AG Opposes Nation-state Clause Prioritizing Israel’s Jewish Character Over Democratic One

Proposed Basic Law would force the Supreme Court to rule on all laws through prism of Israel’s definition as a Jewish state, but Attorney General Avichai Mendelblit says it’s legal

Attorney General Avichai Mendelblit, January 16, 2017.
Ilan Assayag

Attorney General Avichai Mendelblit says he opposes the clause in the proposed nation-state law that gives preference to the Jewish character of the state over its democratic one in Supreme Court rulings. His objection is based on moral grounds, he said, but noted that the clause is legal.

His remarks were made in closed meetings with Prime Minister Benjamin Netanyahu and other ministers. The proposed Basic Law is being sponsored by the governing coalition.

According to the draft bill, the Basic Law would guide Supreme Court justices to interpret and rule on all laws through the prism of Israel’s definition as a Jewish state, and would demote the nation’s democratic status to a secondary one.

That means the Supreme Court (including when it sits as the High Court of Justice) would have to prioritize the Jewish character of the state in the event of a collision with values of democracy.

The first part of the bill includes a section of clauses that define Israel as the Jewish nation-state.

The first says that “the State of Israel is the national home of the Jewish people, in which it realizes its desire to self-determination according to its cultural and historical heritage.”

The bill also says the right to self-determination in the State of Israel is unique to the Jewish people, and that “the Land of Israel is the historical homeland of the Jewish people and the place of the establishment of the State of Israel.”

The last clause in the section explicitly states that “the provisions of this Basic Law or any other legislation shall be interpreted in light of the provisions of this section.” In doing so, it gives the Jewish character of the state priority in Supreme Court rulings.

Another section calls upon the courts to rely on the Mishna and Talmud in cases where the existing legal system does not address the legal problem before them. It says: “If the court faces a legal question requiring a decision and finds no answer to it in legislation, case law or by means of a clear analogy, it will rule based on the principles of freedom, justice, integrity and the peace of Jewish heritage.”

The bill is being written by a team of ministers, including Yariv Levin (Likud), Ayelet Shaked (Habayit Hayehudi), Eli Cohen (Kulanu) and its sponsor, Avi Dichter (Likud).

Coalition chief David Bitan (Likud) said earlier this week that the bill would not be brought for a vote in the Knesset before summer recess, despite pressure from Netanyahu to advance the bill.

However, Bitan accepted Knesset legal adviser Eyal Yinon’s recommendation to postpone the process in order to enable wide debate on such a complicated bill.

Bitan said the delay (by at least three months) would also diminish the possibility of the High Court ruling against the new Basic Law on the grounds that there was insufficient debate in the Knesset.