Israel’s Attorney General Against High Court Intervention in Contentious Nation-state Law

Netael Bandel
Netael Bandel
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Attorney General Avichai Mendelblit at the ninth judicial conference, Herzliya, September 3, 2020
Attorney General Avichai Mendelblit at the ninth judicial conference, Herzliya, September 3, 2020Credit: Meged Gozani
Netael Bandel
Netael Bandel

Attorney General Avichai Mendelblit said Thursday that he opposes any judicial intervention over the divisive nation-state law on the grounds that it was passed as a basic law.

Following 15 petitions asking the court to overturn the law, Mendelblit filed a brief with the High Court of Justice outright rejecting any appeals, arguing that for the court to overturn a basic law, which has quasi-constitutional status, would be an “exceptional, precedent-setting decision.” 

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The attorney general said the petitioners failed to identify any substantive problems in the law that would justify such intervention, rejecting both of the general arguments raised by the petitioners: that a constitutional amendment could itself be unconstitutional, and that the Knesset had abused its power as the constitutive body entrusted with writing a constitution. He also rejected the petitioners' claims that specific provisions of the law were problematic. 

On the question of interpretation, Mendelblit wrote that “the nation-state law enshrines the elements of Israel’s national identity as a Jewish state in a basic baw. It thereby carries an extremely important constitutional message, while granting constitutional garb to the vision of the state as the nation-state of the Jewish people. But it doesn’t detract from the individual rights of any Israeli, irrespective of religion or ethnicity.”

This comes after Krayot Magistrate's Court cited the controversial  law in dismissing a lawsuit brought by two Arab schoolchildren against their northern town of Carmiel. The siblings asked to be reimbursed for expenses they incurred traveling to an Arabic-speaking school outside the city, because there are no such schools in Carmiel. The court stated that the city's "Jewish character" must be preserved in the ruling, and that "establishing an Arabic-language school... [and] funding school rides for Arab students... could change the demographic balance and damage the city’s character."

The petitioners include both Jewish and Arab lawyers and academics; former MK Akram Hasoon; seven Bedouin army officers; the Meretz party; Adalah – the Legal Center for Arab Minority Rights in Israel, acting on behalf of the Higher Arab Monitoring Committee; the Joint List alliance of majority-Arab parties; the committee of Arab mayors; the mayor of Baka al-Gharbiyeh; the Association for Civil Rights in Israel; the Tohar Hamidot organization; and members of the Daliat al-Carmel city council.

In the past, jurists have played down the chances of the court overturning a basic law. The court has overturned or demanded changes to ordinary legislation, but it has never overturned in a basic law.

During a hearing on petitions against an amendment to the Basic Law on the Knesset  allowing 90 of parliament’s 120 members to oust a fellow lawmaker  Supreme Court President Esther Hayut said the court could overturn a basic law in principle, but only if “it negates the core of the state’s democratic identity and shakes ‘the foundations of its constitutional structure.’”

The Supreme Court did intervene in a basic law back in 2017, when it warned that it would disqualify a provision of the Basic Law on the State Economy authorizing the government to pass a two-year budget rather than an annual one. However, the justices based this on procedural grounds, arguing the government couldn’t make a constitutional change via temporary legislation. Since then, there have been no two-year budgets.

In a hearing last month on petitions against the amendment to the Basic Law on the Government that created the position of alternate prime minister, Hayut again voiced reservations about overturning a basic law.

“The court has never overturned a basic law or an amendment to a basic law on the grounds that it is unconstitutional,” she said. “This is a doctrine unknown in most countries worldwide ... and there’s a big question as to whether this doctrine should be adopted – especially here, where there isn’t even a constitution.”

Although the court treats the basic laws as having quasi-constitutional status and occasionally overturns ordinary legislation on the grounds that it violates them, Israel has never adopted a formal constitution.

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