One of the attorney general’s main arguments in his responses to the petitions against the so-called Jewish nation-state law is that the High Court of Justice does not have the jurisdiction to debate the law. Avichai Mendelblit added that the “unconstitutional constitutional amendment” doctrine – which allows such judicial intervention – cannot be applied to the Basic Law on Israel as the Nation State of the Jewish People. In his opinion, the law does not contradict the basic principles and norms of the system underlying Israel’s constitutional establishment.
This Basic Law, claims the attorney general, is only part of a still-incomplete process of formulating a proper constitution, and does not contradict the principles that have thus far informed its foundations. On the contrary: Mendelblit maintains that the law enshrines what appears to embody, from an internal Israeli point of view, the state’s most essential, fundamental values.
Bibi gets immunity – just not the kind he really wants. LISTEN to Haaretz Weekly podcast
What determines the basic norms we should employ to decide whether a constitutional amendment is legitimate or illegitimate? The attorney general claims that such norms have yet to be decided in the Israeli system. Nevertheless, this didn’t stop him from ruling that Israel is the national home of the Jewish people, and that the right to self-determination is unique only to Jewish citizens – in accordance with Article 1 of the law – as two key points constituting the very foundation of that same system.
According to which criteria would it be reasonable or just for the dominant ethnic group to determine a collective constitutional identity that strengthens its supremacy, while denying that very same right to self-determination to a national minority in its own homeland? For the first time, the High Court is being called on to examine the collective legal status and group rights of Israel’s Palestinian citizens, and it will be required to examine the denial of the right to self-determination to them and to Palestinians in the occupied territories. The basic norms according to which the constitutionality of the nation-state law is determined cannot be based on Israeli basic norms, but rather on international and universal values on which there is international consensus.
Mendelblit is basing his argument on the 1947 UN Partition Plan, claiming that it constitutes the basis for the ruling that Israel is the national home of the Jewish people. He also relies on it in order to justify Article 1 of the law, which enshrines the exclusive right of the Jewish people to self-determination. But the plan, which was approved at the UN General Assembly, determines that “the State shall be bound by all the international agreements and conventions, both general and special” – referring to the Jewish state that was due to be established in part of the territories of the British Mandate.
Therefore, even if the court accepts the attorney general’s approach, the ostensible legitimacy of the fact that Israel is a Jewish state is based, according to him, on abiding by the norms enshrined in international conventions. The latter forbid institutionalized discrimination and establishment of racially segregated regimes, and any undermining of the right to self-determination of homeland and indigenous minorities.
The UN Convention on the Elimination of All Forms of Racial Discrimination, for example, includes an absolute prohibition against racial exclusion and segregation. It calls for all member countries, including Israel, to “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”
- On thorny nation-state issue, Israel's High court faces a tragic dilemma
- The fall of Israel's democracy began with its nation-state law
- The Basic Law on Apartheid
The UN CERD committee that monitors the implementation of the convention made it clear as early as a year ago that Article 1 of the Jewish nation-state law contradicts its directives; the same is true of Article 4, which undermines the status of the Arabic language, and Article 7, which defines development of Jewish settlement as a national value. The committee also stressed once again that the right to equality has yet to be enumerated in constitutional law in Israel. A similar concern was raised previously by the panel that monitors the International Covenant on Economic, Social and Cultural Rights, in which Israel is also a member.
The Basic Law on the nation-state violates all fundamental, international norms and essentially establishes an apartheid regime, because it defines the “People” that is eligible for basic rights enshrined in international law – first and foremost the right to self-determination. This situation has ramifications vis-a-vis constitutional protection against the undermining of basic rights, such as the right to equality, the prohibition against discrimination and the right to dignity.
The nation-state law determines which citizens Israeli government authorities are obligated to protect and to whom it grants rights. An illustration of the consequences of failing to include a certain group in the definition of the “People” enshrined in the constitution as a legitimate political community can be found in the 1857 U.S. Supreme Court ruling to the effect that the slave Dred Scott was not entitled to freedom because the opening words of the U.S. Constitution, “We the People,” referred only to white citizens, thus excluding all Black slaves from the Constitution’s protection. That was a primary justification for the continuation of slavery in the United States, resembling the logic according to which the constitution of South Africa established a legal basis for its apartheid regime.
An examination of the validity of judicial review of a Basic Law by using the tools that paved the way to its legislation, from the Israeli point of view, is like appointing a cat to guard the cream. If the High Court does not examine the Jewish nation-state law according to norms external to the Israeli system and in accordance with criteria derived from consensual universal and international norms and values, it will justify the existence of a regime of constitutionally-mandated segregation for every ethnic dominating group trying to grant itself exclusive supremacy in any country, not only the Jewish people in Israel.
Attorney Sawsan Zaher is deputy director general of Adalah – the Legal Center for Arab Minority Rights in Israel, and a member of the team that appealed to the High Court against the nation-state law.