Gadi Taub and Nissim Sofer are worried that the High Court of Justice might strike down the Basic Law on Israel as the Nation-State of the Jewish People. They deride and denounce the court for its willingness to hear petitions against the law. They accuse it of hubris and of declaring war on the legislature and on the foundations of democracy, and assert that it is in the process of reducing Israeli citizens to the status of subjects.
They argue that while there is an approach that would allow for the annulment of “an unconstitutional constitutional amendment” if it contradicts “the fundamental principles of the system,” with the situation as it now stands, this approach raises problems. For even if it could reasonably be inferred from the Basic Laws that the High Court had the implied authority to strike down sections of a constitution, there is no consensus as to the definition of the “fundamental principles” upon which such a ruling would be derived.
Allow me to come to the aid of these two distinguished and learned writers by directing their attention to the fundamental principles in the Declaration of Independence, which attained the consent of the state’s founders. In the 1992 Basic Laws, they also acquired the status of the supreme values under whose inspiration legislation, including that of Basic Laws, was accomplished. This is where the real difficulties arise regarding the nation-state law.
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The “Nation-State of the Jewish People” is a term that was invented in recent years. The Declaration of Independence speaks of a Jewish state and of a national home for the Jewish people in the Land of Israel. As it turns out, the two are opposites. While the newly established Israel was a state that was inclusive of non-Jews (“We appeal … to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the state on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions”), the nation-state is a state that separates its citizens. It encloses its Jewish citizens and does not give its non-Jewish citizens a part in it (“Israel is the nation-state of the Jewish people,” said the prime minister, “and its alone”).
“Survivors of the Nazi holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to the Land of Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national home,” says the Declaration.
These rights were recognized as fundamental in the Basic Law on Human Dignity and Liberty, but Justice Minister Ayelet Shaked is greatly troubled by this law and these rights. In numerous public statements, she has proclaimed that they need to be “balanced” by national rights and essentially withheld from anyone who isn’t Jewish.
How is this at all conceivable given the explicit statement in the Declaration of Independence that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”? The nation-state law clearly cannot be reconciled with the value of equality as stated in the Declaration.
It goes without saying that this is not just an undermining of the equality between Jews and non-Jews, but an undermining of the equality between citizens of the same religion, primarily among the Jews themselves.
And then there’s this: Section 7 of the nation-state law says: “The state views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening.” Yet the Declaration of Independence states: “[Israel] will foster the development of the country for the benefit of all its inhabitants.”
Perhaps the nation-state law cannot be struck down for having omitted the only Jewish value in the Declaration of Independence – “[The State of Israel] will be based on freedom, justice and peace as envisaged by the prophets of Israel” – but the Basic Law on Israel as the Nation-State of the Jewish People must be declared an unconstitutional constitutional amendment that contravenes the basic values of the system, and it must be annulled.
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