In the wee hours of Thursday morning, Basic Law: Israel as the Nation-State of the Jewish People (the Nation-State Law or Nationality Law) was approved in its third reading, with 62 MKs voting in favor and 55 against.
The proclaimed intention of the law, as explained during the prevote debate on the bill by Amir Ohana (Likud) – chairman of the committee established to prepare it for second and third readings – was more or less to fortify “the Zionist principles that make up the state and the value of Jewish settlement... After 2,000 years in the Diaspora, we have... a national home. It is ours and we may say proudly, and not in a whisper, that it is ours. It is not a binational, bilingual or bicapital state – it is the one and only national state of the Jewish people, whose language is Hebrew, and whose capital is Jerusalem.”
What many of the speakers from the opposition pointed out was that the law hardly says a word about the fact that there is also a 20% minority in the State of Israel made up of Palestinian Arabs, whose rights – especially the right to equality – are totally ignored by the law.
It should be said at the outset that if the Nation-State Law was part of the chapter on basic principles of an Israeli constitution-to-be (or not-to-be...) and was balanced by other principles – such as equality among all parts of the population and minority rights – then the main criticism of it in parts of Israeli society and abroad would probably have vanished.
In fact, when the Knesset Constitution, Law and Justice Committee – chaired by Michael Eitan (Likud) – worked on a proposal for a Constitution by Broad Consent in the course of the 16th Knesset, two versions of this option were deliberated and reported, as well as the option of leaving out mention of the nature of the state altogether. The option of stating in the constitution that the State of Israel is the national state of the Jewish people, without balancing this with a statement on the status and rights of the minority, was not even considered.
BUT THERE are other problems. For example, the law states that “the Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established” (article 1) and then that “the State of Israel is the nation-state of the Jewish people” (article 2), implying that no other nation-state can exist in the borderless “Land of Israel.”
Leaving the connection between the Land of Israel and the State of Israel vague also seems to suggest that the statement that “the State considers the development of Jewish settlement as a national value, and will act to encourage and promote its establishment and consolidation” (article 7) applies to the whole of the Land of Israel, even if the legal status of parts of this land is not yet agreed upon. The same, incidentally, applies to “the complete and united Jerusalem” as the capital of Israel (article 3).
The law also ignores the great rift that is occurring between the State of Israel and large sections of world Jewry against the background of the illiberal policies of Israel’s current government, and its continued discrimination of the non-Orthodox Jewish streams, and continues to speak of the ties between Israel and the Jews in the Diaspora in the old patriarchal terms of caring for their security, and preserving “the cultural, historical and religious heritage of the Jewish people among Diaspora Jews” (article 6).
I am not saying that many of the aspirations mentioned in the law are not worthy aspirations. It is just that the way to realize these aspirations is not by means of a vaguely worded Basic Law that got through by a narrow majority, but rather by means of policies that will increase the chance of their being supported by the world community and world Jewry, including an honest effort to reach a comprehensive or partial solution to the various components of the Palestinian-Israeli conflict, and sincere efforts to turn the State of Israel, within recognized borders, into a state in which its Arab citizens, and every Jew around the world, feel welcome and at home.
Beyond the fundamental problems of this law, there are also some specific problems which Ohana’s committee was either unable or unwilling to resolve satisfactorily. For example, the original bill submitted by Foreign Affairs and Defense Committee chairman Avi Dichter on the Nation-State Law in the 18th Knesset (when he was an MK for Kadima), included an article saying “the State of Israel has a democratic regime.”
In the bill that he submitted during the current Knesset (as a member of the Likud), another article was included, stating that: “The goal of this Basic Law is to defend the status of Israel as the nation-state of the Jewish people, in order to ground the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles that appear in the proclamation on the establishment of the State of Israel, in a basic law.”
IN THE FINAL version of the law the word “democracy” is gone. True, the word democracy does not appear in the Proclamation of Independence, but it includes quite a few of the fundamental principles of democracy in the sentence that states that “the State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex,” which are totally absent from the newly-passed law.
The new law also downgrades the status of the Arab language from an official language to a language with special status, even though it includes a clause that states that “nothing said in this article can harm the status that was given to Arabic before this Basic Law enters into force” (article 4) – an oxymoron.
Nevertheless, the Ohana Committee should be given credit for the fact that it managed to soften or delete from the bill some of its more objectionable articles, such as the one that mentions the “Jewish (Hebrew) Law” as one of the sources on which courts of law should base their judgments (thank heavens for the fact that Ohana is gay, and rejects what the said law has to say about gays). The committee also did away with a clause that would have implicitly permitted Jewish settlements to exclude Arabs from joining them without breaking the law.
Only several months ago, the assumption was that the bill would be put on hold in Ohana’s committee until the 20th Knesset ended its term, because it would be difficult to sort out various unresolved issues beforehand. However, Prime Minister Benjamin Netanyahu apparently changed his mind, deciding to add this Basic Law as a feather in his cap towards the approaching elections.
Nevertheless, though the new Basic Law is now part and parcel of the Israeli law book, this is not necessarily the end of the story.
Article 11 states that the Law can be changed by means of an alternative Basic Law, adopted by a majority of MKs. As long as Israel remains a democracy, the possibility exists that someday in the future there will be a majority in the Knesset that will seek to amend, replace or abolish this awful law. Sooner or later that day will come.