In 2000, the High Court of Justice ruled in the Kadan case that the state must not discriminate in the allocation of state lands, and was thus forbidden to build on its lands communities that exclude Arabs. If the proposed Basic Law on Israel as the Nation-State of the Jewish People being advanced by coalition chairman MK Zeev Elkin (Likud) passes, this ruling is liable to be overridden.
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Elkin’s bill states that the government is permitted to allow members of the same nationality or religion to develop separate communities. Essentially, this means it would be constitutionally valid to allocate separate lands for Jews and Arabs – and separate, as we well know, is never equal. This echoes the justification given in South Africa for their apartheid regimes and separate land allocations. Each group, it was argued then, was entitled to its “separate development.”
Another court ruling that could fall by the wayside requires the municipalities of mixed cities to display dual-language (Hebrew and Arabic) signage. While the proposed basic law speaks of Arabic’s “special” status, Hebrew would be the state’s only official language if the bill passes.
Both these examples demonstrate how the proposed law could bring about a retreat in the realm of equality – although, even now, the situation is far from ideal.
Despite the Kadan ruling there is no equality in land allocations, and passage of the Admissions Committees Law – in which the High Court refused to intervene on grounds that the issue was not yet “ripe” for discussion – allows housing discrimination through the back door. Despite the previous ruling on Arabic signage, in reality Arabic isn’t on an equal footing in the State of Israel.
What Israel really needs is for equality to be strengthened. The principle of equality is not expressly anchored in any basic law. Although the High Court has ruled that undermining equality is liable to violate the right to human dignity (as expressed in the Basic Law on Human Dignity and Freedom), instead of debating a bill that would expressly codify the right to equality, the government is discussing a bill that would intensify inequality. This testifies to the sad state of the battle for democracy in Israel.
In the modern age, democratic countries define themselves as belonging to all their citizens, not just some of them. Sometimes they address the fact that there are a number of communities within them, but constitutionally they define the state as a partnership of all those communities.
Israel already identifies itself constitutionally as a Jewish state, thus associating itself with only some of its citizens. As a result, a comparison to other democratic nation-states fails. The separation between the element of nationality (Jewish) and the element of citizenship (Israeli), and identifying the state by its nationality – anchored solely in the Jewish religion – disaffiliates 20 percent of the nation’s citizens.
No such definition exists in democratic states where the citizenship and nationality element overlap, as in France. Nor does it exist in states that constitutionally recognize the existence of several national communities but are built on partnerships and equality among them, as in Belgium and Canada.
So, for example, if the United Kingdom had declared that it is the state of the English, and the Scots and other groups were a minority within it that would only receive rights as individuals, the Union would have collapsed long ago. But in Israel, even the “softened” versions of Elkin’s bill determine that the right to national self-determination in the State of Israel is unique to the Jewish people, a perception that identifies the state with one ethnic and religious group, and reinforces its status as an ethnocracy, not a democracy.