Nation State Law: Arab IDF Commander-in-Chief? Arab Prime Minister?

In his article in Yisrael Hayom, law professor Dr Shaul Sharf asks an interesting question against the background of the Knesset vote last Wednesday (July 29) rejecting a bill to amend the two-year-old Law. Sharf asks: does the existence on the books of Israel’s Nation State Law make having an Arab IDF Commander-in-Chief a good thing or a bad thing? I would like to expand that question and ask if it makes it possible to envision the situation in which we have an Arab Prime Minister. Neither of these are against any law in Israel, and both are currently equally unfathomable.

This is a long article and I hope you will bear with me to the end.

There seem to be two major groups in Israel opposed to the Nation State Law. One group has nefarious motives and the other group is made up of naive Jews and emotion-driven non-Jews who apparently do not understand the nature of legislation even though some of them are Members of Knesset and others journalists.

It is clear that the the motive behind attempts to modify the Nation State Law on the part of the first group is, ideally, to get it deleted from the law books entirely — much as they would like to wipe the entire Jewish state off the map. This group includes the Joint Arab List and their partners outside the Knesset, such as the NGO Adalah. Since the Nation State Law is a Basic Law, however, rescinding it may prove to be next to impossible. Therefore, the best they can do right now is try to have it watered down or at least to keep the Law in the headlines as part of anti-Israeli propaganda campaigns within Israel and around the world.

The second group is made up of naive do-gooders, such as Yair Lapid, and supposed innocent victims of the Law. They think they are acting from a humanitarian civil rights position. They believe the rhetoric that the Nation State Law turns the non-Jewish citizens of Israel into second-class citizens. Why? Because that is how some, such as respected Druze journalist Riad Ali, say the Law makes them feel. And hurt feelings make an impression on Jews who cannot bear the thought that something we do for ourselves might be experienced negatively by someone else. It was heartbreaking to see Ali cry on a national television news broadcast when talking about the impact of the Nation State Law on him, personally, yet I wonder if he even read the law before deciding to feel insulted. (You can read the law in translation here.)

What is going on here?

Since 2014, the Nation State Law had been working its way through the mechanics of the legislative process. Controversial from the outset, it threatened the stability of the ruling coalition in its early days. Getting a law passed involves three readings in the Knesset and sometimes endless debate and modifications in the Law Committee between readings. Sharf told me that committee meetings were many and loud but mainly away from the public eye. Then, suddenly, we woke up one morning in mid-July 2018 to find that the bill had passed its third and final reading in the Knesset and was signed into Law. All hell broke loose. And this is what led the second group to demand changes. More on that below.

The Nation State Law was passed in record time – it went through both the second and third readings during the month of July, something Sharf told me is rare. What lit a fire under the feet of supporters of the Nation State Law that made them rush it through legislation?

Could it have been related to the fact that in the month of June, the Arab party, Balad, submitted a bill declaring that Israel is essentially as much an Arab country as a Jewish one? I asked Scharf about that; he agreed that there might be something to it.

The bill proposed in opposition to the Nation State Law was called, Basic Law: A State of All its Citizens. It sought to replace the symbols of the state that are currently Jewish symbols, to change the national anthem and to deny Diaspora Jews automatic Israeli citizenship. These were issues many Arab MKs and the NGO Adulah spoke of fighting long before 2014, but the singular dedication of those working to consolidate the Nation State Law may have increased their sense of urgency and they may have hoped that debate on their bill might reduce the chances of successful passage of the Nation State Law. Ironically, however, the very fact that Balad actually proposed a bill directly challenging the existence of Israel as a Jewish state may have been the impetus that led to the passage of the law in record time.

The Knesset website reports on the unusual move in which Knesset Chairperson Yuli Edelstein disqualified the Balad bill before it was tabled in the Knesset for discussion.

Balad Party MKs submitted an appeal to the Knesset President but she upheld the decision of the Knesset Chair (October 2018). They immediately appealed to the Supreme Court, requesting that it reverse the decision and allow discussion of the bill in the Knesset. Amazingly, the court decided to dismiss the appeal (December 2018), arguing that since the Knesset had just dissolved itself in preparation for the upcoming elections, the court could only consider the matter on a theoretical basis and, therefore, it was not relevant to do so.

What would the Court have decided had they actually seriously considered the appeal? It is impossible to know. The general impression is that the Supreme Court (SC) is a leftwing activist court and consideration of what they see as infractions against Arab/Palestinian human rights outweigh consideration of the collective rights of the Jewish People. There was no law on the books until this point that impelled them to consider Jewish collective rights in counterpoint. Had there been no Nation State Law, then, the SC may have decided in favour of Balad and compelled the Knesset to debate their bill, just as they compelled the Knesset to allow anti-Israeli MKs to run for office. However, with the Nation State Law on the books, it had to be part of their deliberation. I am going to go out on a limb here and suggest that the SC judges were perhaps relieved to have had such a convenient way to get out of having to decide against Balad’s bill and in favour of Jewish state identity.

And herein, perhaps, we see the first instance of why the Nation State Law is so essential.

The Nation State Law is a basic law, meaning that it will form part of Israel’s constitution when we get around to actually putting one together. It is not enough that the Declaration of Independence establishes Israel as the Nation State of the Jewish People because the Declaration is not something courts can use when considering issues brought to them for adjudication. We need a law that protects the collective rights of our Jewish state when considering collective and individual rights of citizens, members of the minority populations here as well as Jews.

Goody-goodies and hurt feelings

To understand the basis of the attempts to amend the Nation State Law, we can look at the explanation offered in the opposition bill voted down last Wednesday (29 July 2020). It begins with the following statement [my editorializing in square brackets]:

The State of Israel is the nation state of the Jewish People [in case we were worried that the authors of this bill are like those trying to make us into a state of all its citizens]. Alongside of that, a basic law that determines the Jewish character of the state must also express its democratic character, the first of which being the value of equality — that is not directly addressed in Israel’s basic laws — that should be expressed in this basic law.

Here is where the authors of this amendment fail to understand two things: firstly, that one law need not cover all instances. This is a case of whataboutness: “Yes, we are a Jewish state, but what about being democratic?” they ask.  Well, that is covered in Basic Law: Human Dignity and Liberty, the first paragraph of which states:

Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.

And then it goes on to list all the realms of life that are governed by the principle of equality (from here I will refer to this as the Equality Law). This, then, is the second thing apparently missed by the authors of the bill seeking amendment to the Nation State Law. There IS a basic law directly expressing the subject of equality. Perhaps, they might like to propose an amendment to the Equality Law to the effect that, in spite of the fact that all Israelis have equality before the law let them not forget that it is a Jewish country. Hmmm. That does not sound very good. So why do the authors of the amendment think they need to tell us: yes. okay. It is a Jewish country, but do not forget that non-Jews live here too.

If people think that the Equality Law does not go far enough, then amendments to that law can be proposed, perhaps starting with its title. That is the relevant basic law to which such issues belong.

When hurt feelings or Jewish guilt form a basis for legislation

There is a risk when legislation is triggered by hurt feelings or a sense of guilt toward the non-Jews among us who, Heaven help them, have to compete under the Israeli flag in international sporting events and have to stand for Hatikvah. The risk is that when Israel does not behave with self-respect, we lose flexibility, among other things.

The Nation State Law promotes flexibility

You can say that the Nation State Law was founded in fear. Unfortunately, that fear was well based. For decades many of our own citizens have been pursuing paths to try to take the “Jewish” out of the Jewish state. Had we had the foresight to do so, when Israel began legislating basic laws in 1958, our leaders might have made the Nation State Law the very first one passed and the Human Dignity and Liberty Law the second.

If we want to envision the time when an Arab can be Commander-in-Chief of the IDF, as raised by Sharf, or even Prime Minister or President, such that we will be proud of that and not the least bit afraid, we need the Nation State Law. With the Jewishness of the state enshrined in a basic law, everyone, Jew and non-Jew, will be free to pursue climbing to the highest rungs of influence in our society. However, there is a caveat to that.

In order for us not to fear the Arab Israeli leader, we need to make it clear that anyone who questions the Jewishness of Israel, anyone who supports BDS against Israel, who supports acts of terror against Israelis and Jews, has no place in the Knesset or any other position of authority in the public realm. We have the law that says this. Paragraph 7A of the Basic Law: The Knesset declares that:

a. A candidates’ list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the objects or actions of the list or the actions of the person, expressly or by implication, include one of the following:

1. negation of the existence of the State of Israel as a Jewish and democratic state;
2. incitement to racism;
3. support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.

We have had instances of MKs having been disqualified by the Knesset elections committee for violations of this law. Such disqualifications were reversed by the Supreme Court in blatant disregard of this law. In fact, Balad’s presentation of their bill, Basic Law: A State of all its Citizens, should have been sufficient to disqualify each of the signators on it.

When the Knesset will be “allowed” by the courts to uphold Paragraph 7A of Basic Law: The Knesset — and with the Nation State Law and Equality Law both firmly in place — bring on the Arab candidates for Commander-in-Chief or Prime Minister! We will have nothing to fear.

It all depends upon us Jews behaving with self-respect and respecting our own laws.