Israel's Top Court Rules the Nation-state Law Is Constitutional, Denies Petitions Against It

Ten of 11 justices favored denying petitions arguing the law was discriminatory. 'Law does not negate Israel's character as a democracy,' chief justice says. Arab lawmaker deplores 'racist, anti-democratic' ruling

Netael Bandel
Netael Bandel
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A man holds a banner during a rally to protest against the 'Jewish Nation-State Law' in Tel Aviv, Israel on August 4, 2018
A man holds a banner during a rally to protest against the 'Jewish Nation-State Law' in Tel Aviv, Israel on August 4, 2018Credit: AFP
Netael Bandel
Netael Bandel

The High Court of Justice on Thursday denied a host of petitions challenging Israel's nation-state law, saying that the law, which further consolidates Israel's Jewish character, does not contravene the state's democratic character.

Ten of the 11 presiding justices favored denying the petitions, with Justice George Karra – the only Arab on the court's bench – a dissenting voice.

"This basic law is but one chapter in our constitution taking shape and it does not negate Israel's character as a democratic state," Esther Hayut, the court’s president, wrote in the conclusion of the court's ruling. "As such, I do not believe that the Knesset has exceeded the narrow limit on its legislative authority when it enacted into law the Basic Law on Israel as the Nation-State of the Jewish People."

The Basic Law on Israel as the Nation-State of the Jewish People, which was passed by the Knesset in 2018, enshrines a collection of provisions regarding the country’s commitment to its citizens and to Jews in the Diaspora, the status of Israeli Arabs and the status of state symbols. Its critics have argued that it would allow for the discrimination against Arab citizens in the allocation of state land and that it damages the standing of Arabic in the public sphere.

The legislation, which as a basic law has constitutional standing, has also been lambasted for the absence of the words "equality" and "democracy" in its text.

Justice Esther Hayut in Israel's High Court last monthCredit: Ohad Zwigenberg

On Thursday, the High Court ruled that there are no grounds for intervening regarding the law, but added that its provisions must be interpreted in light of Israel's other basic laws, in particular the basic laws on the Knesset, on human dignity and liberty and on freedom of occupation, which specifically address the dual character of Israel as a Jewish and democratic state.

According to the majority opinion, the provision dealing with the right to national self-determination should be interpreted in a way that does not take away individual or cultural rights at the non-national level, similar to arguments made by supporters of the law in an effort to demonstrate that it isn’t discriminatory toward Israel’s Arab minority.

The court also said that the section that makes Hebrew the country's only official language does not discriminate against Arabic, as it doesn’t preclude “the promotion of the language.”

The court ruled the provision on Israel's commitment to Jewish settlement does not allow for the discrimination and exclusion of non-Jews from state-owned land.

For his part, however, Justice Karra echoed previous statements by Hayut, the court president, regarding the conditions for repealing a basic law, writing in his dissenting opinion that the 1st, 4th and 7th sections of the law create "unconstitutional arrangements that negate the heart of the state's democratic identity and shake the very foundations of the constitutional structure."

A 'racist and anti-democratic ruling'

Justice Minister Gideon Sa'ar welcomed the court's decision. The basic law is "an important law that forms another chapter in the country's constitution, which enshrines the essence and character of Israel as the nation-state of the Jewish people," Sa'ar tweeted, adding that the law does not infringe on the individual rights of any citizen.

Interior Minister Ayelet Shaked said that the High Court's ruling that there are no grounds to intervene in the basic law was "stating the obvious." Shaked, who is a former justice minister, claimed that "the very debate on the question of striking down basic laws was conducted with complete lack of authority."

The chairman of the largely Arab Joint List Knesset faction, Ayman Odeh, blasted the court's ruling as "racist and anti-democratic."

"Democracy doesn't mean equality for Jews alone," he said. "We will continue to fight until we reach full equality for all citizens, true justice and real democracy."

The Adalah Legal Center for Arab Minority Rights in Israel, which was one of the petitioners against the law, said: "The Supreme Court has today enshrined Jewish supremacy and racial segregation as founding principles of the Israeli regime." The ruling "finally proves that the High Court does not protect Palestinians from some of the most racist legislation in the world since World War II and the downfall of the apartheid regime in South Africa."

Attorney Dan Yakir of the Association for Civil Rights in Israel, which was also among the petitioners in the case, said that Israel's "nation-state law was legislated with the direct aim of hurting the Arab minority in Israel" and to make them second-class citizens.

Most of the petitioners asked the court to strike it down in its entirety, while others focused on specific provisions. The petitioners included Jewish and Arab lawyers and academics, seven Bedouin army officers, the Meretz party, the Adalah legal center, the Joint List and the committee of local Arab authorities.

Most of the petitions focused on Section 7 of the law, which states that "the state considers the development of Jewish settlement a national value and will act to encourage and promote its expansion." The petitioners claimed that law risked permitting discrimination and would in practice result in overruling the precedent-setting High Court ruling in the Ka'adan case, which declared the leasing of land exclusively to Jews an illegal discriminatory practice.

Attorney General Avichai Mendelblit informed the court that he opposed the Supreme Court's intervention in the case. Such intervention would be unprecedented, he said, and the petitions did not provide grounds to justify such a step.

Legal experts had said that the High Court was unlikely to strike down the law. Though justices have struck down legislation in the past, the Supreme Court has been cautious in its handling of basic laws due to their status as a constitution in the making.

In a prior comment from the bench, Hayut said that for a basic law to be disqualified, it would have to "negate the heart of the state's democratic identity" and "shake the very foundations of the constitutional structure."

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