There has been some controversy around the newly passed Basic Law: Israel as the Nation-State of the Jewish People that was passed into Israeli law on 19 July, 2018, by 62-55, with two abstentions.
Critics have dismissed the Basic Law with a plethora of polemics and some (including the Palestinian leadership, an Arab member of Israeli parliament, and New Zealand blogger Martyn Bradbury) have gone as far as to suggest it amounts to “apartheid”. That is not the case but there may be some aspects to be concerned about. Whatever one thinks of the newly passed law, as Professor of Law at Northwestern University, Eugene Kontorovich, wrote in The Wall Street Journal:
In reality, Israel’s Basic Law would not be out of place among the liberal democratic constitutions of Europe.Eugene Kontorovich
What is a ‘Basic Law’?
Israel, New Zealand, and the United Kingdom are the only countries in the world without a written constitution. The Basic Laws of Israel are essentially the constitution of the country and most are based on the individual liberties outlined in the Israeli Declaration of Independence.
The Basic Laws are not necessarily superior to any ordinary law and contradictions are decided by the Israeli High Court of Justice. The Basic Laws are meant to guide the legal system in the absence of a constitution and are more difficult to repeal than regular laws.
Why did this Basic Law come into being?
There are two primary reasons for majority support for the law – to strengthen the political influence of ultra-Orthodox Jewish parties and to send a political message to those who seek to destroy Israel as a Jewish state.
Due to the MMP system of government, much like New Zealand, the large number of parties, and the low threshold of 2% to earn a seat, coalition-making is a complex business and compromises must be made. This gives disproportionate power to the smaller parties and the ultra-Orthodox politicians invariably use this to pressure the government to pass laws they favour, such as this.
“We are enshrining this important bill into a law today to prevent even the slightest thought, let alone attempt, to transform Israel to a country of all its citizens.When I listened attentively to the Joint List [Arab] MKs, it was impossible to miss their clear words: ‘We, the Arabs will win, we are in our homeland, we were here before you and we’ll be here after you.’ This Basic Law is the clear-cut answer to those who think that and it is clear: You were not here before us and you will not be here after us,”Avi Dichter
And Eugene Kontorovich underscored attacks on the sovereignty of Israel from other nations, including the United Nations as part of the reason for its creation, writing
“Perhaps the best evidence that Israel needs a constitutional affirmation of its status as the sovereign Jewish nation-state is the eagerness of so many to denounce as undemocratic measures that are considered mundane anywhere else.”Eugene Kontorovich
What should not be controversial?
Most of the Basic Law should not be controversial. Despite some hysteria, there is clear evidence that Israel is the indigenous home of the Jewish people (part of clause 1 and all of 6). The symbols of Israel (clause 2) being the flag, emblem, and national anthem are unlikely to change. As is official calendar, memorial days, and Shabbat (clauses 8-10). The respect in this Basic Law for the rights of non-Jews in Israel, such as having the “right to maintain days of rest on their Sabbaths and festivals” is in keeping with the equality of rights for all Israeli citizens.
What has caused controversy?
There are three parts of the Basic Law that have generated the most controversy:
Section 1C: self-determination
This section is probably the most controversial as it states “The right to exercise national self-determination in the State of Israel is unique to the Jewish people”. There is concern that the interpretation of this section could lead to unfair treatment of non-Jewish citizens in Israel. The UK Jewish Board of Deputies said it would register concerns “that some of the measures in this law are regressive steps” with the Israeli Ambassador.
However, it is not clear what the medium- and long-term sequelae of the clause will be or how it might affect judicial decisions, if at all. It is unlikely to substantially change the decisions of Israeli Judges – and a recent study found that the Israeli Supreme Court preferentially treated leftist groups acting on behalf of Arabs.
Section 3: Jerusalem
This section states “Jerusalem, complete and united, is the capital of Israel”. Jerusalem is one of the five “final status issues” with regard to negotiating peace between the Arab Palestinians and Israelis. Tensions around this were intensified when the United States made the decision to move their embassy to West Jerusalem in December, 2017. That decision still left open the possibility for Jerusalem as a future Palestinian joint capital, and it did not exclude the possibility of other forms of its future internationalisation.
However, the wording of the Basic Law means, to some, that Israel has unilaterally taken control of all of Jerusalem – including the Old City and East Jerusalem, which were won in the 1967 war. This could hamper negotiations, should the Palestinian leaders decide they want to negotiate rather than perpetuate conflict.
Section 4: language
The official languages of Israel were taken from British rule over the territory between 1922 and 1948. At the time, English, Hebrew and Arabic were all official languages of the Palestine Mandate and remained so since. However, some people see a threat to the status of Arabic as Section 4 states “The Arabic language has a special status in the state; Regulating the use of Arabic in state institutions or by them will be set in law.” This could be considered as a ‘demotion’ of the language.
However, the reason there is confusion is that section 4 also states “This clause does not harm the status given to the Arabic language before this law came into effect.”
It is hard to reconcile these clauses but Arabic will undisputedly continue to be on official signage and an integral part of the nation, especially given that 21% of the population are Arab and a 2015 study found that 17% of Israeli Jews can understand Arabic.
What else caused controversy?
While thousands of Israelis took to the streets to protest the entire draft bill, there were some clauses that appeared in drafts of the Basic Law and caused even more controversy than the final, approved text.
A clause that would have allowed the state to “authorize a community composed of people having the same faith and nationality to maintain the exclusive character of that community.” was removed from the final bill. President Reuven Rivlin spoke against this clause, saying it could allow the establishment of towns that would, for example, exclude Jews of Middle Eastern origin, ultra-Orthodox Jews or homosexuals.
The Basic Law came about as Israeli Members of Knesset felt under pressure from the International Community and internal politics. The Judges of Israel will have discretion in how to apply the laws and given that the Supreme Court currently treats Arabs preferentially, even the most controversial clauses are unlikely to alter the democratic nature of Israel in any substantial way.
Some of the outrage over the Basic Law may be coming from genuine concern for Israeli democracy but it seems like hysteria and double-standards are once again being applied in order to demonise and delegitimize Israel. It is ironic that the same knee-jerk reactions from those who are upset by the very nature of a Jewish state seem to have played a part in the Basic Law being drafted and passed.