Bill Would Force High Court Rulings to Favor Israel’s Jewish Character Over Democracy

Draft is the latest proposal from Netanyahu's governing coalition of the so-called nation-state bill that critics say would stifle democracy

Coalition Chairman David Bitan, standing, with Benjamin Netanyahu to his right, May 2017.
Olivier Fitoussi

A new version of a bill defining Israel as the nation-state of the Jewish people would force the High Court of Justice to favor Israel's Jewish character over its democratic character should the two conflict.

The draft bill, which was crafted in recent days, defines the country as “a Jewish and democratic state” but requires the court to interpret the law based on Israel being the Jewish nation-state.

Last week a ministerial committee drafting the bill considered deleting a reference to a democratic form of government. The governing coalition is having problems bridging differences over the draft of the bill, one source told Haaretz.

“[Prime Minister Benjamin] Netanyahu is pressing to have the bill approved on its first reading within two weeks,” said the source, referring to the first of three Knesset votes the bill must pass to became law. “So they will vote on a version that there is no full agreement on, and they will only try to resolve the differences in advance of a second and third reading, after the [Knesset] recess.”

Coalition Chairman David Bitan said this week he expected a preliminary vote on the bill to be held in the last week of July, before the recess.

The first section of the current draft states: “The State of Israel is the national home of the Jewish people, where it is exercising its aspiration for self-determination based on its cultural and historical heritage.”

The draft adds: “The right to exercise national self-determination in the State of Israel is unique to the Jewish people. The Land of Israel is the historical homeland of the Jewish people, and where the State of Israel has been established.”

As the final provision puts it, “The provisions of this Basic Law or any other legislation will be interpreted in light of what is provided in this section.”

Only after this provision is there is a clause referring to Israel’s democratic form of government. “This Basic Law is aimed at protecting Israel’s status as the nation-state of the Jewish people, to enshrine the values of the State of Israel as a Jewish and democratic state in a Basic Law, in the spirit of the principles in the Declaration of Independence.”

The revised version was largely taken from the original, controversial nation-state bill sponsored by MK Avi Dichter (Likud). It would let judges give priority to Israel’s character as a Jewish state in cases when Israel’s Jewish values conflicted with its democratic form of government.

Last week the ministerial committee deliberated between two other versions. It considered whether to have the bill state that Israel is “a Jewish state with a democratic form of government” or to eliminate any mention of democracy and suffice with a vague clause stating that Israel is “a Jewish state in the spirit of the principles of the Declaration of Independence.”

Meanwhile, no agreement has been reached on the status of the Arabic language. The draft of the bill is expected to distinguish between the status of Hebrew and Arabic, but two versions of the provision have been drafted. While Hebrew would receive the status of “state language,” one version would give Arabic “special status in the country, [with] its speakers having the right to language access to the state’s services.”

Another version would add a provision stating: “Nothing stated in this provision shall infringe on the status awarded in practice to the Arabic language before the commencement of this Basic Law.”

“We are not committed to any of the proposed versions,” said MK Amir Ohana (Likud). “But we will absolutely hear everyone and try to arrive at a version that best expresses, without apologizing or quibbling, that in the State of Israel every individual has full human rights, while national rights are possessed by only one people, the Jewish people.”

This week, Netanyahu announced that the coalition parties had agreed to set up a Knesset committee to prepare the bill for the later Knesset votes. The panel will have 16 members drawn from the Knesset Constitution, Law and Justice Committee and the Knesset House Committee. Ten will be members of the coalition, with six from the opposition. Ohana is expected to serve as chairman.

Netanyahu has insisted that the committee be chaired by a member of his Likud party, as a sign that the legislation is a direct initiative of the party. Still, members from other parties signed on as cosponsors of Dichter’s bill.

The Zionist Union party urged Knesset Speaker Yuli Edelstein on Tuesday to cancel the ad hoc committee on the nation-state bill whose establishment was announced by Netanyahu earlier in the day.

MK Merav Michaeli, the party whip, lambasted the fact that the committee was established without consulting or even informing the opposition and demanded that the bill be discussed in one of the permanent committees, like any other bill.

“The fact that the head of the executive branch is announcing what the legislative branch’s procedures and decisions will be attests more than a thousand witnesses to the prime minister’s contemptuous attitude toward the Knesset and the grave harm to the Knesset and the citizens it is supposed to represent,” Michaeli wrote in her letter to Edelstein. “Just two weeks ago, the coalition decided unilaterally to establish a ridiculous committee on early childhood, once again while riding roughshod over the Knesset Constitution Committee, the norms of good government and the opposition.”

She then urged Edelstein, “as the Knesset speaker, whose job is to preserve this house, and certainly the rights of minority parties,” to “stop this thuggish conduct and prevent this grave failure” by abolishing the ad hoc committee, returning the bill to a permanent committee and ensuring that the opposition is consulted in any future decision on establishing an ad hoc committee.

The Yisrael Beiteinu party, in contrast, lauded the decision.

“I welcome the decision to bring the nation-state bill to a vote by the end of the summer session,” said party whip MK Robert Ilatov. “This law should have been legislated when the state was established in 1948.

“Israel is a nation-state and the home of the Jewish people, and the nation-state law will be the best answer to all those organizations that are trying to rewrite history and cast doubt on our historic right to our land and our eternal capital, Jerusalem,” he added.