Israel’s system of Basic Laws is kind of weird. There is a saying in Israel that the things that are temporary are the ones that are most permanent and that is how we ended up with Basic Laws rather than a constitution.
The Israeli Declaration of Independence stated that a formal constitution will be formulated and adopted no later than 1 October 1948 but the war that ensued the day after the declaration was made got in the way, one thing led to another and eventually we ended up with Basic Laws – constitutional laws of the State of Israel, intended to be draft chapters of a future constitution and act as a de facto constitution until that time. Basic Laws can only be changed by a supermajority vote in the Knesset (with varying requirements for different Basic Laws and sections). Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence.
The Basic Law: Human Dignity and Liberty, protecting the freedom and equal rights of Israeli enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.
While the status, importance and legitimacy of the Jewish State clearly defined in Israel’s Declaration of Independence (see Part 1), until very recently, there was no law to safeguard the rights of the State of Israel as a Jewish State. In cases of legal questions, Israeli courts could not bring into consideration the importance of protecting the future of the Jewish State because there was no law on which to base such rulings. In order to amend this imbalance, a new Basic Law was passed: Israel – The nation state of the Jewish people.
The new law sparked an uproar, mostly within the Jewish world. The question is, why? Is there something wrong with the law? In order to address these questions, we must first examine the content of the law. It is short and written in very clear language.
The following is the full content of the Basic Law:
1. The State of Israel
- Israel is the historic homeland of the Jewish people in which the State of Israel was established.
- The state of Israel is the nation-state of the Jewish people, in which it fulfills its natural, religious, and historic right to self-determination.
- The fulfillment of the right of national self-determination in the State of Israel is unique to the Jewish people.
This point defines Israel as the Nation State of the Jewish People in which the Zionist movement, the national movement of the Jewish people that supports the re-establishment of a Jewish homeland in the ancestral land of the Jews, has been fulfilled. By extension, the right of self determination as a nation within the Jewish Nation State is unique to the Jewish People.
Is there anything wrong with these statements? Are they any different from what is written in Israel’s Declaration of Independence which clearly defines Israel as the Jewish State, Jewish rights to the land as those of the indigenous people and the rights of other inhabitants as being the same individual rights as any other Israeli citizen?
2. National symbols of the State of Israel
- The name of the state is Israel.
- The flag of the state is white, two blue stripes near the edges, and a blue Star of David in the center.
- The symbol of the state is the Menorah with seven branches, olive leaves on each side, and the word Israel at the bottom.
- The national anthem of the state is “Hatikvah”
- [Further] details concerning the issue of state symbols will be determined by law.
Is there anything wrong with these statements defining that the current symbols of the Jewish State are the legal symbols of the Jewish State?
3. [The] unified and complete [city of] Jerusalem is the capital of Israel.
This a reference to and reinforcement of the Basic Law: Jerusalem, the Capital of Israel (passed in 1980) which defined the status of Jerusalem as the capital of Israel and secure its integrity and unity. It determines that Jerusalem is the seat of the President of the State, the Knesset, the Government and the Supreme Court. The law also deals with the status of the holy sites, secures the rights of people of all religions, and states that Jerusalem shall be given special priority in the activities of the authorities of the State so as to further its development in economic and other matters.
4. The Language of the State of Israel
- Hebrew is the language of the state.
- The Arabic language has a special status in the state; the regulation of the Arab language in state institutions or when facing them will be regulated by law.
- This clause does not change the status given to the Arabic language before the basic law was created.
Hebrew is the language of the Jewish State. Is there anything wrong with that?
Up until this law it was customary to make sure, particularly in official documentation and state institutions that Arabic would appear alongside Hebrew. For those who know neither language, English usually appears as well. For convenience many times there are also other languages such as Russian and Amharic. Now the law defines Arabic as having special status, particularly in regard to language in state institutions and instructs not to change (demote) what was customary before the law. This is actually an improvement in status as it makes what was customary but not mandatory, part of the law.
5. The state will be open to Jewish immigration and to the gathering of the exiled.
This is the legal version of the statement in the Declaration of Independence with almost the exact same wording: The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles. Adding this to the Basic Law is a reinforcement of Israel’s Law of Return (passed in 1950).
6. The Diaspora
- The state will labor to ensure the safety of sons of the Jewish people and its citizens who are in trouble and captivity due to their Jewishness or their citizenship.
- The state will act to preserve the cultural, historical and religious legacy of the Jewish people among the Jewish diaspora.
This clause defines the relationship of the Jewish State with the Diaspora:
The State of Israel will labor to protect anyone in trouble or in captivity due to their Jewishness or Israeli citizenship – including Jews who are not Israeli, sons of Jews (not necessarily Jewish according to Halacha) and non-Jewish citizens of Israel. This set of values and feeling of responsibility has led the decision-making process of the Jewish State from its inception to this day in regard to rescuing Jews in trouble anywhere in the world as well as paying the same regard and effort to assist all Israelis in trouble, whether they are Jewish or not.
The State will act to preserve Jewish legacy among the Jewish diaspora. This is a dramatic paradigm shift from the request in the Declaration of Independence asking diaspora Jews to assist the newly born State of Israel.
7. The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development.
This clause is the one that certain groups objected to but is it really any different from what is stated in the Declaration of Independence? Or the ideals of the Zionist movement? Or that of any newly founded nation state?
If the clause denied the right of non-Jewish settlement for Israel’s non-Jewish citizens that would certainly be problematic however that is not the case.
8. The Hebrew calendar is the official calendar of the state and alongside it the secular calendar will serve as an official calendar. The usage of the Hebrew calendar and of the secular calendar will be determined by law.
This is the current custom of the country, now made law.
9. National Holidays
- Independence Day is the official holiday of the state.
- The Memorial Day for those who fell in the wars of Israel and the Memorial Day for the Holocaust and heroism are official memorial days of the state.
This clause defines Israel’s Independence Day and Memorial Days as National holidays (as opposed to religious holidays). This has ramifications in regard to employer obligations to employees.
10. Saturday and the Jewish Holidays are the official days of rest in the state. Those who are not Jewish have the right to honor their days of rest and their holidays. Details concerning these matters will be determined by law.
Whereas the previous clause deals with national holidays, this deals with religious holidays. In continuation of what appears in Israel’s Declaration of Independence, the law determines that while the official holidays and rest day of the Jewish State are the days noted in the Jewish tradition, non-Jews have the right to honor their holidays and rest day. This can become a little complicated as Muslims, Christians (and people of other faiths) have different holidays and rest days, for example Muslims rest on Friday while Jews on Saturday and Christians on Sunday. Honoring the different holidays and rest days, including making it possible for employees to take vacations and receive full benefits, is already the custom of the land. Now it is reinforced by this law.
11. This Basic Law may not be altered except by a Basic Law that gained the approval of the majority of the Knesset members.
Like other Basic Laws, this law is harder (but not impossible) to overturn or change than regular laws.
Much has been written about Israel’s Nation State Law. Examination of the concerns raised leads one to discover that the objections are not to the actual content of the law but rather questions about what does not appear in the law:
- “Why does the basic law not mention, as the Declaration of Independence does, equality for all citizens?”
When one understands the Israeli system of Basic Laws and notes the content of the new law, this question becomes moot.
Equality for all citizens is already enshrined in previous Basic Laws, the new law does not overturn or cancel previous laws, it only provides a legal basis upon which it is possible to balance the needs and rights of individual citizens with the needs and rights of Israel as the Jewish Nation State.
In addition, the new law reinforces the rights of minorities within the framework of the Jewish State regarding language and freedom of religion (which also effects freedom of employment).
- “Why is it necessary to create this law when all these points can be understood from the Declaration of Independence?”
All the points in the law are elements lifted directly from Israel’s Declaration of Independence, however, a declaration is just that – a declaration, not a law.
Although these points are understood, it is necessary to give the court system laws on which they can base their decisions. Before this new law, there was no legal basis on which the courts could rule when questions regarding symbols of the state, holidays, language etc. arose.
- What about Israel’s non-Jewish citizens who are objecting to this law?
Israel takes the rights of her non-Jewish citizens very seriously and has done so since the establishment of the State. It is important to examine the concerns raised and address each and every one of them – with the understanding that there are different groups making different objections. Each much be addressed separately and not lumped together as if they were the same people raising the same issues. The Israeli government is in the process of doing exactly this.
Some issues are easier than others to address:
- Some object to Israel as the Jewish Nation State, refusing to recognize Israel as the ancestral homeland of the Jewish People. These are the people who demonstrated in Rabin Square with PLO flags shouting “In blood and with fire we will free Palestine.”
- Others object to the fact that the Nation State Law does not legalize the status of minority groups in Israel. While previous laws define the rights of all individuals, including minorities, there is no law defining the status of minorities as groups. This does not indicate a problem with the existing laws but does suggest that it might be necessary to pass an additional law defining the status of minorities as groups.
- Druze and Bedouin who feel that the law drives a wedge between them and the State of Israel. This is a sentiment that must be taken seriously. Those of the Arab population (such as most Druze and some Bedouin) who have chosen to ally themselves with the Jewish State are people who we do not want to alienate.
Close examination of their objections uncovers that their complaints are not really about the law itself but about what does not appear in the law. A large portion of the objectors in this group used the discussion of the law to raise issues of inequality in day-to-day life in Israel that need to be addressed in order to create a better society but do not actually have anything to do with the law or any other laws being broken, rather societal issues and some government bureaucracy that if amended would make it easier for minorities to better integrate in the general population. Others were asking for their minority status as a group to be addressed in law, which as previously stated, is not an indication of a defect in this law but that it is worth considering creating a new law for that purpose.
Israel’s Nation State law is the realization of what the founding fathers of the reborn Jewish State detailed in Israel’s Declaration of Independence – the self-determination of an indigenous people returned to sovereignty in our ancestral homeland, the realization of 2000 years of yearning for Zion and a stunning example for all other indigenous peoples around the world.
And yes, there are a lot of people who don’t like that but that’s too bad. We are Zion, home to stay.