Nationality Law: The High Court stated that Judaism and democracy can exist side by side

T. Belman. The author is an attorney who previously wrote for Haaretz. Nevertheless he does a good job in describing the HC ruling on the Nationality Law. This is a Google translation of the Hebrew article. I found the article by first getting Google  to translate what I wanted to search for and then I put their Hebrew translation into the Google search.

According to him, the HC  is acknowledging there is no “equality” in the Nation State Law,  “but trust us that this equality exists in our ruling and we will already apply it.”

Two major problems were faced by the High Court of Justice,  how to overcome the lack of equality in the law and how to deal with the controversial authority to interfere with the Basic Law. The High Court bypassed both when it decided yesterday that both supremacy and inequality can exist side by side

By Moshe Gorli, CALCALIST 7.9.21

The Nationality Law, like the Citizenship Law that is currently being tossed between the coalition and the opposition, are laws designed to guarantee and declare the supremacy of the Jew in the State of Israel. as well as his safety and status. Yesterday, by a majority of ten judges against a minority opinion of Judge George Kara, the Supreme Court ruled that the Basic Law should not be repealed: Israel – the nation state of the Jewish people.

 15 petitions were filed against the law , in which the court was asked to determine that due to the content of its provisions, it does not deserve to be part of the country’s future constitution. Basic laws are, as we know, chapters in the emerging constitution of the country. Two major problems were faced by the High Court of Justice: first, how to overcome the lack of equality in the law, and second, how to deal with the disputed authority to intervene in a fundamental law. A fundamental-value difficulty alongside an institutional difficulty of authority or lack of authority. The institutional difficulty was postponed to another opportunity and the problem “handled” without requiring the question of authority at this time.

On the value side of equality, it is claimed that the law establishes Jewish supremacy. Especially on the issues of preference for settlement and the Hebrew language, and of course on the side of the declaration that defines the State of Israel as the nation state of the Jewish people. This side was “ironed out” by the High Court of Justice by means of the square of the circle: both superiority and inequality can exist side by side. Just as the identity of the State of Israel between its two components – the Jewish and the democratic – can live in harmony with each other.

The court ruled that the bridge connecting the two is the “sustaining interpretation”, meaning the interpretive principles and rules in the Israeli legal system that, on the one hand, establish the right to national self-determination and, on the other hand, do not negate personal rights or cultural rights recognized at the sub-state level. And so, for example, Section 4 of the Basic Law enshrines the fact that the Hebrew language is the main language of the state, but without detracting from the status of the Arabic language.

But it is natural that the Arab judge in the composition George Kara will object. Unlike Mansour Abbas who voted in favor of the citizenship law, it is difficult for him to “trade” the basic principles of his identity. Therefore, according to his approach, he stated that some of the provisions of the Nationality Law negate the core of the democratic identity of the country and therefore should be abolished. For him, the nationality law’s disregard for the very existence of the indigenous minority, the citizens of the state, the Arabs and the Druze, and the absence of the values ??of equality and democracy, all against the background of the lack of equality that exists in practice towards the Arab minority – amplifies the violation of the principle of equality, which has not received an explicit or reinforced constitutional anchoring.

Kara reminds us that the value of equality has not only disappeared from the nationality law but has been banished from all basic laws, including of course human dignity and freedom. The reason is simple. In the political trade in the Knesset, in order to buy the support of the ultra-orthodox and religious parties in the fundamental law: human dignity and freedom, equality and freedom of expression were omitted. Freedom of expression because of the religious fear of empowering missionary expressions and abominable publications. Equality, because of the fear of strengthening equality for populations that the religious and ultra-orthodox see as a danger: Gentiles, homosexuals, women and especially reformers.

Therefore, freedom of expression and equality owe their existence to the Supreme Court, which brought in through the window these values that were expelled from the main door, as Dr. Hillel Somer successfully defined. And the ongoing ruling on these issues is the infrastructure that today allows the judges to declare a “sustaining interpretation” that is able to fill the holes and the deficiencies in the nationality law. It is the one that allows their system the constitutional harmony between all the basic laws.

The nationality law was enacted by the political right in Israel in order to balance the basic law: human dignity and freedom, which the Supreme Court has turned into the main lever for introducing liberal and humane values ??into Israeli law. If you will, to introduce global and universal values. That is, to prefer democracy over Judaism. The Nationality Law therefore seeks to return the crown to its former glory, and to equip the Supreme Court with tools for interpretive balance, which will restore “Jewishness” to the degree of supremacy that democracy took from it.<

On the other hand, in this process there is an additional coercion and strengthening of the compromise imposed in 1992, when “human dignity and freedom” was enacted. So the value of “equality” was subtracted from it, and in the nationality law it again refuses to appear. The political and religious right in Israel seems to be slamming the Supreme Court: you ignore the fact that at the time we removed equality (and freedom of expression) from the Basic Law, so here you go again. And if you didn’t understand – there is no equality in the State of Israel.

And the Supreme Court wipes away the saliva and states that it is rain. It is true that there is no equality in the law, he says, but trust us that this equality exists in our ruling and we will already apply it. OK, the political and religious right will answer – then we will rearrange the composition of the Supreme Court and appoint conservative-Jewish-nationalist judges so that the scripture (or the lack of the scripture) will also be fulfilled in practice.