Israel Already Is a Jewish Nation-state

The Jewish and democratic character of the State of Israel is anchored not just in legislation, but in its Basic Laws and declaration of independence.

Mohammed Wattad
Mohammed Wattad
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Prime Minister Benjamin Netanyahu delivers a statement to the media in Jerusalem, November 18, 2014.
Prime Minister Benjamin Netanyahu delivers a statement to the media in Jerusalem, November 18, 2014. Credit: Reuters
Mohammed Wattad
Mohammed Wattad

After last week’s delay on the vote for the proposed Basic Law on the Jewish nation-state, Benjamin Netanyahu said it was time to enshrine in legislation the Jewish character of the State of Israel as the state of the Jewish people.

According to the prime minister, this had never been codified, while civil rights, the assurance of civic equality for every citizen, regardless of religion, race, or gender, had been anchored in the 1992 Basic Law: Human Dignity and Freedom. In this context, Netanyahu read out sections of United Nations Resolution 181, known as the partition resolution, passed in 1947, and parts of the Declaration of Establishment of State of Israel.

This left the impression that the prime minister is not very familiar with the details of Israeli legislation, unless he is trying to mislead the public with regard to its legal situation. UN Resolution 181 indeed recognizes the Jewish character of the State of Israel. However, it conditions this on the existence of a democratic regime that ensures equal civil and political rights to all citizens of the state.

It’s no surprise, therefore, that Israel’s founding declaration included clear language about striking a proper balance between the Jewish character of the state and its democratic character. The declaration was worded in a manner consistent with the partition resolution, and was accordingly presented to the international community so that it would recognize the State of Israel, which it did.

The Jewish character of the State of Israel is anchored explicitly, along with its democratic character, in Section 1a of the Basic Law on Human Dignity and Freedom, and in Section 2 of the 1994 Basic Law: Freedom of Occupation, which states, “The purpose of this Basic Law is to protect freedom of occupation, in order to establish ... the values of the State of Israel as a Jewish and democratic state.”

Moreover, Section 7(a)(1) of the 1958 Basic Law: The Knesset also establishes the Jewish and democratic character of the State of Israel as grounds for disqualifying a candidate and/or a list of candidates for the Knesset, whose objectives or actions, explicitly or implicitly, negate the existence of the State Israel as a Jewish and democratic state.

In addition, there are sections in the Basic Law: Human Dignity and Freedom and of the Basic Law: Freedom of Occupation stating that basic human rights in Israel “will be honored in the spirit of the principles in the Founding Declaration of the State of Israel.” This is an explicit reference, in Basic Laws, to the declaration of independence.

In other words, both the Jewish and democratic character of the State of Israel is anchored not just in legislation, but in its Basic Laws.

Netanyahu’s inaccuracies do not end there. For were it not for the so-called “judicial activism” of the Supreme Court, Israeli citizens in general and the Arab minority in particular would have no guarantee of equal rights. The Basic Law: Human Dignity and Freedom does not ensure protection, explicit or implicit, of primary basic rights such as the right to equality, freedom of expression and freedom of religion. It is the Supreme Court that acknowledged the existence of these unwritten constitutional principles and gave a purposeful interpretation to the “human dignity” enshrined in the Basic Law: Human Dignity and Freedom, to protect such unspecified human rights as equality and so on.

If the declaration of independence and its promises are so close to the heart of the prime minister, it would behoove him to promote the Basic Laws that recognize the human rights anchored in that declaration: to maintain full social and political rights for all the country’s citizens, regardless of religion, race or gender, and to assure, “freedom of religion, conscience, language, education, and culture.” All these are rights that have never been enshrined in basic legislation, not even in the Basic Law on Human Dignity and Freedom.

Thus, what’s really behind the basic law on the Jewish nation-state is an effort to weaken the power of the Supreme Court to give a balanced interpretation to the words “Jewish and democratic,” and instead subject the democratic character of the state to its Jewish character. Indeed, according to the prime minister, enactment of this proposed basic law would require the justices to give weight to the Jewish character of the state, because to date, he says, judges consider only its democratic character.

This approach must be understood given the clear propensity of Netanyahu and his colleagues to weaken the power of the Supreme Court. It should be noted that the Supreme Court has never issued a ruling that weakened the Jewish character of the state. Supreme Court justices have only sought to strike a proper balance between its Jewish and democratic character.

Dr. Mohammed Wattad is a visiting professor at the law school and political science department of the University of California, Irvine.

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