Analysis

Court Rejection of Israeli Nationality Highlights Flaws of Jewish Democracy

The distinction between citizenship and nationality ostensibly justifies and rationalizes discrimination and exclusion.

Wednesday’s Supreme Court decision rejecting the appeal of 21 appellants to be listed as “Israelis” in the Population Registry’s “nationality” rubric (which actually represents ethnic identity and not citizenship) reiterated, but also expanded on a ruling issued by then-Supreme Court President Shimon Agranat some 40 years ago.

Nearly six years ago Justice Noam Sohlberg, then a Jerusalem District Court judge, rejected the petition because the character of the topic was ideological, historic and political, but not legal, and was therefore not justiciable. But in Wednesday’s ruling the justices chose to enter the lion’s den of the issue of nationality and citizenship in Israel, and debated the separation of these elements. Although the panel of Supreme Court President Asher Grunis, Hanan Melcer and Uzi Vogelman rejected the appeal, the justices said the issue was indeed justiciable.

As Vogelman wrote, there is a recognized difference between “civic nationality,” in which nationality and political citizenship are identical and which is based on a social covenant, and “ethno-cultural nationality,” in which an individual’s affiliation with a national group is the result of common characteristics, like language, culture and religion. It seems that Vogelman was correct when he described the second of the two as the way the State of Israel relates to the concept of “nationality.” But the question is whether in a democratic era it’s possible to have equality among citizens while retaining the concept of ethnic nationalities and the state’s identification with only one of those groups.

Although Vogelman agreed with the District Court that courts of law are not the natural place for debating these issues, he rejected the notion that the issue is not justiciable. In his words, to issue a declarative ruling for the appellants that they belong to the “Israeli” nationality, the appellants would have to prove the existence of such a people. Given the historic ruling by Agranat, who rejected the argument that the founding of the State of Israel created an Israeli nationality, Vogelman stressed the need to prove that since Agranat’s ruling there had been some change. In his eyes no such change was proven, and the appellants’ argument was in essence wishful thinking; they had not proven that the public’s perception of the concept of “nationality” had changed.

The distinction between nationality and citizenship was even more strongly emphasized by Melcer, who based himself on the definition of Israel as a Jewish state in the Declaration of Independence and in basic laws, and ruled that the appellants were confusing the concept of nationality that relates to “the components of the people who live in the state” and the question of citizenship. Melcer quoted Prof. Menachem Mautner, who champions recognizing an inclusive “Israeli” identity component as a constitutional precept, but dismissed his words as “desirable law” and not “existing law.” The fact that the state has defined itself constitutionally as “Jewish” negates the possibility of recognizing an Israeli “nationality.” In his words, there is “Israeli citizenship,” but “citizenship is one thing, and nationality is another.” Uniting these separate concepts into an Israeli “nationality” would, he said, contradict the Jewish and even the democratic character of the state.

Indeed, the Population Registry distinguishes between citizenship and nationality, the latter encompassing an ethnic concept of nationality, and it’s possible that efforts to unite them is “desirable law.” But one must consider the significance of this distinction when it is taken together with the constitutional definition of the state as a Jewish state. Even though Melcer stressed that his ruling does not derogate from the obligation of the state to grant equality to all its citizens, residents and those under its control, without regard to nationality, race, religion or gender, in Israel the significance of choosing the ethnic definition of “nationality” and the distinction between the elements of citizenship and nationality fixes the concept in a way that is fundamentally unequal.

Among democratic countries there are those who relate to the elements of nationality and citizenship as overlapping — France, for example. There are those who explicitly declare its citizenship to be the union of a number of groups, such as Belgium, whose constitution states that the country is composed of three groups, the Flemish community, the French community and the German-speaking community. Either of these approaches could have been chosen for Israel. One could continue to see the State of Israel as expressing the self-determination of the Jewish-Israeli people, but to be democratic this would have to be based on a philosophy of civil equality, or as a partnership between several groups.

But in Israel the separation between the citizenship element and the nationality element, taken with the identification of the state with one specific national group, creates a hierarchy and exclusion, which is expressed not just on the level of symbols and declarations, but also in terms of allocating resources, governmental power, jobs, discrimination (formal or informal) and the need to indicate in the Population Registry who is a Jew and who isn’t, which the ruling addressed. The distinction between citizenship and nationality ostensibly justifies and rationalizes discrimination and exclusion.

One may ask if the court is indeed the appropriate body to make the revolutionary declaration of the existence of an Israeli nationality. But unlike the District Court, which stressed that it was not taking a stand on the essence of the matter, the Supreme Court chose to reject this possibility altogether, and in Melcer’s ruling even said that such a possibility contradicts the constitutional definition of Israel. This is regrettable, since the distinction between citizenship and nationality, taken with the state’s being identified with only one of the national groups, will continue to obscure the possibility of having real democracy in Israel.

Gil Yohanan