Challenge to Controversial Nation-State Law Reaches Israel’s Supreme Court
Full day of hearings brings religious, ethnic tensions back to the surface
Israel’s Supreme Court convened on Tuesday for a special session to discuss a petition by rights groups and Arab Israeli citizens who are demanding to strike down the controversial law which officially defines Israel as the nation-state of the Jewish people.
The petitioners requested the high court declare as unconstitutional several specific articles in the bill, including those pertaining to Israel’s official language and land allocation, which they claim discriminate against non-Jewish citizens.
“I want the court to change the articles that injure the Druze community and all minorities in Israel,” Akram Hasson, a former member of the Knesset, Israel’s parliament, who is the main petitioner in the lawsuit, told The Media Line.
Over 1.5% of Israel’s population are Arab Druze, an ethnic and religious group that evolved from Islam, and that has become an integral part of the country.
“We have no other country or alternative land, we’ve lived here since before the state was established, we have a blood and life bond with the Jewish people,” Hasson said. “We serve in the army and dedicate our lives to protect Israel. This law categorizes me as a second-rate citizen, despite me being loyal and loving of Israel, and respectful of its values and symbols.”
In July 2018, the Basic Law: Israel – The Nation-State of the Jewish People was passed in parliament, after years of political back and forth. The bill states that Israel is the Jewish people’s nation-state, and legally anchors the country’s symbols, flag, national anthem and language as official and binding.
While most of the law’s content was already legislated elsewhere in past years, the law awards a special status to the state’s Jewish identity.
Among its more controversial articles, the nation-state law decrees that Hebrew is the only official language in Israel, with Arabic receiving an inferior, yet “special,” designation. The bill also declares that the government shall “work to encourage and promote” the establishment of Jewish towns and cities, the development of which it sees as a “national goal.”
“I know this is the state of the Jewish people, and I want it to remain that way,” Hasson said. “But this is unnecessary. This law discriminates against hundreds of thousands of Christians, Muslims, anyone who isn’t Jewish.”
He added: “We educate our youth to serve this country. It’s a privilege, we are all brothers. We just ask the justices to right this wrong and to allow us to live here with democracy and equality and love.”
We have no other country or alternative land, we’ve lived here since before the state was established, we have a blood and life bond with the Jewish people. We serve in the army and dedicate our lives to protect Israel. This law categorizes me as a second-rate citizen, despite me being loyal and loving of Israel, and respectful of its values and symbols.
Just last month, a judge in the Magistrates Court of Israel’s northern district threw out a lawsuit filed on behalf of two Arab children, demanding that they be reimbursed by their hometown municipality for the bus rides they were forced to take to their school in the neighboring Arab town. The judge explained he had based his decision on the nation-state law, among other things, noting that the Jewish-majority city was within its rights to not build Arabic-language schools in its jurisdiction, as that would run opposed to its Jewish character.
Throughout Tuesday’s court session, the expanded panel of 11 justices expressed mild displeasure with the law, but seemed to challenge the petitioners’ claims that it constituted a violation of Israel’s other basic laws, such as human dignity and liberty, and required the court’s intervention.
“The bill may not have been worded exactly as some of us would have liked,” Justice Uzi Fogelman said.
Supreme Court Chief Justice Esther Hayut said that while the law “may not contain language some of us had hoped for,” and that “it would have been preferable if the term ‘equality’ would have found its way into it,” striking down a basic law passed by parliament was an “unprecedented and extreme measure.”
In lieu of a formal constitution, Israel’s parliament has over the years passed a series of ‘basic laws’ which serve as the nation’s bill of rights, enjoy constitutional status and supremacy over regular legislation, and have never been overturned or invalidated by the courts.
Legal experts are nearly unanimous in their assumptions that the justices will not intervene in the Knesset’s bill, as such a cancellation would be a drastic step.
“When the Supreme Court conducts judicial review of statutes, it asks whether they are constitutional in relation to basic laws. But here we’re talking about a basic law itself clashing with other basic laws,” Prof. Aeyal Gross, a constitutional law expert from Tel Aviv University, told The Media Line.
“A constitutional amendment can itself go against basic chapters or principles of the constitution, and the court can theoretically strike it down, but that would require a very high level of violation that really undermines the basic notion of democracy,” he said.
“We have to remember these basic laws are passed by the same body that passes regular bills,” Gross said. “They require no supermajority, no referendum, yet they enjoy supremacy. That allows the Knesset to bypass judicial review by simply labeling it a basic law.”
The bill may not have been worded exactly as some of us would have liked
According to Gross, who is a former member of the board of the Association for Civil Rights in Israel, the ruling in Tuesday’s case, expected to be handed down in several weeks, could go in one of three ways.
“The court could reject the petition, but in that case, it wouldn’t decide in principle on the idea of whether it can strike down basic laws. They’ll say that this particular instance doesn’t call for such measures because it doesn’t undermine democracy,” he said.
“Or, the justices may strike down certain parts or articles or even specific clauses in certain articles, and request the Knesset to amend them. That’s not likely, but possible,” he also said.
The third and most likely option is that the justices will defer. “They’ll say it’s a new law and that they haven’t seen it implemented enough. ‘Come back to us if a judge interprets it in a discriminatory way,’ they’ll say,” Gross said.
We are law-abiding and will respect whatever the court decides. But if the government continues to ignore us, makes us feel like second-class citizens, who knows what the future holds.
Hours before the trial began on Tuesday, Knesset Chairman Yariv Levin, a member of the right-wing Likud party, sent an urgent letter to the chief justice, admonishing her for even hearing the case and threatening not to accept any ruling which would contradict the parliament’s decrees.
“Any decision to intervene in basic laws legislated by the Knesset would amount to an unauthorized act, and would lack any legal standing,” Levin said.
Prime Minister Binyamin Netanyahu joined the fray as well, saying the court had no right to discuss the matter and promising to deal with the judicial system in his next term.
A scenario in which Israel’s parliament refuses to accept or adhere to the Supreme Court’s ruling would plunge Israel into a constitutional crisis.
Hasson, who was met with right-wing protesters on the court steps as he arrived for the hearing Tuesday, implored the Israeli people to avoid further dividing the nation.
“We want justice. It’s our right, as citizens of a democratic superpower, with rule of law and norms and institutions that distinguish it from other countries in the Middle East. What is there to protest? It’s shameful,” he said.
As for the future of the special Jewish-Druze partnership, Hasson wasn’t optimistic.
“We are law-abiding and will respect whatever the court decides,” he insisted. “But if the government continues to ignore us, makes us feel like second-class citizens, who knows what the future holds.”