewish and democratic nation. Israel uniquely has never had a constitution and instead operates on a set of basic laws that function as guiding principles in lieu of a codified constitution. The “nation-state” bill is attempting to be another basic law that carries with it a hefty legal gravitas that will inform judicial rulings ad infinitum.
The omission of the concept of equality, while perhaps being implied and obvious in the spirit of Netanyahu’s version, is still notable due to its implications for Israel’s non-Jewish citizens in future Supreme Court rulings, on questions of property for example, which are fundamental in Palestinian-Israeli conflict. One mustn’t think too hard to foresee challenges to Israel’s definitively unequal Law of Return that only allows Jews and not Palestinians, who fled or were kicked out, to return with the promise of citizenship and benefits. Other claims of inequality may be made (for example, the disproportionate funding of settlements in the West Bank and the lack of aid for Palestinian inhabitants). While Jews receive tax benefits and subsidies, Palestinians there live in increasingly dire conditions.
Furthermore, it’s troubling to see Israel’s democratic nature be usurped by politically motivated nationalism. In an increasingly fractured society characterized by hostile relations between Jews and Palestinians and Arabs, it’s hard to see this as a positive foretelling of future relations. Arabs and Palestinians will only feel more antagonized. More than that, though, there would be the shedding of a unique doctrine that has guaranteed rights to all citizens while retaining Israel’s unique Jewish character. David Ben-Gurion, Israel’s founding Prime Minister, chose to imbue the state and its citizens with a sense of equality before the law. 68 years later, it seems counterproductive and even severely damaging to take steps back from those basic principles of equality.
Presently, the proposed right-wing bills have been superseded by a Netanyahu bill that is responsible for ending the Knesset session and prompting elections. It has blown up Netanyahu’s coalition and has put him in a place of weakness due to the combined popularity of his opponents and their new coalition. This bill has still not been voted on conclusively due to the elections taking place later this year. Despite that, it holds an important role in Israeli politics and serves as a litmus test for Israeli-Arab relations at present and the hopes of Israel’s right. The upcoming elections will not only determine the ruling coalition and the country’s next Prime Minister, but also resolve the question of the “nation state” bill. With a left-wing coalition, the bill will likely be thrown out or redacted, but if Netanyahu’s new coalition wins the elections, we will finally see a Knesset vote on the matter.
Photo by Israel Tourism