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Article Israel: Supreme Court Affirms Constitutionality of Basic Law: Israel – Nation State of the Jewish People

On July 8, 2021, Israel’s Supreme Court, sitting as a High Court of Justice in an extended bench of 11 justices, rejected 15 joint petitions challenging the constitutionality of Basic Law: Israel – The Nation State of the Jewish People or specific provision in it. The petitioners included human rights organizations and “individuals belonging to different sectors in the Israeli society.” (HCJ 5555/18 Hason v. Knesset, main decision by Court President Esther Hayut with nine justices concurring and Justice George Karra dissenting.) When sitting as a High Court of Justice, the Supreme Court has original jurisdiction to adjudicate “matters which it deems necessary to grant relief for the sake of justice and which are not within the jurisdiction of a court or another tribunal.”

The Knesset (Israel’s parliament) passed the Basic Law on July 19, 2018. The Basic Law recognizes that “the right to national self-determination in the State of Israel is unique to the Jewish People.” (Basic Law § 1(c).) It enshrines principles already recognized in regular legislation that reflect the Jewish character of the state. These include the state symbols and emblem, the national anthem, Jerusalem as the state capital, Jewish immigration, holidays such as Memorial Day for the Fallen in Israel’s Wars, and the Holocaust Martyrs’ and Heroes’ Remembrance Day.

The Basic Law states that Hebrew is the “state language,” whereas Arabic enjoys a “special status,” and that “[n]othing in this article shall affect the status given to the Arabic language before this law came into force.” (§ 4.) The Basic Law further determines that “[t]he State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening.” (§ 7.)

While 13 of the 15 petitioners sought an injunction ordering the respondents to explain why the Basic Law should not be void, six requested that the Basic Law be amended to include the principle of equality, and five requested that respondents explain why sections 1(c), 4, and 7 of the Basic Law should not be repealed. The court had previously denied a petition to prevent the entry into effect of the Basic Law.

The following are among the main determinations made by Justice Hayut.

The “Unconstitutional Constitutional Amendment” Doctrine and Judicial Review of Basic Laws

Hayut rejected the petitioners’ argument that the Basic Law, and at least some of its provisions, negated the fundamental values ​​of the Israeli legal system and were therefore void. This argument, she noted, was based on the doctrine of the “unconstitutional constitutional amendment,” which recognizes limits on the authority to amend constitutions or to harm the basic constitutional structure. Examples of countries that recognized the principle, according to Hayut, consisted of those that, unlike Israel, had complete constitutions. In her opinion, the adoption of a comprehensive doctrine for the examination of the constitutionality of constitutional amendments should not be decided until the completion of the drafting and incorporating all of Israel’s basic laws into a complete Israeli constitution.

She clarified that this conclusion did not imply, however, that the authority of the Knesset (Israel’s parliament) in its role as a constituent assembly were unlimited. At this stage of the Israeli constitutional enterprise, Hayut held, the Knesset could not by a basic law eliminate the core principle of Israel being a Jewish and democratic state. This principle, she determined, derived from constitutional texts and a framework that had developed since the creation of the state. Determining that the basic law in question did not violate the character of Israel as a Jewish and democratic state, Hayut refrained from making a determination regarding the court’s authority to exercise judicial review of the constitutionality of basic laws.

Democratic Nation-State and Lack of Neutrality with Regard to National Identity

Hayut further rejected the petitioners’ claim that the Basic Law created a preference for the state’s Jewish character as compared with its democratic character. She maintained that the Jewish “traits” of the state, such as its flag and legal emblem, Holocaust remembrance, recognition of Jerusalem as its capital, etc., had already been regulated in primary legislation and developed in court decisions rendered since the establishment of the state.

As noted in parliamentary hearings before its adoption, the Basic Law did not introduce anything new, but “merely stated the obvious – that the State of Israel is the nation state of the Jewish people.” This was the premise on which the state was established, as enshrined in the Proclamation of Independence. Similar concepts exist in many known models of democratic nation-states that are not neutral with regard to their national identity, Hayut noted. The enactment of the Basic Law, in her opinion, did not negate the core characteristics that define Israel as a Jewish and democratic state and could not change the equal status of its Jewish and democratic identity.

The Principle of Equality

Hayut rejected the petitioners’ claim that the Basic Law’s omission of a commitment to equal treatment of all citizens inflicted severe harm to the democratic character of the state. She noted that the Basic Law constitutes only “one chapter of the future constitution.” The principle of maintaining equal social and political rights for all citizens, regardless of religion, race, or gender, was expressed in the state’s Proclamation of Independence, and recognized by the Supreme Court as a fundamental constitutional principle that is intertwined with Israel’s basic legal concepts.  

Practical Impact on Personal Rights

Rejecting the claim that the Basic Law led to a drastic change of the constitutional regime in Israel, Hayut held that the Basic Law did not include operative provisions that confer personal rights on individuals on the basis of their national affiliation. This conclusion derives from the wording, legislative history, and objectives of the Basic Law. She further maintained that, in cases where a conflict arises between competing components of the state’s identity, the balancing of the Jewish and democratic values will be accomplished through respect for both values and through “synthesis and harmony.”

Constitutionality of Specific Contested Provisions

Hayut rejected the argument that the Basic Law “swiftly negates the right to self-determination of minority groups” in Israel. She determined that section 1 (c) of the Basic Law “is concerned with the uniqueness of the right to state self-determination for the Jewish people. It does not deny minority groups their right to cultural self-determination at the sub-state level.” Neither does it “detract from the existing arrangements that recognize the uniqueness of non-Jewish minority groups in the aspects detailed or the possibility of adopting in the future additional arrangements that recognize this uniqueness.”

Hayut further rejected the argument that section 4 infringed on the democratic characteristics of the state in a manner that exceeded the Knesset’s constitutive authority. She recognized that section 4 intended “to anchor as a constitutional norm and as one of the basic values of the State of Israel the Hebrew language as the state language, and thus reflect its primacy over the other languages ​​spoken in [the State].” The court, however, had previously recognized the commitment of Israel as a Jewish and democratic state to protecting its minorities’ rights to well-being and preservation of their culture and language. Protection of the Arabic language, she noted, is especially important because it is the language of the largest minority in Israel and associated with its cultural, religious, and historical characteristics. She further observed that section 4 did not refer to either Hebrew or Arabic as “official languages.”

Hayut opined that the Basic Law must be interpreted in a way that would reflect the drafters’ intent to protect the preeminent status of the Hebrew language without causing harm to the special status of the Arabic language as an official state language. This interpretation reflects the drafters’ intent to maintain the existing status of both Hebrew and Arabic as official languages without diminishing the status of the Arabic language in accordance with article 82 of the King’s Order in Council and its interpretation by the court.

Explaining that basic laws must be interpreted broadly and with the objective to unify and harmonize them, Hayut determined that section 7 regarding the development of Jewish settlement as a national value should be interpreted “in a manner consistent with sections 2 and 4 of Basic Law: Human Dignity and Liberty.” Hayut reiterated that the constitutional right to equality was derived from the constitutional right to dignity. Such an interpretation leads to the conclusion that the value of Jewish settlement did not necessarily imply harm to equality. An egalitarian policy, she held, could be pursued with respect to the allocation and division of state lands without harming the character of the state as a Jewish state that is “committed to fulfillment of the Zionist enterprise.”

Updated October 4, 2021, to correct date of adoption of Basic Law and add a link to the law.

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