Basic Law: Nation and occupation in Israel – part 1

Jerusalem, Israel - February 2012: The Knesset Building. The Knesset is the legislative branch of the Israeli government

As Israel’s general elections on 9 April draw close, this two-part post by Aeyal Gross discusses two issues: (i) the critical change in Israel’s constitutional development occasioned by two recent legislative measures; and (ii) the gap between the discussion of constitutional changes in Israel and the elephant in the room—the occupation.

In March 2019 the Israeli Prime Minister responded to an Instagram story by the Israeli model and actress Rotem Sela who wrote Israel is “a state of all its citizens”. Netanyahu wrote, on his own Instagram account that Israel is not a state of all its citizens. “According to the basic nationality law we passed”, he said, “Israel is the nation state of the Jewish people – and only it”.

The Basic Law Netanyahu cited was enacted by Israel’s Parliament (the Knesset) on 19 July 2018. Its full name is Basic Law: The State of Israel as a Jewish State (henceforth: “Basic Law: The Nation”) and is the fourteenth Basic Law of the State of Israel.

Basic Law: The Nation was first suggested in 2011 by Member of the Knesset (MK) Avi Dichter and, over the years, went through several versions. For a time, it seemed that Basic Law: The Nation would remain one of those bills that never got off the ground. Several months before its enactment, however, the legislation procedure was expedited with the establishment of a joint special committee, headed by MK Amir Ohana, that focused on its enactment.

Over the years that this initiative had remained as merely a bill, Basic Law: The Nation had been a (non-identical) “twin” of a bill known as the “override clause”—an attempt to amend Basic Law: Human Dignity and Liberty by adding a clause that would enable the Knesset to enact, with certain limitations, a law violating rights protected in Basic Law: Human Dignity and Liberty without needing to pass the tests of the “limitation clause” in the Basic Law.

The current version of the override clause was apparently first proposed as a bill in 2009 by MKs Moshe Gafni and Uri Maklev. Another version, proposed in 2013 by MK Ayelet Shaked (currently the Minister of Justice), was tabled three months after the first of several rulings, dealing with asylum seekers, issued by the High Court of Justice. These rulings rescinded legislation allowing for asylum seekers’ incarceration without trial for extended periods (at the Saharonim jail) or indefinitely (at the Holot facility). Following this ruling, MK Ayelet Shaked (even before her appointment as Minister of Justice), fast-tracked the motion to enact this constitutional amendment. Her ministerial appointment in 2015 expanded the significance of this bill even further although, so far, it has neither been enacted nor promoted, most probably due to the opposition to it within the coalition itself, particularly by the Kulanu faction headed by the Minister of Finance, Moshe Kahlon.

These two initiatives, the one that matured into a Basic Law and the one that, at least so far, still lingers on as a bill, constitute a turnabout in Israel’s constitutional process. In 1950, the Knesset adopted the Harari decision whereby, instead of a single document, it would legislate a series of Basic Laws to be chapters of Israel’s future constitution. Until 1992, Basic Laws had dealt mainly with the institutional aspects of constitutional law and not with human rights. In the early 1990s, the accepted view was that two chapters were missing to complete a constitution: Basic Law: Legislation, which would regulate the status of the Basic Laws vis-à-vis ordinary legislation and the question of judicial review, and Basic Law: Human Rights, which would fill the significant vacuum in the explicit constitutional protection of human rights. After recurrent attempts to legislate a Basic Law: Human Rights failed, MK Amnon Rubinstein proposed a second-order split that would divide it into several Basic Laws representing potential chapters of a complete Human Rights Bill. Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation were a result of this move, which would eventually become known as “the constitutional revolution.”

But if the expectation had been that these two Basic Laws would be followed by other human rights laws, various circumstances, whose description exceeds the present scope, led to a political veto that precluded the continuation of this endeavour. MK Aryeh Deri, of the Shas ultra-Orthodox party, said in a Knesset debate in 1996: “Had you brought even the Ten Commandments as a Basic Law to the Constitution Committee, I’d have voted against it. I don’t believe in that. I don’t know what your hidden intentions are. I don’t know what you’re planning against us together with the Supreme Court judges.” This approach conveyed opposition to what had been viewed as an initiative expanding the power of the Supreme Court and the role of liberal values in its rulings.

Beginning in 2009, however, the enactment of Basic Laws was renewed. For the first time, a Basic Law was enacted as a “temporary provision”—Basic Law: The State Budget. (The full name is “Basic Law: The State Budget for the Years 2009 until 2016 (Special Provisions) (Temporary Provision)”). Contrary to the provision in Basic Law: The State Economy, this temporary measure determined that budgets in subsequent years would be bi-annual. This Basic Law was amended four times, mainly in order to renew it, and a new version of it was enacted in 2017(“Basic Law: The State Budget for the Years 2017 and 2018 (Special Provisions) (Temporary Provision)”). Variations of this Basic Law were challenged in the Supreme Court, but discussion of these attacks exceeds the scope of this paper.

In 2014, Basic Law: Referendum was enacted, designed to limit the government’s power to give up territories in the context of a future peace agreement. These two Basic Laws should have served as warning signs that the “progress narrative” in all that concerns Basic Laws in Israel, enacting consecutive chapters to be completed by a bill of rights had, already by 2009, ceased being relevant. To go on enacting additional Basic Laws in the realm of human rights, even if they were the Ten Commandments, was impossible, but it was possible to use them for other political goals. None of the issues this shift represents are totally novel.  Critics have claimed that existing Basic Laws on human rights, which protect property rights but not social welfare rights, did not expand protections for weakened groups in Israel but actually the opposite, a topic that cannot be explored in depth here. Moreover, Basic Laws had been used for political goals previously as well as, for example, in a Basic Law on Jerusalem enacted in 1980. Indeed, the enactment of any Basic Law, including on human rights, could quite justifiably be said to be political in the broad sense of the term.

The enactment of Basic Law: The Nation and the bill on the “override clause” should thus be viewed as part of these developments, which I view as deeper and more prominent than any previous ones. These moves can be seen as a “U-turn” in the course of the constitutional procedure that began with the Harari decision—they would not use constitutional law as a tool to expand human rights but rather the opposite. In that sense, they could be described as part of an anti-constitutional revolution.

Minister of Justice Ayelet Shaked may be the most prominent representative of this revolution’s spirit, in her pronouncements on the need to repair the gap that, in her view, had opened up between the people’s power to decide and the fact that the most significant issues of government are, since the 1992 “constitutional revolution,” settled by the HCJ. She described this as a gap between the demos and the kratos, and noted that Zionism “will not continue to bow down to the system of individual rights interpreted in a universal way.” In a campaign video released ahead of Israel’s forthcoming general elections she spritzed herself with a perfume labelled “Fascism” while whispering her policies of “judicial revolution”, “restrain of [judicial] activism”, “appointment of judges”, “governance”, “separation of powers” and “restraining the High Court of Justice” – then holding the perfume bottle and saying loudly:  “To me it smells like democracy”.

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