Israel’s Nation-state Law Isn’t ‘Declarative,’ It Does Real Damage

"Legislative declarations do not remain purely "declarative". They have consequences." Dr. Amir Fuchs explains.

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When the nation-state law was passed in August 2018, the debate surrounding it gave rise to a certain consensus between some of the law’s opponents and supporters. Both groups claimed that the law – the Basic Law on Israel as the Nation-State of the Jewish People – would have no practical meaning, that it was just “declarative,” essentially ornamental legislation.

Supporters said this to assuage opponents, arguing that the law would not actually harm the rights of minorities, particularly the Arab minority. Opponents said the same thing mainly to try to reassure themselves that “nothing really happened” and that liberal democracy in Israel had not been affected.

But promoters of the law – at least those who were truthful about it – openly stated without embarrassment that they aimed to change the Supreme Court’s rules that ban discrimination between Jewish and non-Jewish citizens, including on matters of local residency and housing.

The objective of the law’s promoters is in the legislation itself. Section 7 states: “The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.”

In the absence of a complementary section saying the state also views the development of non-Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation, it takes a lot of naivete and blindness not to see the legislature’s intention of harming the right to equality (which it read into the Basic Law on Human Dignity and Liberty).

Many people reassured themselves that the Supreme Court would interpret the law as not contradicting the right to equality. This was also the position presented by the attorney general’s representatives at Knesset committee discussions.

But this week a lawsuit in which Arab children sought damages from the city of Carmiel for travel expenses to an Arab school outside town was dismissed partly on the grounds that Carmiel has the character of a “Jewish city.” The court said the town’s desire to preserve its Jewish character may be an appropriate and dominant consideration, based on Section 7 of the nation-state law.

I expect that, as the attorney general’s representatives believed earlier, this argument will be reversed on administrative appeal or in a petition to the High Court of Justice. The court is likely to assert that the nation-state law did not change the rules regarding the right to equality, as derived from the Basic Law on Human Dignity and Liberty.

But by its nature, a legislative resolution affects the entire system. From a situation in which such judicial discrimination was inconceivable, things have been upended to the point where there is now a need for a remedy at the Supreme Court. It’s simply not possible to chase after and remedy every action by judges, registrars, lawyers and bureaucrats in the central and local governments that gives a Basic Law an interpretation that practically writes itself. (Remember the Afula local council’s declaration of intent “to preserve the city’s Jewish character.”)

The court’s interpretation will of course help blunt the law’s damage somewhat, but no more than that, and it certainly won’t invalidate it. After all, the main damage done by the law goes back to that initial argument – that it’s really only “declarative.”

This is the law that defines the country, and when this definition is flawed, incomplete and exclusionary, when it lacks what should be obvious – that along with Israel being a Jewish nation-state it’s also a state of all its citizens entitled to full equal rights – this has serious consequences.

Legislative declarations do not remain purely “declarative.” They have consequences. Their message seeps into society and is absorbed by individuals and corporations. There will be consequences for children who are discriminated against because they are Arab, and consequences in education and in the exclusionary message conveyed to everyone in the country not Jewish: You are not equal citizens.

The way to remedy the injustice is the nullification of the nation-state law, or an amendment to ensure full equal rights to all Israelis and the legitimate inclusion of all minorities in Israel. Another way is to advance two proposals that were raised this week in the Knesset: one that includes the right to equality within the Basic Law on Human Dignity and Liberty, and one that accepts the main points of the Declaration of Independence as a Basic Law. This could blunt, both practically and to a certain extent declaratively, the damage done by the nation-state law.

The article was published in Haaretz.