Analysis from Israel

Ever since Israel’s nation-state law was enacted in July, one constant refrain has sounded: The law should have included a provision guaranteeing equality to all Israelis. It’s not only the law’s opponents who say this; so do many of its supporters, liberals and conservatives alike. But they are wrong.

Adding a provision about equality to the nation-state law sounds innocuous because civic and political equality is already implicitly guaranteed through the 1992 Basic Law: Human Dignity and Liberty. Basic Laws are Israel’s closest approximation to constitutional legislation, and the 1992 law, which protects the “dignity of any person as such,” has been consistently interpreted by the courts as enshrining equality on the grounds that discrimination violates a person’s dignity. So what harm could it do to offer an explicit guarantee in the Basic Law: Israel as the Nation-State of the Jewish People?

The answer is that doing so would elevate Israel’s democratic character above its Jewish one. And that would negate the entire purpose of the nation-state law, which was to restore Israel’s Jewish character to parity with its democratic one—not superiority, but merely parity.

To understand why this is so, it’s first necessary to understand why adding an equality provision would violate basic constitutional logic. This argument was cogently made from the liberal side of the political spectrum by Haim Ramon, a former senior Labor Party Knesset member and former justice minister. Writing in Haaretz’s Hebrew edition last month, Ramon argued that if anyone thinks equality isn’t sufficiently protected by the Basic Law: Human Dignity and Liberty, they should work to amend that law rather than the nation-state law, as the former is where any provision on equality belongs.

This isn’t mere semantic quibbling. A constitution, being a country’s supreme instrument of governance, isn’t supposed to be a jumble of random provisions thrown together with no more thought than a monkey sitting at a keyboard might provide; it’s supposed to be a carefully crafted document. That’s why constitutions typically group all provisions relating to a given topic into a single article or chapter. Each article has equal status; none is more or less important than the others. And together, they create a comprehensive document that addresses all the basic questions of governance.

Israel has largely followed this logic to date. It doesn’t have a finished constitution, but every Basic Law is considered to be one article of a future constitution. So Israel has, inter alia, a Basic Law on the legislature, one on the executive, one on the judiciary, one on basic human rights, and now, one on Israel’s Jewish character: the nation-state law. And just as details of how to choose the prime minister belong in the article on the executive rather than the article on the judiciary, so, too, provisions on universal human rights, like equality, belong in the article on human rights, not the one on Israel’s particularistic Jewish character.

But precisely because this is the normal constitutional procedure, any glaring deviation from this norm would have moral and legal significance. So what would it tell us if, contrary to all constitutional logic, a provision on equality—something already implicitly guaranteed in an earlier article of Israel’s constitution-to-be—were to be explicitly restated in a subsequent article dealing with Israel’s Jewish character?

It would tell us that Israel’s universalist democratic character trumps its Jewish character. That would be the natural implication of equality being the only principle deemed worthy of being stated not once, but twice—not just in the article where it naturally belongs, but also in an article dealing with a completely unrelated topic. That would also be the natural implication of Israel’s Jewish character being the only constitutional issue deemed unworthy of a Basic Law entirely to itself, the only one forced to share its Basic Law with material that properly belongs, and in fact already exists, in a different one. Indeed, the implication would be that Israel’s Jewish character is so illegitimate that it can be allowed in the constitution at all only if its legal significance is diluted by adding a restatement of Israel’s universalist character.

In short, the clear message of adding “equality” to the nation-state law would be that Israel’s Jewish and democratic identities aren’t equal; rather, its democratic identity has primacy and its Jewish identity is subordinate. That’s exactly the situation that existed prior to the nation-state law’s enactment, when Israel had several Basic Laws setting out its democratic character but none at all setting out its Jewish character. And that’s the very situation the nation-state law was meant to correct.

Nothing in the nation-state law gives Israel’s Jewish identity priority over its democratic one; the law was intended merely to put these dual identities back on an equal footing. Adding “equality” to it would thus be antithetical to its purpose.

In one sense, this entire discussion is moot. As Ramon noted, an explicit mention of equality was omitted from the Human Dignity and Liberty law due to haredi opposition, and almost certainly couldn’t be enacted today for the same reason, regardless of whether it were proposed for that law or the nation-state law.

But the broader issue of parity between Israel’s Jewish and democratic identities isn’t moot at all. It’s an ongoing battle, and a crucial one.

The vast majority of Israelis wants Israel to be both Jewish and democratic, and a plurality believes that these two elements should be equally balanced. But being a democracy isn’t Israel’s raison d’être; there are plenty of other democracies around. There would be no reason to have made the effort of establishing and sustaining Israel in the teeth of regional and, often, international hostility in order to have just one more democracy, indistinguishable from all the others.

Israel’s raison d’être is that it’s the world’s only Jewish state—the only place in the world where the Jewish people can determine their own fate. That’s what makes it worth having. Thus a Basic Law that contradicts this raison d’être by subordinating its Jewish character to its democratic one is something no one who values Israel should want in its constitution.

This article was originally syndicated by JNS.org (www.jns.org) on September 12, 2018. © 2018 JNS.org

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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