The nation-state bill means, for the first time in its history, Israel’s unwritten constitution will explicitly exclude Palestinian citizens from the right to equality and collective rights
By Sawsan Zaher, Haaretz premium
May 11, 2017
The threat of the Jewish nation-state bill has been used repeatedly as the ultimate tool to deliver a clear message to Palestinian citizens of Israel that Jewish rights are superior.
The bill in its current iteration emphasizes the Jewish character of the State of Israel: that it is the home of the Jewish people; that the state’s symbols are Jewish symbols; that every Jew in the world has the right to enter Israel and acquire Israeli citizenship; and that the Arabic language will no longer be official. But, most importantly, it offers the exclusive right to self-determination in Israel to Jews only while offering to ensure Palestinian citizens only individual equal rights.
Arguably, the ideas set forth in this bill are not new but are already embodied in existing laws. Indeed, Israel’s Declaration of Independence, as well as the 1950 Law of Return, already determined the political definition of Israel as a Jewish state, clarifying citizenship rankings and ensuring Jews the ultimate superior political status. Existing Basic Laws, including the so-called “Israeli Bill of Rights,” explicitly anchor the principles of the Jewish state.
Thus, the already-existing Israeli legal regime ensures the preservation of Jewish ethnic superiority in issues relating to the core of citizenship, including rights to citizenship and issues of land ownership. Even the distribution of state budgets historically has been based on ensuring privileged allocations to Jewish citizens.
Some also argue that the bill’s demotion of the status of Arabic is the major factor harming the Palestinian citizens’ status. However, the fact is that the recognition of Arabic as an official language alongside Hebrew has never guaranteed any privileges for Palestinian citizens, either as a collective or as individuals.
When, in the early 2000s, Adalah brought a case before the Israeli Supreme Court demanding that Arabic be added to street signs in mixed cities, the court indeed ruled in favour – but not because of the official status of Arabic and not in recognition of the status of the Palestinian minority in Israel. Two justices accepted the petition: one on the basis of the right to equality between Jewish and Arab residents living in ethnically mixed cities; the other based on British Mandate law, adopted by Israel, which orders official authorities to use Arabic in public spaces. The third justice dismissed the demand, arguing that that the status of Arabic was a political concern that should be decided by the legislature, and not the judiciary. Even in 2017, Israel still does not regard or use Arabic as an official language.
Indeed, what will tangibly infringe upon Palestinian collective rights in Israel is that the right to self-determination for Jews only will be anchored in the future Israeli constitution.
The right to self-determination is an essential principle anchored in modern international law, such as in the International Covenant on Civil and Political Rights, which Israel has ratified. This principle includes the right for persons to determine their own destiny in their own country and has been a major tool employed to hasten the end of colonialism. Denying this right to Palestinian citizens will mean that constitutionally, not only will Jews have the exclusive right to obtain automatic citizenship in Israel, but Palestinian citizens will not be allowed to determine their own destiny, to own or to purchase state land, to freely choose where to live, or to unite in Israel with their Palestinian children and spouses who do not hold Israeli citizenship.
For the first time in history, Israel’s unwritten constitution will not only continue to exclude the right to equality, as is the situation now, but it will also explicitly exclude Palestinian citizens from that right. And if this bill becomes a Basic Law, it would prevail over any other regular laws and any constitutional challenge of violations would be examined in relation to it.
This would make it even more difficult for the courts to effectively intervene when necessary. This bill would not overtly cancel the rights delineated in the Basic Law: Dignity and Human Freedom, but – because the constitutional right to self-determination would be granted to Jews only – it would effectively render this right devoid of all meaning.
As noted, this is not the first attempt to bring this bill into the public and political discourse. But this particular attempt has a unique timing: it comes in parallel to another bill sponsored by Naftali Bennett’s Habayit Hayehudi party relating to the application of Israeli law in the West Bank, and just days before U.S. President Donald Trump’s visit to the region.
Even the Knesset’s preliminary confirmation of the bill on 10 May delivers an Israeli political message to Trump: any kind of political solution he might seek to broker can only be based on the exclusionary principles of a Jewish nation-state as specified in this bill. Israel’s government has set out its stand and it’s in no mood for compromise, confident there’s little chance the U.S. president will push back against it.
Sawsan Zaher is a senior lawyer at Adalah – The Legal Centre for Arab Minority Rights in Israel, and has litigated major landmark constitutional cases on behalf of Palestinians before the Israeli Supreme Court.