Basic Law: Israel as the Nationalist State of the Jewish People

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In an op-ed originally published in Maariv, IDI's Prof. Mordechai Kremnitzer and Attorney Amir Fuchs warn that the proposed Basic Law: Israel as the Nation State of the Jewish People would seriously undercut the balance between the "Jewish" and "democratic" nature of the State of Israel.

I do not believe that the constitution of any state should include special clauses that explicitly guarantee its "national" character. Rather, I believe that it would be better for the constitution to contain a minimum of such clauses. The most natural and best way is for the "national" character of the state to be guaranteed by the fact that it has a certain majority group. "

— Ze'ev Jabotinsky 

According to recent reports, the coalition agreement between the Likud and Habayit Hayehudi provides that the current Knesset will work toward the enactment of a Basic Law: Israel as the Nation State of the Jewish People. Although the exact content of the proposed law has not been made public, we may assume that it will be based to a large extent on proposals put forward in the past by former MK Avi Dichter.

We would like to emphasize that Israel was established as a Jewish state—that is, as the nation state of the Jewish people. This is a fundamental pillar of the State of Israel, its Basic Laws, and its judicial system. From our perspective, this principle is a given and goes without saying, and it is accompanied by a second fundamental pillar: the democratic character of the state. That which is obvious does not become any stronger with repetition. The problem is that the proposed law—which according to its stated purpose is intended to safeguard the character of the State of Israel—would actually undermine it.

The proposed bill, even in the "softened" form brought up for consideration during the term of the previous government, seriously undercuts the balance between the Jewish nature and the democratic nature of the State of Israel. The bill mentions the democratic nature of Israel only in the section that presents its goal. That reference to Israel as a democracy has absolutely no content or detail; it is not sufficient to counterbalance all the other articles of the bill, which assign primacy to the Jewish character of the state over its democratic character. As long as this process does not include constitutional entrenchment of a Bill of Rights, nationalist particularism is being given greater weight that is not appropriately balanced by universal elements and civic principles. Similarly, the bill has no entrenchment of the role of the courts and their function as the defender of human rights.

The bill, in its most recent formulation, also undermines the existing constitutional order in Israel, because it stipulates that all previous legislation is to be interpreted in accordance with the new law. In other words, even the existing Basic Laws, which include the Basic Law: Human Dignity and Liberty, would be interpreted in accordance with the new law's definition of Israel as the nation state of the Jewish people. This would deprive the minority of the last defense at its disposal in situations when the majority infringes its rights: an appeal to the High Court of Justice.

Among other things, the bill shamefully discriminates against Israel's Arab minority. It allows and even encourages Jewish urban settlement in an inequitable fashion, assigns priority to strengthening Jewish heritage, and would anchor residential segregation in a Basic Law. It would make it lawful to establish separate residential communities on the basis of religion or nationality. In this context, it seems that the cat is finally out of the bag; the ethnic segregation that appears to have been the true goal of the Acceptance Committees Law is revealed in all its ugliness.

Today, when the public is outraged by violent racist attacks on Israeli Arabs and the coalition agreements include an "uncompromising fight against racism," the kind of message that this bill is sending from the Knesset—at the constitutional level, no less—is a total contradiction. If the Knesset passes this unfortunate bill, it will be disseminating a message of exclusion and institutionalized discrimination, in which Arabs are not equal citizens of the state. Even long years of education and extensive public information campaigns will not be able to correct this message. 

Prof. Mordechai Kremnitzer is Vice-President of Research at the Israel Democracy Institute.

Attorney Amir Fuchs is a researcher at the Israel Democracy Institute.

This op-ed was originally published in Hebrew in Maariv on March 19, 2013.