The Knesset’s Constitution, Law and Justice Committee began a series of debates this week on enshrining of equality in Israel’s Basic Laws, which serve as the equivalent of a constitution.
One should commend the committee’s chairman, Labor’s Gilad Kariv, for his initiative in continuing the task of formulating Israel’s constitution. The current issue is an attempt to rectify a shameful situation whereby, 73 years after the state’s establishment, there is still no Basic Law that guarantees the obvious: In a democracy, everyone is equal before the law. There is no discrimination between people. These are elementary words which appear in every constitution around the world as a cornerstone of democracy.
Israel’s Basic Laws lack this bare minimum, and each initiative to legislate it unleashes shameful debates where lawmakers vote for or against equality. In each of these debates, the minutes record participants saying things such as “Obviously, all citizens are equal, but…” followed by a long list of empty excuses, as if there were a logical reason why Israel should not have full civic equality, as promised by the Declaration of Independence. In reality, opponents of such a clause support claims made by Israel’s adversaries, whereby a Jewish state, by definition, cannot be democratic or egalitarian, even though equality is a Jewish and Zionist value deriving from the history of Jews as a persecuted minority.
There is a good reason to address this now: the 2018 nation-state law. Equality was already absent from the web of Basic Laws, and the passage of the nation-state law made its absence all the more apparent. The Supreme Court softened the impact when it ruled that a balance must be struck between the nation-state law and the Basic Law on Human Dignity and Liberty. The court had previously ruled that the latter encompasses the right to equality. However, the court did not completely negate the nation-state law’s impact.
A constitution is not just a matter for the courts. A constitution carries a pedagogical lesson that speaks to the nature of a country. The exclusionary message that arises from the nation-state law, according to which the state “belongs” exclusively to its Jewish citizens, is that their citizenship is worth more than that of Arabs. It is a destructive message in a democratic country. Thus, anyone who believes that Israel is the nation-state of the Jewish nation, as I do, must insist on an explicit commitment to equality of all citizens.
That’s how it works in every nation-state. Even in nations that are not suspected of being overtly liberal (Hungary or Croatia, say), there is a constitution which, alongside a definition of the country as a nation-state, explicitly declares that it is the state of all its people. There are also clauses declaring absolute equality before the law.
In contrast to the intimidation sounded in debates like the ones held last week, there is no contradiction between the Law of Return and civic equality. The Law of Return does not grant rights to Israeli citizens, but to foreign ones. As has been repeatedly argued in Supreme Court rulings, including one by former Supreme Court President Aharon Barak, it does not contradict the basic values of this country. In fact, it reifies it as a Jewish and democratic country. Given the passage of the nation-state law, no one could argue that a law enshrining equality would imperil this principle.
Anchoring the right to equality in a Basic Law could be achieved through the legislation of a separate Basic Law or through an amendment to the Basic Law of Human Dignity and Liberty. But that is not enough. The underlying concept of equality should be enshrined in a broader Basic Law that defines Israel as a democratic state: Namely, an egalitarian one that respects the rights of minorities, rule of law, separation of government powers and a system of checks and balances. At that point, one could say that this country’s constitution stands on its own two feet. It would restore balance to the dual definition of “Jewish and democratic,” a balance that was disrupted by the nation-state law.
Dr. Fuchs is a senior researcher at the Israel Democracy Institute.