Is Israel Proud of Its Supreme Court?

In the days leading up to the passage of Israel’s new Nation-State Law, many of my Israeli Arab co-nationals were preparing to declare the end of Israeli democracy. Not I. Certainly, I found the exclusionary intent by some of the law’s proponents personally distasteful, but hoped and even trusted that the democratic debate that has kept this law on the drawing board and off the books for nearly a decade would succeed, at the very least, in filtering out serious threats to Israel’s democratic institutions and processes. But I was wrong.

This new law is part of an ongoing attack on the Supreme Court. With its last-minute omission of any reference to democracy, equality or the spirit of the Declaration of Independence, the Law allows the value of Jewish national self-determination to take precedence over that of civil and political equality, jeopardizing the checks and balances provided by Israel’s independent judiciary that have been crucial to sustaining principles of equal citizenship and minority rights in Israeli law.

On August 14th, Minister of Education Naftali Bennett offered in this paper that the Nation-State Law is a re-balancing of the Jewish character of the state following “decades of successive rulings by Israel’s judiciary that have ignored the aspirations of those who seek to preserve the Jewish nature of our state.” He goes on to cite the 1992 Basic Law: Human Dignity and Liberty on which several rulings, arguably irritating to Israel’s right-wing, have been based. The truth is that Minister Bennett is misleading readers.

As an Arab citizen of Israel, a legal scholar, and student of the country’s Supreme Court, I have long taken pride in the High Court’s role affirming and building precedent around Israel’s dual Jewish and democratic commitments. In the ever-present tension between these potentially contradictory and competing national characteristics, the High Court has rightly emerged as an arbiter of justice, allowing laws forged in the cauldron of politics to be leveled in the coolness of their chambers.

Yes, Minister Bennett is correct that Basic Law: Human Liberty and Dignity is the basis on which the Court recognizes the vital principle of equal civil and political rights in Israeli law. But no, this has not reduced the standing of Israel’s Jewish character in the Court’s rulings. Since Chief Justice Aharon Barak set forth in 1995 that Human Liberty and Dignity encompasses the value of equal citizenship, the Court has continued to rule on specific petitions and legal conflicts with even-handed references to Israel’s Jewish and democratic commitments.

Minister Bennett cites rulings on immigration and extension of Israeli citizenship to Palestinians as some of the Court’s excesses. I submit the following examples: In 2003 the Court rejected Adalah’s petition (an NGO that advocates the rights of the Arab minority) against the constitutionality of barring Palestinian spouses of Arab citizens from Israeli citizenship. Second, the Court has rejected numerous petitions against the constitutionality of the Prevention of Infiltration Law, pushing only for amendments to meet Israel’s commitments under international law. Third, the Court rejected several petitions against the constitutionality of the separation fence, holding that Israel has the full legitimacy to defend itself. Fourth, the Court rejected a petition that seeks to invalidate Israel’s Law of Return for being discriminatory, holding that the Law grants every Jew in the world a golden key to enter Israel, but within Israel, every citizen should be treated equally. Fifth, the Court has consistently rejected petitions seeking to recognize Israel’s Arab minority as indigenous people, holding that this is a political matter to be determined by the parliament (Knesset).

Perhaps most disingenuous is Minister Bennett claim that the Nation-State Law, and its affirmation of the centrality of the Jewish identity of the state, “now sits proudly alongside Israel’s other Basic Laws (which carry quasi-constitutional power) that reinforce the freedom of expression and equality for all citizens of Israel.” As of 2018, there is no such language about equality or protection of such freedoms in any of Israel’s Basic Laws. Such protections have only been interpreted by the Court—a constitutional revolution that Bennet and his ilk have been trying to reverse.

But, contrary to what Minister Bennett implies, there are three separate Basic Laws pre-existing the Nation-State Bill which are explicit about Israel’s character as a Jewish—and democratic—state. The 1992 Basic Law: Human Dignity and Liberty states in its first article that Israel is a Jewish and democratic state and was the cornerstone of a Court ruling that the values of Jewish Law do not contradict the values of a democratic state. The 1994 Basic Law: Freedom of Occupation enshrines in its first two articles the spirit of the Declaration of Independence and the values of the state of Israel as Jewish and democratic. Earlier still, the 1958 Basic Law: The Knesset, amended, requires all Israel’s parliamentary candidates to recognize Israel as a Jewish and democratic state.

In other venues, Minister Bennett has been less opaque about his desire to rein in the Court. He is behind the proposed “override clause”—an amendment to the Basic Law: Human Dignity and Liberty that would allow the Knesset to overturn Supreme Court rulings by a simple majority.

On the basis of the newly minted Nation-State Law, the Court may now find it legal to truncate individual equal rights if it serves the value of Jewish national self-determination. It opens the door for separate laws for Arab and Israeli citizens, unequal uses of state funds and resources on the basis of nationality, and other limitations on minority rights.

This is far from the case today. Inequalities that exist between Arab and Jewish citizens are largely by deed and not by decree, and in recent years there have been steadfast efforts to overcome these challenges and close socio-economic gaps. But this Law threatens to reverse this trend. Whereas equal citizenship should be the litmus test of the balance between Israel’s commitments to Jewish and democratic values, this Law opens the way for that standard to erode.

In his op-ed Minister Bennett calls the idea ‘preposterous’ that the Nation-State Law is a threat to the Jewish people. The need for a Jewish state in the world is understandable. Using its Jewishness to weaken its democracy is a tragedy. There are enough forces interested in purifying the state towards one side of its character or the other. Arab and Jewish leaders must now work together to ensure the health of democracy is a benefit to all.

Professor Mohammed Wattad, is Dean of the Law School at Zefat Academic College. He clerked for Israel’s Supreme Court.

About the Author
Professor Mohammed Wattad is Associate Professor of Law and Dean of the Law School at Zefat Academic College. He clerked for Israel’s Supreme Court. Expert in Constitutional Law, Criminal Law, and International Criminal Lawץ
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