A critical look at why the Nation-State Law is unwelcome

JUDGE DENNIS DAVIS

The problem with the new legislation is best illustrated by a petition brought before the court by members of the Druze community. They argue that this Act violates their basic rights, such as a right to equality, and deems that non-Jewish minorities have little status in Israel.

In their petition, they contend that not only does the law define the role of the State with an emphasis on its Jewishness, but it “enshrines the collective rights of the Jewish majority”.

The Arab minority, which constitutes 20% of Israel’s citizens, receives no recognition at all of its collective rights. And beyond that, “it does not even win recognition as a minority in Israel”, according to the petition.

There is also an argument that the clause that encourages the establishment of communities for Jews only contravenes previous High Court rulings. Particular reference is made to a decision in 2000 of Ka’adan versus The Israel Lands Administration. In this case, five judges decided that the State could not allocate land to entities which established communities for Jews only.

The fact that the High Court is unlikely to strike down a Basic Law is beside the point. The key question concerns the contents of this legislation and its implications for Israel going forward.

Prime Minister Benjamin Netanyahu has argued that “in the Israeli democracy we will continue to protect the rights of both the individual and group; this is guaranteed, but the majority has rights too and the majority rules”.

Majority rule is not unqualified.

Readers who understand South African democracy well know that our Constitution places certain basic rights beyond the reach of the majority.

While Israel does not have a written Constitution, various basic laws hold legal implications beyond that of ordinary legislation. Central to the idea of a constitution, and even a basic law, is that certain rights are placed beyond the reach of a majority.

If the argument that the majority rules applied in South Africa on a simple majority, then Section 25 of our Constitution, the property clause, would probably be repealed. So would many other protections granted to a range of minority communities.

The rights of dignity, equality and freedom should not be placed at the mercy of a transient majority. It is instructive that this legislation was passed by a small majority.

A more than 20% minority group now finds its language, which prior to this legislation was an official language, is downgraded to a more ambiguous “special status”.

This clearly fuels legitimate perceptions of a discriminatory practice. So does this clause: “The State sees the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.”

In effect, this promises a group areas system in which Jewish settlement will take place, to the exclusion of other communities who claim to be citizens of the country.

Doubtless, these groups will also feel that the provision that the Hebrew calendar is the official calendar of the State – although the Gregorian calendar will still have official status – reflects a clear change in emphasis of the country’s political practice. In a global world, one might ask what purpose is served by this change.

Since its creation, Israel has grappled with seeking to achieve a balance between being the homeland of the Jewish people and a democracy.

In broad terms, this reflects the core tension between the universalism and particularism within Judaism.

This new legislation puts an end to the argument. The democratic component has given way to the hegemony of the Jewish element.

Israel’s founders desired to create a democracy in which all who lived in the country would be recognised as full citizens, whether Jewish or Arab. By so firmly rejecting any attempt to reconcile both elements, Israel has now set itself upon a path in which it would be far more difficult to claim that it is truly a democratic State. That is the tragedy of this legislation.

To those who, doubtless, will attack critics of the legislation, it should be remembered that the law passed by 62 votes to 55. There is a very significant body of Israeli citizens who wish to live in a democratic State.

Sadly, this wish is unlikely to be fulfilled as long as this legislation continues to operate. And with it, an increasing criticism will draw closer analogies between Israel post this law and apartheid South Africa.

• One of South Africa’s most respected legal minds, Judge Dennis Davis was appointed to a personal chair of Commercial Law in 1989. In 1998 he became a Judge of the High Court, and the President of the Competition Appeal Court in 2000. In 2013, Davis headed a committee that was appointed to review South Africa’s tax policy framework.