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Why Israel Needs a Nation-State Law

July 24 2018

To much fanfare and controversy, the Knesset last week passed a basic law—a law with de-facto constitutional status—declaring Israel “the nation-state of the Jewish people.” The new law’s clauses grant official status to the Hebrew language (while granting unique “special status” to Arabic), the national anthem, and the Israeli flag; others proclaim that the state “will act to encourage and promote” Jewish settlement and “will be open for Jewish immigration.” While some of the law’s critics have claimed, wrongly, that it relegates non-Jews to second-class citizenship and spells the end of liberal democracy in the country, others have contended that it is a wholly unnecessary restatement of what is already in Israel’s Declaration of Independence. Emmanuel Navon argues that it is anything but unnecessary:

In 1992, the Knesset passed two basic laws: one on “human dignity and freedom” and one on “freedom of occupation.” Justice Aharon Barak (who presided over the supreme court between 1995 and 2006) proclaimed a “constitutional revolution” after the passing of those two basic laws. What Barak meant was that the High Court of Justice could now strike down laws passed by the Knesset if deemed “unconstitutional” (i.e., incompatible with the two new basic laws). Nowhere in the basic laws does it say that the court is entitled to use them to strike down regular legislation. Yet Barak unilaterally granted that power to the court in a 1995 ruling.

The “constitutional revolution” has affected Israel’s identity as a nation-state. The basic law on “human dignity and freedom” states that Israel is a “Jewish and democratic state.” But what happens when Jewish and democratic values conflict? No problem, Barak wrote in 1992: in case of a conflict, the word “Jewish” shall be interpreted by the court “with the highest level of abstraction.” In other words, it shall be ignored. Theoretically, the court could use in its rulings Israel’s Declaration of Independence, which defines Israel as a Jewish state. Yet the court itself ruled in 1948 that the Declaration of Independence has no constitutional value.

The court’s activism, combined with the “highest level of abstraction” with which Barak interpreted Israel’s Jewishness, was soon to be felt. The court ruled that a Jew cannot purchase a plot of land in a Bedouin village (Avitan case, 1989), but that an Arab can build a house in a village established by the Jewish Agency (Ka’adan case, 2000). The court was petitioned twice by NGOs (in 2006 and in 2012) to cancel Israel’s citizenship law so as to impose on Israel the Palestinian “right of return” through the back door via fictitious marriages. Though the court rejected both petitions, it did so with a razor-thin majority of six to five.

Other laws and symbols related to Israel’s Jewish identity have not been immune from petitions to the High Court of Justice. The “law of return” (which grants automatic immigration rights to Jews) might one day be struck down for being discriminatory; Israel’s national anthem (which expresses the Jews’ two-millennia faithfulness to their land), and flag (which has a Jewish symbol) could be challenged in court for ignoring the feelings of the Arab minority; and taxpayers could petition the court against the spending of their money on the preservation of Jewish identity in the diaspora. Until the passing of the basic law on Israel as a nation-state, the court had no constitutional basis to reject such petitions and to protect Israel’s Jewishness. Now it does.

Read more at Jerusalem Post

More about: Aharon Barak, Israel & Zionism, Israel's Basic Law, Israeli Declaration of Independence, Supreme Court of Israel

 

The Summary: 10/7/20

Two extraordinary events demonstrate something important about Israel’s most fervent adversaries. One was a speech given at something called The People’s Forum (funded generously by Goldman Sachs), which stated, “When the state of Israel is finally destroyed and erased from history, that will be the single most important blow we can give to destroying capitalism and imperialism.”

The suggestion that this tiny state is the linchpin of a global, centuries-old phenomenon like capitalism goes well beyond anything resembling rational criticism. Even if Israel were guilty of genocide, apartheid, and oppression—which of course it is not—it would not follow that its destruction would help end capitalism or imperialism.

The other was an anti-Israel protest that took place in front of New York City’s Memorial Sloan Kettering Cancer Center, deemed “complicit” in Israel’s evils. At organizers’ urging, participants shouted their slogans at kids in the cancer ward, who were watching from the windows. Given Hamas’s indifference toward the lives of Gazan children, such callousness toward non-Palestinian children from Hamas’s Western allies shouldn’t be surprising. The protest—like the abovementioned speech—deliberately conveyed the message that Israel is the ultimate evil and its destruction the ultimate good, cancer patients be damned.

The fact that Israel’s adversaries are almost comically perverse does not mean that they can be dismissed. If its allies fail to understand the obsessive and irrational hatred that it faces, they cannot effectively help it defend itself.

Read more at Mosaic