High Court Hears 15 Petitions Against Controversial Nation-State Law in Live Broadcast

Prime Minister Benjamin Netanyahu: this hearing illustrates why we need judicial reform ■ Knesset speaker and Attorney General oppose the hearing, claiming it threatens the separation of powers

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Israeli Supreme Court President Esther Hayut, December 22 2020.
Israeli Supreme Court President Esther Hayut, December 22 2020. Credit: Yonatan Zindel / Flash

The High Court of Justice heard 15 petitions against the controversial Nation-State Law on Tuesday, in a hearing broadcast live from the court. An expanded panel of 11 Supreme Court justices heard the case.

Prime Minister Benjamin Netanyahu slammed the hearing in a statement posted to his Facebook page: "The court receives its power to rule by virtue of a basic law, and therefore cannot judge the source of its own power. This hearing illustrates the need for a series of judicial reforms."

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In a rare move, Knesset Speaker Yariv Levin sent a letter on Tuesday morning to Supreme Court President Justice Esther Hayut. “The Knesset is the legislative branch and it also has the authority of the Constituent Assembly. The Supreme Court draws its authority from the power of the Knesset, and not vice versa,” wrote Levin.

This is the first hearing the Supreme Court is holding on the requests to rule the Basic Law on Israel as the Nation-State of the Jewish People unconstitutional. The law was passed by the Knesset in July 2018, enshrining that "Israel is the nation-state of the Jewish people" into quasi-constitutional status.

The law is also designed to alter the application of the Basic Law on Human Dignity and Liberty in court rulings, and permit judges to give priority to Israel’s Jewish character in their rulings. The coalition tried to pass a more sweeping version of the bill, which would have brought about more significant changes. The Nation-State law triggered public outrage, in particular from minority Arab communities.

“The very hearing in itself in the Supreme Court on matters of basic laws represents an affront to the most basic democratic principles of the sovereignty of the people, separation of powers and rule of law,” wrote Levin to Hayut.

“The Supreme Court is invoking powers that were not granted to it by law, to put itself above the sovereignty of the people and above the sovereignty of the Knesset, and are doing so to impose the world view of its justices as if they were the rulers of the land… The honorable Supreme Court has never received authority to rile on the validity of basic laws, therefore any attempt to intervene lacks authority and is inherently invalid,” he added.

Legal experts have said in the past that the chances of the High Court overturning the law are very low. In the past, the High Court has overruled or required changes to only regular laws, but has avoided intervening with basic laws, which are considered the equivalent of a constitution.

Attorney General Avichai Mandelblit announced at the beginning of the month that he opposes judicial intervention on the matter. According to Mandelblit, the High Court’s intervention in the standing of a Basic Law is an unprecedented step in Israeli legal history, and the petitioners have not presented evidence of any inherent flaws in the law that would justify the High Court’s intervention.

Among the petitioners against the Nation-State Law are both Jewish and Arab academics and lawyers, as well as former Knesset member Akram Hasson, seven Bedouin who are serving as officers in the IDF, the Meretz party, the Adalah nonprofit organization in the name of Higher Arab Monitoring Committee, the Joint List party, the association of Arab mayors, the mayor of the city of Baka al-Gharbiyeh, the Association for Human rights in Israel, the Movement for Integrity (Tohar Hamidot), and members of the Daliat al-Carmel local council.

Most of the petitioners’ claims focus on Section 7 of the Nation-State Law: “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening.” The petitioners say the implementation of this section could be problematic, because it could legalize discrimination and in practice render previous High Court precedents invalid, which ruled that a policy of leasing land to Jews only was illegal discrimination.

This section of the law was recently used as part of the basis for a ruling by a registrar in the Krayot Magistrate’s Court to deny a petition on behalf of two Arab children from Carmiel to order the city to reimburse their daily travel expenses to and from Arabic-language schools outside of the city, as there are no such schools within Carmiel.

“The time has come to stop the betrayal of the country of its Druze citizens,” said Jabar Hamud, the chairman of the forum of Druze and Circassian mayors and the mayor of Sajur, who is one of the petitioners in the case. “We are Israeli citizens no less than all of the Jews in this country, and we will not agree to be treated like mercenaries.”

A woman waves the Druze flag at a protest against the Nation-State law in Tel Aviv, August 2018. Credit: Moti Milrod

Adalah said that “today there is no constitution in the world that appropriates the country for one ethnic group and states that it is solely the country of a specific ethnic group, and there is no constitution in the world that does not secure the right for equality for all its citizens and residents. If the High Court of justice does not overturn this law in totality, it will approve a constitutional arrangement that will perpetuate principles of an apartheid regime as the basis for Israel’s legal system.”

Activists from the right-wing Im Tirtzu movement are expected to come to the hearing along with members of bereaved families, disabled IDF veterans, students and other citizens who want to express their protest over the very holding of a hearing on the law as a basic law.

The hearing will be broadcast live as part of a pilot program conducted by the Supreme Court with the goal of expanding the principle of making legal proceedings open to the public. The sessions chosen for broadcast are ones that involve precedent-setting issues or that have a high public profile. This is the seventh time a hearing will be broadcast as part of the pilot.

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