Opinion |

On Thorny Nation-state Issue, Israel's High Court Faces a Tragic Dilemma

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Israel Supreme Court President Esther Hayut, May 4, 2020
Supreme Court President Esther Hayut. It would be better for the court to rule on controversial issues relating to identity on a case-by-case basis, when there may be human rights violations.Credit: Oren Ban Hakon
Menachem Mautner
Or Bassok

Israel can no longer be considered a young democracy. However, even democracies that have passed the age of 70 face dangers. The dissolution of the Union and the Civil War occurred in the 85th year of America’s democracy. The Civil War erupted in part due to the ruling of the U.S. Supreme Court in the Dred Scott case. In this infamous judgment, the court held that no Black person of African descent could be a citizen of the United States. The Dred Scott ruling casts serious doubts on the belief that judges should be regarded as society’s moral compass. It also shows that mistaken judicial decisions may lead to tragic results.

Drawing analogies is a dangerous business. Whereas slavery existed in the United States in the years preceding the Civil War, in 2020 Israel no slavery exists. However, the pending petitions that are demanding that Israel's High Court of Justice strike down Basic Law: Israel as the Nation-State of the Jewish People present a grave danger to the future of Israeli democracy. In our opinion, the court should avoid ruling on this question.

The so-called nation-state law is a bad law, and it would have been better had the Knesset not passed it. The negative repercussions of this legislation were demonstrated recently in a ruling by Yaniv Luzon, senior registrar of the Krayot Magistrate's Court. The ruling regarded a petition submitted on behalf of two Israeli Arab children from the northern city of Carmiel arguing that their right to education was being infringed because they were not reimbursed for travel expenses to and from the Arabic-language schools they attended outside the city.

Luzon denied the petition, in part based on the argument that the nation-state law sees advancement of Jewish settlement as being of primary national value. In order to preserve the Jewish majority in Carmiel, he argued, making Arabs’ ability to reside there more difficult is justifiable.

Anyone who believed that this Basic Law’s impact would be mainly symbolic has been proven wrong. It seems inevitable that it will continue to trickle down into court rulings until its impact is felt in every corner of Israeli law. Yet the High Court is currently faced with a tragic dilemma. Striking down the law in question would mean that the vision of Israel as the nation-state of the Jewish people – anchored in a Basic Law – is unconstitutional. Denying the petitions would mean that the highest legal instance in the country bestows legitimacy upon a Basic Law that undermines the delicate balance between Israel’s character as a Jewish state and as a democratic state.

And if issues arising from the contents of the nation-state law are not problematic enough, a decision to scrutinize the legality of this Basic Law would create a new precedent that would give the High Court the authority to strike down Basic Laws, which essentially constitute Israel's constitution. In other words, a ruling that the court indeed has the authority to review the legality of Basic Laws – even while denying petitions aimed at striking down this particular one – would mean that the justices have the last word when it comes to the contents of the constitution.

Seizing this authority will be yet another radical step in the court’s long-time involvement in the process of formalizing Israel's constitution. For years, Supreme Court justices denied the claim – made most forcefully by former Supreme Court President Moshe Landau – that the constitution is in fact the brainchild of the court. The justices claimed that in 1992 when the Knesset passed Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, it fomented a legal upheaval, even without meaning to, by which all the Basic Laws passed can essentially be regarded as the country's constitution.

If the court assumes the authority to strike down Basic Laws, it would mean that not only has it played a leading role in what was termed “the 1992 constitutional revolution” by former Supreme Court President Aharon Barak, but also that it is now the institution demarcating the limits of that “revolution.”

The High Court is thus caught in a tragic dilemma: Any ruling it hands down will intensify the fundamental tensions that have divided Israeli society for at least two generations. However, the justices have the means to avoid this tragic dilemma. They can deny the petitions in question on the basis of the doctrine of nonjusticiability. The great jurist Alexander Bickel, who taught at Yale Law School in the 1960s and '70s, once explained that nonjusticiability is one of a collection of doctrines that allow courts to avoid weighing in on issues for which legal language is not suitable.

Israel’s cultural identity stands at the center of the petitions currently challenging the nation-state law. The identity of a state is not a legal issue, by its very nature. In view of the fierce disagreements regarding Israel’s identity being waged between Jewish and Arab citizens and between religious and secular Jews, it would be better for the High Court to rule on controversial issues relating to identity on a case-by-case basis, offering pragmatic solutions for concrete violations of human rights.

A judgment that attempts to explicate the essence of Israeli cultural identity will inevitably incite strong resentment on the part of certain sectors of society.

Allowing the court to rule on the issue of Israel’s cultural identity will be yet another step on the path that began with the definition of Israel as a “Jewish and Democratic” state in the two 1992 Basic Laws. Prior to that time, the state’s identity was not an issue for jurists. The idea that law could determine the identity of the state was foreign to many Zionist leaders who rejected it explicitly. For example, in 1937 Ze’ev Jabotinsky spoke about the nature of the future Jewish state before the Peel Commission, declaring that he did not believe “it is desirable that the constitution of any state should contain special paragraphs explicitly safeguarding the national character of it; I think the less of such paragraphs we find in a constitution the better.”

Similarly, Israel’s first prime minister David Ben-Gurion, was concerned that drafting a constitution in the early days of the state would lead to fierce controversies over issues relating to its cultural identity. This concern was one of the reasons the first Knesset did not fulfil the promise made by the Declaration of Independence to enact a formal constitution.

The difficulties in providing a legal definition for the state’s cultural identity are evident from the experience Israel has acquired with the “Jewish and democratic” formula. This formula excludes the state’s Arab citizens. The nation-state law only intensifies this exclusion. The ruling in the Carmiel case attests that such exclusion may have negative material consequences, such as denial of financial assistance to Arab children.

Rejecting the petitions on the constitutionality of Basic Law: Israel as the Nation-State of the Jewish People on the grounds of nonjusticiability will allow the High Court to avoid the tragic dilemma. It will be able to apply that law in specific, concrete cases in which human rights have been infringed. In this manner, the court will be able to overturn rulings such as that handed down by Luzon. But when it comes to the larger, more fundamental question of the identity of Israel and the constitutionality of the Basic Law in question – it would be wiser for the court to deny the petitions on the basis of nonjusticiability.

Dr. Or Bassok teaches at the School of Law, Nottingham University. Prof. Menachem Mautner teaches at Tel Aviv University's Faculty of Law.

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