Legislating the Right to Equality is a Must

Israel is the only democracy whose constitution or basic laws omit all mention of the right to equality –leaving a gaping hole that must be filled.

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The release of the name of the late Lt.-Col. Mahmoud Hir a-Din, a Druze officer, has triggered a stormy debate as to the need to guarantee the right to equality in legislation so as to ensure this basic right for all minorities in Israel.

Israel is evidently the only country in the democratic world whose constitution or basic laws omit all mention of the right to equality – that is, all citizens are equal – despite the fact that this is such a fundamental principle. The fact that such a right is not anchored in legislation – leaves us with a gaping hole in our democracy.

Even though, according to Israel’s Declaration of Independence, the country “will ensure complete equality of social and political rights to all its inhabitants,” this document does not have the status of a Basic Law. It has indeed inspired interpretation by the Supreme Court, which over the years established a “judicial bill of rights” that includes the right to equality, and which later decided that certain aspects of the right to equality are included in the dignity stipulated by the Basic Law: Human Dignity and Liberty.

None of this offsets the lack of an explicit reference to this right. Why is it still necessary to do so?

First, while the court’s interpretation is important, it is subject to change and is dependent on the identity of its justices. Also, the status of an interpretation means that it is subject to criticism and even to delegitimization, as the product of “judicial activism.” A fundamental right such as the right to equality must be inscribed explicitly in a Basic Law enacted by the Knesset, and not in a court decision.

Second, the Nation-State Law sharpened the understanding of the profound implications of the absence of the right to equality. The Basic Law: Israel, the Nation-State of the Jewish People (its official name) includes the stipulation, which should have been obvious, that Israel is the nation-state of the Jewish people. But at the same time, it also ignores the presence of minorities in the country, whereas other nation-states have made sure to recognize the equal citizenship of minorities in the preambles to their parallel statutes.

Beyond that, the law fails to specify that Israel is also the country of its non-Jewish citizens, that the country is a democracy with equal rights for its citizens and that it does not refer to the Declaration of Independence, which underlies the law. So, the message it conveys is quite blatant, in effect – it lets non-Jewish Israelis citizens know that they are excluded and do not have the same status as the country’s Jewish citizens.

Here too, the Supreme Court’s ruling that rejected a challenge to the constitutionality of the Nation-State Law tempered the problem from a legal perspective. The Court ruled that the Nation-State Law does not conflict with the Basic Law: Human Dignity and Liberty, and consequently does not contradict every person’s right to equality.

Why, then, must we anchor the right to equality in a Basic Law?

Even if we assume that the Nation-State Law does not harm or mistreat minorities from a legal perspective, a constitution has both a declarative and educational significance: it is not just a list of statutory rights. It is a seminal document, the country’s common denominator – its credo if you will. We want to educate our citizens by the light of this document, so that every citizen can identify with it. This is why when the Basic Laws leave out minorities and the failure to mention the right to equality cries out to heaven. Judicial interpretations, however important, are not hung on classroom walls.

This void can be repaired in several ways: By amending the Nation-State Law; by enacting a Basic Law: Equality, or by amending the Basic Law: Human Dignity and Liberty, to include equality among the rights embodied in them. As a complementary step, the Declaration of Independence could be adopted as a Basic Law: Preamble to the Constitution.

Leaving the situation as it currently stands is a very bad alternative. It would leave Israel as the only democracy in the world that has not officially guaranteed all its citizens the right to equality.

The article was published in the Jerusalem Post.