Israel’s “Jewish State” Bill: Does it Really Change Anything?

The debate taking place in Israel on the bill for a Basic Law titled Basic Law: Israel the Nation State of the Jewish People has seen ebbs and flows since the idea was first floated in 2011. The bill, which aims to emphasize Israel’s Jewish character, is revived periodically and different Members of Knesset proposed different possible versions for it. If approved by the Knesset it would become part of Israel’s partial constitution- a number of Basic Laws that the Supreme Court has declared to have constitutional status even though they were enacted by the Knesset in the same manner as all other legislation.

Several prominent figures expressed their skepticism of the bill, even the not-so-left Israeli President, Minister of Justice, and Attorney General. The concern often raised, especially by liberal Zionists, is that the bill constitutes a threat to democracy. Some also see it as having a negative impact on the rights of the Palestinian citizens in Israel who are twenty percent of the population. But is this indeed its implication? Does this proposed bill drastically change the existing constitutional framework in Israel or the rights of the Palestinian citizens?

To tackle these questions, I will begin with discussing the origins of this bill and context of its emergence. I will then discuss the important components of the bill and compare them with the existing legal and constitutional arrangements. In doing so, I will unpack how Israeli law protects and enshrined the “Jewish character” of the state through a multifaceted and multilayered combination of Basic Laws, fundamental principles, legislation and case law. I will conclude with some observations about the debate on this bill and the legal system in Israel in general.
 

The Emergence of the Bill

The current bill’s origins are in a similar bill which was introduced in August 2011 by Avi Dichter, then a Member of Knesset for the “centrist” Kadima party.[1] Dichter’s initiative was supported by about forty Members of Knesset including members of Kadima, the Likud, and Ehud Barak’s short lived Atzma’out. While Dichter presented this bill as a move to strengthen the Jewish character of the state in response to the failed attempt by the Palestinian Authority to join the United Nations in 2011, it seems that it had more to do with his attempts to create headlines: he was an opposition backbencher who aspired to lead his party in the next general elections. In defending the bill, Dichter said that he proposed it “to block the aspirations of the extreme rightwing and extreme leftwing to turn the state into the state of all its citizens in the sense of cancelling out it character as a Jewish and democratic state and leaving it as a democratic state.”[2]

Dichter abandoned the bill after pressure from his then party head, Tzipi Livni. The idea of a similar bill, however, resurfaced after the 2013 elections. The extreme rightwing party Habayit Hayehudi (The Jewish Home) demanded to add the enactment of such a Basic Law as part of the coalition agreement with the Likud. Thus, the promotion of this bill became an obligation for the ruling coalition. Accordingly, two Members of Knesset, one from Habayit Hayehudi and one from the Likud, co-sponsored a bill which was introduced in the hope of obtaining Government sponsorship. Livni, who was then Minister of Justice, still opposed the bill, even in its new version. In order to achieve a compromise draft she appointed Professor Ruth Gavison –a right-leaning renowned constitutional theorist from the Hebrew University- to come up with a draft that would satisfy all of the coalition partners. Gavison provided a position paper recommending not to enact the Basic Law for a number of reasons, including the lack of consensus on the bill, its limited utility and the potential of turning political questions and issues into legal ones which will be monopolized by the judiciary.

The discussion on this bill was revived again after the collapse of the most recent round of negotiations between Israel and the PLO in April/May 2014. The Israeli Prime Minister Benjamin Netanyahu tried to blame the collapse on the Palestinians’ refusal to recognize Israel as “the nation-state of the Jewish people”, and declared that he will lead the efforts for passing a Basic Law that would entrench that characterization of Israel. As he framed it, this was his reaction against “those who do not recognize this natural right and who seek to challenge the historical, legal and moral justification for the existence of the state of Israel as the nation-state of our people.”

In November 2014, the disagreement over this bill became (a not so central) part of the crisis in Netanyahu’s coalition with the Likud and Habayit Hayehudi pushing for its adoption and Livni’s Hatnu’a and Lapid’s Yesh Attid opposing the proposed drafts. The bill was eventually approved by the Government which paved the way to taking it to the next stage: discussion and approval in the Knesset as a Government bill. Netanyahu said that he will personally propose his own draft and in late November he introduced some principles that his bill will include.

While the fall of the Netanyahu government and the coming elections means that this bill will not be passed or debated any time soon, it is very likely that some parties will add it to their political platform. Thus, it is very likely that it will resurface again after the elections.  

Does this Bill Change Anything? An Overview of the Major Components

All versions of this proposed Basic Law more or less deal with similar issues and use the same language. The main theme is highlighting the Jewish character of the state and the right to exclusive Jewish self-determination. The versions also include provisions dealing with official languages, the emblem and anthem, the public culture and national holidays, the importance of Jewish immigration and the status of Jewish law and heritage. While this bill clearly represents an overdose of nationalist fervour, legally, it does not change much.

The bill also includes a related geographical dimension declaring that the Land of Israel, or as it is called in Hebrew “Eretz Yesrael” (a nebulously defined area which for the minimalists includes the area of Palestine (pre-1948), and for the maximalists includes parts of Jordan, Syria, Lebanon and Egypt as well) “is the historic homeland of the Jewish people and the locus of the constitution of the State of Israel”. This statement is generally in line with the Zionist consensus which distinguishes between the “Land of Israel” and the territory of the state of Israel: while Jews according to the Zionist vision are entitled to self-determination in the whole area of “the Land of Israel”, liberal Zionist are willing to make territorial compromises (more or less along the 1967 line) for the sake of political stability and in order to maintain a Jewish majority.

Jewish state versus Jewish and Democratic State

The most recent draft states that Israel is the “national home of the Jewish People where it exercises its aspiration for self-determination according to its cultural and religious heritage”. The bill leaves no room for doubt adding that “the right to exercise national self-determination in Israel is exclusive for the Jewish people”. Put another way, twenty percent of citizens are excluded from self-determination in the state, and by extension cannot enjoy any national rights. This is exactly the situation as it stands today even without the bill.

Democracy and the principles of “liberty justice and peace in the spirit of the Jewish prophets”, and a commitment to “the personal rights of all citizens” are also included the bill. This separation between the Jewish character and the commitment to democracy is a departure from the definition of the state as “Jewish and democratic” in the Basic Laws. Some commentators saw this as subordination of democracy to Jewish character. However, the language and combinations used are not really a departure from the current situation. The Declaration of Establishment of State of Israel from May 1948 declared “the establishment of a Jewish state in Eretz Yisrael, to be known as the state of Israel”.  Similarly, Israel is constitutionally defined as “Jewish and democratic”. This characterization is not merely declarative: the Supreme Court sees it as a fundamental constitutional principle with significant impact on the internal ordering of the state. Since the creation of Israel, and more specifically since the 1960s, in all of the cases discussing this definition (or matters related to the character of the state), the Supreme Court has used the terms “state of the Jewish people” or “Jewish state” interchangeably and linked them to exclusive Jewish self-determination. The Court has been clear and consistent: Israel embodies the self-determination of Jews, even though they represent a settler society that immigrated and settled in Palestine in the twentieth century. The indigenous population (the Palestinians) on the other hand cannot exercise self-determination in the same territory, but some of them can be citizens with some rights.

But what does a “Jewish state” mean? The Court, under the leadership of then Chief Justice Aharon Barak, arguably one of the most influential and most liberal judges in the history of the Court, interpreted the “Jewish” definition to mean a combination of Zionist and traditional characteristics. In a case from 2003 Barak explained that at the center of the Jewish characteristics

stands the right of every Jew to make aliya [to immigrate as a Jew] to the State of Israel, that in Israel Jews will be a majority, Hebrew will be the main official language of the state, and its main holidays and symbols reflect the national emergence of the Jewish people, the heritage of Israel is a central component of the state’s religious and cultural heritage.[3]

All of these elements, which ostensibly the bill comes to protect, are already part of the deep-rooted constitutional principles of Israel.

The protection of the Jewish character is so strong that pursuant to section 7A of Basic Law: The Knesset, a political party could be banned from participating in the parliamentary elections if its program rejects these characteristics. This section has been used consistently against Arab parties and candidates, but the Supreme Court, for a variety of reasons, has usually stepped in to prevent the ban. The protection of these characters is further fortified by the Knesset’s Rules of Procedure which give the Knesset Presidium (the Speaker and his/her deputies) the power to ban discussion of “a bill that in its opinion denies the existence of the State of Israel as the state of the Jewish People, or is racist in its essence.” [Art. 75(e)]. This article has been used several times, most recently in 2011 to block a bill that made denial of the Nakba or the rights of the Palestinians to equality as grounds to losing state funding.[4]

Hebrew as the Official Language

Some critics argue that this bill changes the status of the Arabic language. Most versions of the bill provide that Hebrew is the official language, and that Arabic will have a special status but will not be an “official” language. Does this change the current situation?

According to Article 82 of the Palestine Order in Council of 1922 -a relic from the British Mandate era part of which is still valid law in Israel- Hebrew, Arabic and English are official languages. With the creation of Israel in 1948, English was omitted, leaving Hebrew and Arabic. Even though Arabic is an official language in Israel the Supreme Court determined in 2002 that in line with Israel’s Jewish definition, Hebrew should be the main language. Writing for the majority, Chief Justice Barak explained that Hebrew, as well as “its existence, its development, and its prosperity and amplification are a central value in the State of Israel.”[5] While the official characterization of Arabic gives it a “distinct and added value” over other languages, he saw adding Arabic to street signs in mixed cities as contingent on “the lack of infringement on the superior status of Hebrew”. The current bill will not change the inferior official status of Arabic, but it will change the source of this inferiority, with almost no practical change.

Jewish Law as a Source of Inspiration for Legislation

The section on Jewish law also attracted some interest. The section provides that “Jewish law shall be a source of inspiration for the legislature.” It also refers the courts to the “principles of liberty, justice, fairness and peace in the Jewish heritage” in cases where no other source of law provides an answer. This section is not new: it was lifted verbatim from the Foundations of Law Act-1980, and is the valid law in Israel today. The Supreme Court accepted Jewish law as one of the sources of inspiration of Israeli law and stated clearly that this is in line with Israel’s values as a Jewish. Even in this area, there is no real or significant change.

Primacy of Jewish Immigration

The idea of Jewish “return” (immigration to Israel for Jews and their non-Jewish family members) is another principle included in this bill. Also here there is nothing new. In fact, the current Law of Return -1950 was described by the Court as the most fundamental of all laws. Former Chief Justice Barak, explained that it is:

one of the most important laws in Israel, if not the most important. Although it is not a “basic law” in form, it is certainly a basic law in essence… it is the most fundamental of all laws, and it constitutes, in the words of David Ben-Gurion, the “foundation law of the State of Israel.” This is the key to entering the State of Israel, which constitutes a central reflection of the fact that Israel is not merely a democratic state, but also a Jewish state; it constitutes “the constitutional cornerstone of the character of the State of Israel as the state of the Jewish people”… it gives expression to the “justification… for the existence of the Jewish state”… it is an expression of the right of the Jewish people to self-determination.[6]

While the Court provides an elaborate justification for the centrality of the idea of “return”, “return” does not apply to the Palestinian refugees who were expelled in 1948 or 1967 even though they are entitled to return under international law. “Return” is limited to Jews only because it is part of the right to self-determination which is also limited to Jews only. In the same vein, Israel has enacted the Citizenship and Entry to Israel Law-2003, which bans family reunification between Palestinians living in Israel and Palestinians from the West Bank and Gaza Strip and their descendants even if they have never resided in the Territories. The Court found this prohibition to be constitutional.

Further emphasis on this relationship between immigration, self-determination and the Jewish people could be found in the World Zionist Organization and Jewish Agency Status Law -1952. Section 1 of the law provides that “the State of Israel sees itself as the creation of the entire Jewish people, and its gates are open according to its laws to every Jew who wants to immigrate to it.”

Symbols of the State

The emblem, anthem and flag of Israel are also included in this bill. They all represent symbols of the Zionist movement and the Jewish culture. Those are currently determined and protected by the State Flag, Emblem and Anthem Law-1949. An action or expression that is seen as dishonouring the anthem or the flag is, according to this law, a criminal offence punishable with up to one year of imprisonment.   

Similarly, the protection and the promotion of Jewish culture, heritage and national holidays are enshrined in a long list of legislation including the Independence Day Law-1949, Memorial Day for the Martyrs of the Battles of Israel Law–1963, the Public Education Law -1953, the Culture and Art Law- 2002, Broadcasting Authority Law-1965 and the Second Authority for Television and Radio Law-1990.

Conclusion 

Given how the “Jewish” character is entrenched, maintained and constantly regenerated within the constitutional order, and its impact on the Palestinians in Israel, it would be misleading to view the definition as a textual expression in basic laws, legislation or court decisions. Essentially, it is the embodiment and representation of an ideology that informs the mind-set, policies, and practices in the laws and institutions of the state. It is not surprising therefore that discrimination against Palestinians in Israel, can be identified in almost all aspects of life. The human rights organization Adalah lists more than 50 Israeli laws that discriminate against the Palestinian citizens of Israel. This discrimination permeates the social, economic and political spheres. In almost all conceivable areas including health, education, income, employment, budget allocation, social welfare, and development, the Palestinian citizens fare worse, and in some cases, much worse than the Jewish citizens. 

This proposed bill does not make any significant change. While some of its liberal Zionist critics argue that it will disrupt the delicate balance between the “Jewish” and “democratic” fundamental characteristics of the state, this approach is one that puts a rosy and distorting gloss on the current situation where the relationship between the two characteristics is neither balanced nor delicate. Most branches of the state will openly give preference to the Jewish element, and while the courts in most situations try to avoid dealing with the conflict between the two elements, in practice they consistently favor the Jewish element. Even when the courts produce outcomes that are seen as favourable for the Palestinian citizens in Israel, they emphasize that these outcomes are achieved because they do not affect the Jewish character of the state.[7]

Of course, if this bill materialises and becomes a Basic Law, it will be cited as justification for whatever discriminatory policy introduced or law passed. But there is no shortage of such justifications today that have equal weight except that they are dispersed across and within several sources. It seems that the crux of the discussion here is the following question: to what extent should the racist colonial policies be clear and visible for all to see?

Concerned with image and international standing, liberal Zionists are happy to keep the situation as it currently is – or even tolerate more discrimination against the Palestinians- as long as it is not the central emphasis. Those on the right, for whom considerations of image or reputation on the international level are signs of weakness, are more eager to have in-your-face expressions of Jewish superior status.

Ultimately, the result of this bill would be the unification of many principles that are already law in Israel under one Basic Law. The repetition and emphasis sound shocking for those unfamiliar with Israeli law, but the bill only clarifies what is already in place and its tone reflects the current situation. Instead of looking at individual trees one by one, the observer now sees the whole forest and its very dark shadow; instead of a mishmash of case law, statutes, and constitutional principles, one can now see the cornerstone of an apartheid regime. Perhaps this is what its liberal-Zionist critics fear most. Debating whether this bill is “good” or “harmful” is misleading, and belies an assumption that if it is not passed, the situation would be fine.