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Equality now!

Israel may be the only democracy in the world that has not enshrined in law a basic right that protects the minorities living within its borders
Lt. Col. Mahmoud Khir al-Din (right) and his wife Nahed, in an undated photograph published by the military on May 15, 2022. (Israel Defense Forces)
Lt. Col. Mahmoud Khir al-Din (right) and his wife Nahed, in an undated photograph published by the military on May 15, 2022. (Israel Defense Forces)

The release of the name of the Druze officer Lt. Col. Mahmoud Kheir a-Din, who was killed in Gaza and received a posthumous commendation for valor, has returned the Basic Law: The Nation-State to the country’s agenda. Why? Because Lt. Col. Kheir a-Din, and many others like him, do not exist for this basic law, which defines the character, values, and identity of the State of Israel. They are invisible.

The basic law in question, enacted in 2018, stipulates that the country is the nation-state of the Jewish people, in which they realize their right to self-determination. The same idea appears in the Declaration of Independence, and in fact, Israel has conducted itself along these lines ever since its birth. Israel is indeed Jewish in many senses, primarily in the sense that it is the nation-state of the Jewish people and only Jews can make aliyah (i.e., immigrate to Israel and acquire citizenship automatically).

But Israel is not just a Jewish state. It is a Jewish and democratic state – and this must be declared loud and clear. Despite its name, the basic law in question deals with more than the nation. It defines the essence of the state – its fundamental values, its “identity card,” and its character. But, by omitting all mention of the country’s democratic character, its text calls the catchphrase “Jewish and democratic” into question. It is precisely the general wording of the other basic laws dealing with human rights – which include the statement that Israel is a Jewish and democratic state – that established a delicate balance between both principles.

The Nation-State Basic Law has been a topic of public debate ever since it was enacted, but not because of what it says. Most of its provisions are important and worthy of inclusion in Israel’s “constitution.” But it is controversial because of what it does not say. Its text excludes the minorities for whom Israel is home, makes no mention of equality, ignores democracy, and does not even refer to the country’s constituent document, the Declaration of Independence.

The problem with the basic law, then, is these lacunae, and especially the principle –missing – that all citizens are equal. This is why, in recent years, we have been hearing much about the need to specify the commitment to equality, which does not appear in the basic laws — even though it is deemed a fundamental human right. Israel seems to be the only democracy in the world whose constitution or basic laws are silent about the right to equality. This is unparalleled elsewhere in the democratic world.

Precisely because the country defines itself as Jewish in a specific basic law, it must recognize the minorities that live here and commit itself to the principle of civic equality. In any case, equality is not absolute. According to the Declaration of Independence, “The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants… it will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex…” The balance found in this text, between Israel as a Jewish state and recognition of the equal rights of all its inhabitants, is missing from the Nation-State Basic Law.

There are several ways to include the principle of equality in the basic laws. The right to equality could be added to the Basic Law: Human Dignity and Liberty; the Nation-State law itself could be amended. It would even be possible to enact a separate basic law just for the right to equality. Every option has its advantages and disadvantages, but each one of them is preferable to leaving the current situation as is. We must remember that the words of basic laws have meaning. We must remember that a generation has grown up here for whom “equality” is a foreign word. It just isn’t part of their “language.” We should aspire to educate Israeli citizens in the light of a shared document that expresses the county’s credo and that every citizen can identify with. The Nation-State Basic Law is the basis for such a document, and so its blindness to minorities must be corrected.

When a version of the nation-state bill was submitted to the Knesset in 2013, it included this text:

“The goal of this law is to define the identity of the State of Israel as the nation-state of the Jewish people, in order to enshrine in a Basic Law these values, in the spirit of the principles of the Declaration of Independence,” namely, that “the State of Israel will have a democratic regime” and that “Israel will be… committed to the individual rights of all its citizens, as stipulated in all the basic laws.”

These words were deleted from the bill before the basic law was passed in 2018. What happened? Did Israel change its character, values, and identity in the ensuing five years? Today, too, we still agree with every word quoted above.

About the Author
Professor Suzie Navot is a professor of constitutional law and the vice president of the Israel Democracy Institute.
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