Basic Law: Nation State? Only a Constitution Can Guarantee Israel's National Character

In an op-ed in Maariv, Prof. Mordechai Kremnitzer and Attorney Amir Fuchs argue that the only way to guarantee Israel's existence as a Jewish and democratic state is not through a Basic Law defining Israel as the nation state of the Jewish people but through a Constitution.

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The proposed Basic Law: Israel as the Nation State of the Jewish People, which the Ministerial Committee for Legislation assigned to a special committee headed by Justice Minister Tzipi Livni for further refinement yesterday, is a danger and threat to Israel's continued existence as a Jewish and democratic state. The proposed legislation would be a mortal blow to the democratic character of the State of Israel, as it favors Israel's Jewish character over its democratic character. The law could also allow institutionalized discrimination against minorities and undermine the already tenuous status of human rights in Israel.

It is clear from both the legislation itself and from statements made by its initiators and supporters that this Basic Law is intended to serve as a "counter-balance" to the existing constitutional status, in which Israel is not "Jewish" enough and is too liberal and democratic. No matter how you look at it or spin it, this is the purpose of the law and this is the message it contains. Anyone who does not share this concern of the proponents must oppose the bill.

Anyone who, like us, supports the continued existence of Israel as a Jewish and democratic state—that is, as a Jewish nation state committed to equal rights for all citizens, as required by Israel's Declaration of Independence—should be concerned by the proposed legislation. Adopting this kind of Basic Law will send a message that the term "Jewish state" is a code word for discrimination against Arabs—a message that has already been detected by some of Israel's Arab citizens. It will give detractors of Israel throughout the world excellent ammunition for their arguments that Israel is not a democracy but rather a racist, apartheid state.

The proposed legislation also includes phrases that would strengthen the influence of Jewish law on Israeli law. The law would give religion even more influence on the State of Israel than religion already has, by entrenching religion, for the first time, in a Basic Law. Is this the good news that the current coalition in Israel intends to give the Israeli people? It should also be noted that this is being done in complete contradiction to the name of the law, which ostensibly deals with Israel as the "nation state" of the Jewish people, while in actuality, the law also pertains to the Jewish religion.

How, then, should Israel's identity as a Jewish and democratic state be secured? As in other nation states, the appropriate place for anchoring this kind of definition is in the preamble to a Constitution. Only through a Constitution that guarantees a complete Bill of Rights—which would include the right to equality and the right to freedom of expression, two rights that are not included explicitly in Israel's Basic Laws—will it be possible to firmly establish Israel's identity as the nation state of the Jewish people.

The Constitution is also where all issues related to the Law of Return, the national anthem, the flag, the days of rest, national memorial days, and all the other trappings of Israel as a nation state, should be entrenched. Adopting a constitution is a difficult and arduous task, but it is imperative that the Knesset take on this undertaking, which is, in fact, part of its mandate as Israel's Constituent Assembly.

The Declaration of Independence could also be enshrined in a Basic Law that would serve as a preamble to the Constitution. This founding document also clearly demonstrates the balance between the national character of the State of Israel and its identity as a democratic state that guarantees equal rights to all citizens. As it says: 

Prof. Mordechai Kremnitzer is Vice President of Research of IDI and Professor Emeritus at the Hebrew University of Jerusalem Faculty of Law. Attorney Amir Fuchs is a researcher at the Institute.

This article was originally published in Hebrew in the Maariv newspaper on June 9, 2014.