In an article in the Hebrew weekly Makor Rishon, Prof. Mordechai Kremnitzer and Attorney Amir Fuchs argue against the current initiative to pass Basic Law: Israel as the Nation State of the Jewish People, which they see as divisive and problematic.
"I do not believe that the constitution of any state should contain special clauses explicitly guaranteeing its "national" character. I believe it is a good sign if a constitution contains few such clauses. The natural and best way is for the "national" character of a state to be ensured by the very fact that it has a particular majority."
— Ze'ev Jabotinsky
This just in! Israel is the nation state of the Jewish people. That is how it has always been and that is how it will always be. Anyone who takes a look at our legal system, whether a superficial glance or an in-depth study, can reach only one conclusion: Israel is a democratic Jewish nation state. This is expressed in the phrase "Jewish and democratic" that appears in Israel's Basic Laws, but in other ways as well. It is also reflected in the Declaration of Independence, the Law of Return, legislation that pertains to the flag, anthem and symbols, holidays and memorial days, and more. The Supreme Court ruled using this definition in the Yardor case, in which it saw the Jewishness of the state as a fixed constitutional norm. The status of the state as the nation state of the Jewish people is also reflected in judicial rulings about the special status of the Hebrew language.
The argument that the state's Jewish-national character needs to be anchored in a new Basic Law, either as a matter of foreign relations or to counter the contrary (and marginal) view in Israeli public discourse, is groundless. Friendly states already accept Israel's national character. Those who are hostile will not be influenced in the slightest by our legislation. The same holds true for domestic opponents of the state's Jewish character. Taking this step, however, is not just superfluous; it is, in fact, damaging to the country, an expression of deep insecurity. Those who hear about it are bound to wonder: Does Abu Mazen's refusal to recognize Israel as a Jewish state deprive Israel of its national character? Does he have that much power? What did all of those people who took part in the realization of the Zionist dream—the state's founders and builders, those who fought for it and died for it, those who supported and nurtured it during 66 years of independence— accomplish if the establishment of the Jewish state was deferred until now? Instead of welcoming the Jewish public's broad identification with the state's Jewish-national character, the proposed legislation would set off a justified dispute. The proposal, rather than bolstering the nation's unity, is divisive and controversial. Israel's enemies will interpret this debate as an expression of disagreement among the Jewish public about the state's Jewish character. The attempt to strengthen the Jewish state will end up weakening it.
The character of the state and its various manifestations should be anchored in a Constitution that balances its national aspect with its democratic essence and includes a Bill of Rights. The proposal to enact Basic Law: Israel as the Nation State of the Jewish People, which Prime Minister Netanyahu endorsed on the eve of Independence Day, is a wholly different initiative. To the extent that can be inferred from the various texts proposed in recent years (all of which are more or less the same) and from statements made by its proponents, it would introduce a radical change in the existing balance between "Jewish" and "democratic" and makes the democratic element subservient to the Jewish element. Let us not be naïve. This proposal is not intended to reflect the status quo but to alter it in a fundamental way—to puff up the state's Jewish-national character and diminish and curtail its democratic character. The proposal would reduce Israeli democracy to a "democratic regime" and thus sap its essence as a way of life, as a culture, and as a moral system based on equality among all residents with regard to their rights to life, liberty, and human dignity. We must not forget that the existing constitutional basis for the protection of individual and collective rights is weak and flimsy. Some basic rights are not explicitly mentioned, including equality, freedom of expression, freedom of religion, and social rights. The rights stipulated in the Basic Law: Human Dignity and Liberty can be modified or revoked by a simple Knesset majority. In this situation, reinforcement of Israel's national character would lead to unbridled nationalistic and discriminatory legislation.
The proposal demeans and dismisses minorities, especially Israel's Arab minority, which is not mentioned at all. Contrary to the explicit promise in Israel's Declaration of Independence, the proposal does not promise full and equal rights to the minorities in Israel, as individuals and as a collective. Quite the contrary. The bill would chip away at the constitutional rights of minorities—the rights inherent in the state's democratic nature, the commitment to equality that derives from this, and the courts' interpretation of Basic Law: Human Dignity and Liberty. The proposed legislation undermines the very foundations of Zionism and the vision of its founders, who wanted to establish a state that is not only Jewish but is also an exemplary democratic society that accords equal treatment to all the other nations that live within it. Such a law would produce harsh friction between the Jewish and Arab citizens of Israel, deepen the gulf between Jews and Arabs, and make it harder for Arab citizens to identify with the state and feel that it is their home. It would do severe damage to the state's international image and foreign relations. Paradoxically, it would strengthen Abu Mazen, who could use the proposal to justify his opposition to the Jewish state as unequal and discriminatory.
We must admit, though, that the bill has one "positive" aspect. Unlike most previous anti-democratic legislation, this proposal abandons all subtlety and camouflage. The discrimination, the exclusion, and the domination of non-Jews are there for all to see. We hope that our elected representatives will scuttle this woeful initiative. Instead of this legislation, they should enshrine the Declaration of Independence as the preamble to the Constitution that Israel so badly needs, which will include a full Bill of Rights.
Related Legal Opinion
On June 4, 2014, Prof. Mordechai Kremnitzer and Attorney Amir Fuchs submitted a legal opinion on Basic Law: Israel as the Nation State of the Jewish People to the Ministerial Committee for Legislation. The full text of the legal opinion can be read here (English).
This article was published in Hebrew in Makor Rishon on May 9, 2014.