The trouble with Israel’s Jewish nation-state law

DAVID HOROVITZ

She had, she made clear, no objection to the text declaring Israel to be “the national home of the Jewish people”. Quite the reverse. But to ensure that the law fully reflected modern Israel’s founding principles, she argued, it also needed to include Israel’s commitment to “equality for all its citizens”. In the Declaration of Independence, she noted, Israel promises “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”.

Few if any of Israel’s Arab Knesset members would have voted for the Bill even in the form she wanted, Livni acknowledged – since since rather than a Jewish and democratic state, they seek to designate Israel as the state of all its citizens. But had that “equality” phrase been inserted, most or all the rest of the opposition would have supported it, and the law would have garnered about 100 of the 120 Knesset members’ votes, rather than squeezing through, as it did, by 62 votes to 55. How impressive such overwhelming support would be, she argued to coalition members, how resonant an endorsement of Israel’s central principles.

Livni said coalition MKs derided her for her naivete. Prime Minister Benjamin Netanyahu didn’t want opposition support for the law. Rather, she said they told her, he wanted to send a message to the Israeli public that he and his coalition colleagues were the dependably nationalist defenders of Jewish Israel.

Echoing her assertion, Yohanan Plesner, a former Kadima MK, and today the head of the Israel Democracy Institute, charged on 29 July that Likud legislators had sought to create a picture of “patriots and non-patriots” by means of the law and its divided support in the Knesset. “The current legislation was politically motivated, as a precursor to an election campaign where Netanyahu and the Likud could create a situation of patriots and non-patriots,” he claimed.

In the 10 days since the law was passed, the controversy surrounding it, rather than dissipating fairly quickly, as most controversies do, has intensified. Some critics consider the law to constitute the legislative codifying of discrimination, and therefore bitterly interpret it as the beginning of – or another slip in the continuing slide toward –  the end of Israeli democracy.

Others share Netanyahu’s declared assertion that it marks a positive “pivotal” moment in the history of the modern state, with the belated formalised legislation of Israel as the state of the Jews, and argue that Israel’s democratic principles are already entrenched elsewhere in existing legislation such as the Basic Law: Human Dignity and Liberty. This Basic Law establishes “the values of the State of Israel as a Jewish and democratic state” and provides that “there shall be no violation of the life, body or dignity of any person as such”. While none of Israel’s Basic Laws specifies “equality”, this 1992 law is considered by some jurists to provide for it.

Until Saturday night, the most resonant objections to the law came from Israel’s 130 000-strong Druze community. While several MKs from the Joint (Arab) List protested the law as discriminatory, vowed to seek international intervention, and even enlisted Palestinian Authority President Mahmoud Abbas in their battle against it, their criticism made little impression on the Israeli Jewish mainstream; they are not Zionists.

But complaints of discrimination from the Druze, who fight alongside the Jews in the Israel Defence Forces and have paid a heavy price in lost lives in defence of the nation, were internalised and even endorsed by some government ministers. Finance Minister Moshe Kahlon (Kulanu) called the final wording of the law hasty and mistaken; the hawkish Education Minister and Jewish Home leader Naftali Bennett said the government had to find a way to heal the wounds it had inflicted on “our brothers who stand shoulder-to-shoulder with us on the battlefield and made a covenant with us”. Both ministers called for the law to be amended. Netanyahu, who held a meeting on 27 July with Druze leaders, and another on Sunday, made no commitment to doing so.

As of 28 July, however, argument about the law had shifted into the familiar battleground of partisan politics. In a live television interview that night, Zouheir Bahloul, an Arab member of a Zionist political party, the Zionist Union, announced his resignation from the Knesset, branding the law a “drastic act… that makes the Arab population officially, constitutionally outside the realms of equality in Israel”.

The opposition’s discomfort and division may be music to the ears of the Netanyahu coalition – and a welcome distraction from the central question of the law’s threat to Israeli democracy.

Netanyahu, at the weekly cabinet meeting on 29 July, robustly insisted that criticism of the law, which he called the “essence of the Zionist vision”, was “nonsense”. “The State of Israel is the nation-state of the Jewish people, with full equality of rights for all its citizens,” he said. “This is the meaning of the words ‘Jewish and democratic state’,” he said. “Does the fact that our flag has a Star of David invalidate the individual right of any Israeli citizen? Nonsense. This statement ensures that there will be no other flag. Does the statement that Hatikva is our national anthem detract from the personal rights of anyone in Israel? Nonsense. It says there will be no other anthem.”

Except, of course, that those phrases  – “full equality of rights for all its citizens” and “Jewish and democratic state” – do not appear in the Jewish nation-state law, despite the efforts of the likes of Livni and maverick Likud MK Benny Begin.

Netanyahu also rounded on his critics from the left, calling their objections to the law hypocritical. “Over decades, the opposition has preached to us that we must withdraw to the 1967 lines in order to ensure that Israel remains the national state of the Jewish people in which there is a Jewish majority in the state. Then suddenly when we pass a basic law to ensure exactly this, the left cries out in protest?”

The Knesset’s new Jewish nation-state law is, inevitably, being appealed in the Supreme Court, which may find a basis to intervene, or may consider the law’s provisions to be declarative and/or not contradictory to Israel’s already legislated Jewish and democratic principles.

Enshrining in Israel’s Basic Laws, the closest thing we have to a constitution, principles such as Israel as the “historical homeland of the Jewish people” with Jerusalem as its capital, the Star of David on its flag, and Hatikvah as its anthem, may well have been overdue. But in a country that, absolutely legitimately, grants automatic citizenship under the Law of Return to Jews, the equality of all Israeli citizens is a commitment that also requires the firmest establishment.

There is no contradiction in being a Jewish state that opens its doors wide to all Jews, and in being a democracy that stands for full equality for all who live here. Indeed, the capacity to reconcile those two principles goes to the heart of Israel; it makes Israel unique and rightly celebrated.

Those foundational principles must flourish together. Passing a piece of landmark legislation that needlessly and deliberately – as shown by the legislative process – omitted one of them is plainly harmful to Israel’s reputation. Time will tell if it has practical implications, as a legislative cover for discrimination, but it is also, by dint of what it omits, potentially harmful to Israel’s sense of itself and what we stand for.

Earlier iterations of the legislation did include references to Israel as a democracy. And three years ago, Begin drafted a proposed text of the law that stated: “Israel is the homeland of the Jewish people, based on the foundations of freedom, justice and peace as envisioned by the prophets of Israel, and upholds equal rights for all its citizens.”

In its final, very deliberate wording, the law smacks of narrow political interest outweighing the national good. Rush-writing the nascent state’s core principles 70 years ago, amid pandemonium and with war imminent, Israel’s founders, patriots all, did a far better job.

• David Horovitz is the editor of the Times of Israel.