October 24, 2018

Opponents of Israel’s Nationality Law ought to propose their own version of it

So we are back where we were three years ago, and if you don’t remember where we were three years ago, that’s hardly your fault. Many other issues have been put forward and tabled since the latest round of Israeli debate about the so-called “Nationality Law.” Israel has survived these three years, and in some areas has even improved, without a nationality law. Still, the government wants such a law, and earlier this week its ministers greenlighted a legislative effort toward this goal.

What is a nationality law? Good question. The short answer is: a new Basic Law (basic laws are Israel’s substitute for a constitution) that legally defines Israel as a Jewish State. The long answer is: There are many versions of this proposed legislation. All of them contain, in some way, a definition of Israel as a Jewish State – but the language of each version is different, and hence the meaning of each version is different. Some strive to make it a bolder statement that makes Israel’s Jewishness a crucial legal factor. Some want declarative language on Jewishness that also makes it clear that democratic principles govern Israel’s actual practicalities.

Three questions are worth considering as we enter a debate about the legislation.

Why now?

Is it necessary?

What is the better legislative language?

Why now: The short answer is that we do not quite know. Last time Israel went through this debate, it was a pretext for new elections. So maybe the Prime Minister is just preparing for another electoral round by adding this piece to the agenda of his current coalition – an agenda item that will help him draw a contrast between those supportive of nationality legislation (him and his coalition partners) and those in opposition to the law (the “left”). For Netanyahu, this is easy campaign material: “we” are for Jewish State – “our rivals” want Israel to cease from being a Jewish State.

Is this law necessary? Three years ago, I was involved in some way in writing a recommendation against having such a law. The recommendation to the Justice Minister, authored by Prof. Ruth Gavison, stated that “Questions of vision are not legal questions, and should not be decided by law or in courts. A separate anchoring of the vision would transfer the locus of discussion about disagreements on interpretations of the vision from the public and political arenas to the courts. Against the background of Israeli reality, this process will enhance uncertainty and disagreement.”

The recommendation still stands. But opposition to it – that is, support for legislation – also stands. Proponents of the new legislation argue that against a backdrop of attempts to delegitimize Israel’s character as a Jewish State there is a need for such a declarative statement. They also believe that Israel’s High Court tends to interpret Israel’s laws in ways that undermine Israel’s Jewish character, and hence they want a specific law that will make such interpretation more difficult. As Moshe Koppel explained in an article in support of this legislation: “Why do we need this law? Broadly speaking, the law serves two purposes. The first is to provide a sort of mission statement for the state and the second is to fill a specific lacuna in Israel’s legal system.”

So you see – there is a debate. Some believe the law is indeed necessary, and some believe it isn’t necessary, even damaging. The question becomes, then, are we going to have this debate conducted with the seriousness necessary when a constitutional change is considered, or is it going to be one of those nasty and unproductive legislative battles that end up with the Knesset passing a highly controversial law by a slight and occasional majority (or maybe, quite possibly, this round, much like previous rounds, will end without having new legislation).

And what about the language of the law? Some might say that no language can make such vile legislation acceptable. And that goes back to the question of necessity. But having a pragmatic discussion means not just being in opposition to a new legislation, it also means being ready to affect this legislation if it appears to have a majority. That is, to amend it in ways that make it more acceptable even in the eyes of those in opposition to it.

What would make such legislation more acceptable to some of its opponents? Prof. Gavison made some recommendations. But it is quite clear that the coalition has no intention to follow these guidelines. Its leaders want a quick, decisive legislative move – maybe because they know that’s the only way to pass such legislation. Gavison proposed the opposite of that: “Discussions of the proposals should be conducted in a broad framework, as would befit an attempt to enact constitutional provisions. These should not be limited to the coalition or even to the Knesset factions. It should be agreed that an attempt will be made to reach a formulation that most of the sectors could accept, and that would generate a broad — even if not full — agreement. The issues should also be raised with the leadership of Jewish communities abroad. The process should be designed to garner the highest legitimacy it can have. There should be no strict deadline, indicating that this is a law of great constitutional significance.”

Does this mean Israel is doomed to pass an unnecessary and harmful legislation? I don’t think so. First – because it doesn’t yet have an agreed upon language. Not even the coalition agrees on the language. The decision by the cabinet was to greenlight the process, but it has not yet greenlighted the final wording of the legislation. This will be a matter for further discussion and debate. Maybe the result will be new legislation – and maybe it will be a debate with no end.

Moreover, this new debate over language is not just a threat, but also an opportunity. Opponents of the legislation can now make the case against the legislation – or make a case concerning the content of new legislation. It is true that many proponents of the legislation have political aims in mind as they ponder their options. It is true that some of them want the language to be stronger and even more disturbing to opponents of the legislation. Still, denouncing the intention of the authors of the new legislation to pass a nationality law is not enough. Engaging in conversation with them about the content of the legislation is essential. That is, if conversation is something that Israelis are still capable of doing. There are days I think they can, and days I am no longer certain.