On July 19, 2018, Israel’s parliament, the Knesset, passed the highly controversial Basic Law: Israel Nation State of the Jewish People, also known as the Nation State Law. The law passed by a vote of 62-55, after 7 years of debate. The Israeli and international communities reacted immediately. The Association for Civil Rights in Israel petitioned to have it declared unconstitutional. The Druze community led a protest rally of 50,000, claiming they were being treated as ‘second class citizens.’ Several Israel Prize winners petitioned the Supreme Court for an amendment to add Arabic as a state language. The EU criticized it. Many politicians and journalists published newspaper articles and op-eds in opposition.
What is the meaning of this law and why has it generated such a huge backlash?
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Israel’s Basic Laws are, in essence, Israel’s evolving constitution. Legislators in the time of the first Knesset debated whether and when to write a constitution. They agreed to pass laws called ‘Basic Laws’ that stated individual rights and principles about governance. When complete, the entire body of Basic Laws will become the constitution.
In addition to the Nation State Law, there are 11 other Basic Laws (‘the Laws’):
- The Knesset (1958)
- State Lands (1960)
- The President (1964)
- The Government (1968)
- The State Economy (1975)
- Israel Defense Forces (1976)
- Jerusalem (1980)
- The Judiciary (1984)
- The State Comptroller (1988)
- Human Dignity and Liberty (1992)
- Freedom of Occupation (1992)
Their status varies. Some are ordinary laws, while others have ‘entrenchment clauses’ with the power to overturn legislation. The Nation State Law has such an entrenchment clause.
Mitchell Bard suggests that legislators proposed the Nation State Law in 2011 in response to internal and external challenges to Israel’s identity as the Jewish state. Three Arab Knesset members had proposed a bill that would transform Israel into a binational state, end the Law of Return, and eliminate her Jewish symbols. ‘Post-Zionists’ within Israel sought to eliminate references to Israel’s Jewish culture and history. Palestinians and their supporters refuse to recognize Israel as a Jewish state. Electoral considerations were also potentially relevant to the timing; Benjamin Netanyahu’s supporters were in favor of the Nation State Law.
What Does the Nation State Law Actually Say?
This is the text of the Nation State Law:
“Basic Principles 1. (a) The Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established. (b) The State of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and historical right to self-determination. (c) The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.
State Symbols 2. (a) The name of the State is “Israel”. (b) The State flag is white, with two light-blue stripes close to the edge, and a light-blue Star of David in its center. (c) The State emblem is a seven-branched menorah with olive leaves on both sides, and the word “Israel” at its base. (d) The State anthem is “Hatikvah”. (e) Details regarding the State symbols shall be determined by law.
State Capital 3. Jerusalem, complete and united, is the capital of Israel.
Language 4. (a) Hebrew is the State language.
(b) The Arabic language has a special status in the State; arrangements regarding the use of Arabic in state institutions or vis-à-vis them will be set by law. (c) Nothing in this article shall affect the status given to the Arabic language before this law came into force.
Ingathering of the Exiles 5. The State shall be open for Jewish immigration, and for the Ingathering of the Exiles.
The Connection with the Jewish People 6. (a) The State shall strive to ensure the safety of members of the Jewish People and of its citizens, who are in trouble and in captivity, due to their Jewishness or due to their citizenship. (b) The State shall act, in the Diaspora, to preserve the ties between the State and members of the Jewish People. (c) The State shall act to preserve the cultural, historical and religious heritage of the Jewish People among Jews in the Diaspora.
Jewish Settlement 7. The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening.
Official Calendar 8. The Hebrew calendar is an official calendar of the State, and the Gregorian calendar shall serve alongside it as an official calendar; the use of the Hebrew calendar and the Gregorian calendar shall be determined by law. Independence Day and Memorial Days 9. (a) Independence Day is the official national holiday of the State. (b) Memorial Day for the Fallen in Israel’s Wars, and the Holocaust Martyrs’ and Heroes’ Remembrance Day, are official memorial days of the state. Days of Rest and Statutory Holidays 10. The Sabbath and the Jewish holidays are the established days of rest in the State; non-Jews have the right to observe the days of rest on their days of Sabbath and holidays; details regarding this matter shall be determined by law.
Related reading: New York Times’ Myths About Israel as a Jewish State
The most important contribution of the law is its establishing as a constitutional principle Israel’s Zionist foundation. Netanyahu said, “It codifies Israel’s status ‘as the national home of the Jewish people.’” It also says, unambiguously, that the Jewish people alone have the right to “national self-determination” in their homeland.
The second major contribution is the requirement that judges consider Israel’s Jewish character when they interpret laws. The Basic Law: Human Dignity and Liberty already requires judges to refer to democratic principles and individual rights.
The law restates fact: Jerusalem is already the capital. It also states that the majority language will be the national language. It promotes Jewish settlement around the country. The law is democratic because it was passed by democratically elected representatives.
Support and Opposition
Bard wrote that 58% of the Israeli public supported the law, 34% opposed it while centrists were divided. 85% of right wing voters and 92% of Likud supporters favored the law at the time of Bard’s article. The law evokes intense emotions. The debate centers on whether Israel is – or should be – defined as a Jewish or as a democratic state. Some objected to Section 4, in which Arabic was eliminated as an official language. Netanyahu sought to appease the Druze community, which considers itself to be Israeli patriots, by working with their leaders to acknowledge their contribution, and he provided legal status to benefits for minorities. Israeli Arabs might feel excluded as ‘second-class citizens,’ according to Penina Sharvit Baruch at the Israel Institute for National Security Studies.
Bard described opposition in North America and Israel. The Jewish Federations of North America said it was a “step back for minorities.” The American Jewish Committee said it would divide the American and Israeli communities. Diaspora Jews expressed concern that the law would devalue their significance and reduce their influence in Israel. Rick Jacobs, President of the Union for Reform Judaism said that “millions oppose it” because the law does not use the word ‘equality.’ Dr. Amir Fuchs at the Israel Democratic Institute (IDI) agreed:
No country in the world… has not specifically enumerated the right of equality in its constitution; therefore, it is difficult to understand why this author of this bill insist not to include this important value. The right to equality is embedded in the values mentioned in the Declaration of Independence, which has been the definitive document framing the character of the State of Israel for the past 70 years.
Yohanan Plesner of the Israel Democracy Institute said the law was “jingoistic and divisive” and that it “threatens to drive a wedge between Israel and the Diaspora, and fuel the campaign to delegitimize Israel.” Opponents in Israel and outside also said the law legalized discrimination against Arabs, it would promote Jewish-only settlement, damage Israel’s international reputation, and that it is not democratic.
Professor Ruth Gavison, an Israel Prize winner for her legal research and an emeritus professor of law at the Hebrew University of Jerusalem, said in 2013 that “she did not support the constitutional anchoring of the vision of the state, and especially the enactment of the Jewish Nation State Basic Law.” She said that the Supreme Court should not decide the constitutionality of the law. It’s not clear whether the Court has the authority to strike down Basic Laws. The issues at the core of this Basic law are political and ideological and beyond the professional training and expertise of judges. Finally, “consequences of engagement of the Supreme Court with the debate would be dire; the judgement will be interpreted as moral and public approval of the law.”
The Court has deferred until June 2020 its hearing on the constitutionality of the Nation State Law.
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