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In first, High Court mulls voiding quasi-constitutional nationality law

Stoking political storm, Knesset speaker insists in letter to justices that he considers any judicial decision against the 2018 Basic Law ‘invalid’

Supreme Court President Esther Hayut and justices arrive to hear petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem on December 22, 2020. (Yonatan Sindel/Flash90)
Supreme Court President Esther Hayut and justices arrive to hear petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem on December 22, 2020. (Yonatan Sindel/Flash90)

The High Court heard a landmark challenge on Tuesday to a controversial 2018 law that defines Israel as the nation-state of the Jewish people.

Proponents of the law have argued that the legislation merely enshrines existing reality. “This is a fundamental law, which safeguards Israel as the nation-state of the Jewish people,” Likud MK Avi Dichter, who sponsored the law, told reporters from the Arabic-language Hala TV outside the courtroom.

But critics have argued that the so-called Nation-State Law contravenes the basis of Israel’s legal system, as well as its Declaration of Independence, and solidifies inequality among its citizens.

“The Nation-State Law anchors Jewish supremacy and entrenches discrimination against Arab citizens. Its place is in the trash heap of history with the apartheid laws of South Africa,” MK Yousef Jabareen said in a statement on Tuesday morning.

The court’s decision even to hold a hearing on the law has ended up being nearly as contentious as the legislation itself.

The Nation-State Law is a Basic Law, which gives it quasi-constitutional status in the Israeli legal system; no such law has ever been struck down. The Israeli criminal justice system has long been a target for right-wing politicians who allege that the courts are seeking to impose their worldview through judicial activism.

“The High Court has no authority to judge the authority of Basic Laws, as Basic Laws enacted by the Knesset are the supreme law of the land,” said Prime Minister Benjamin Netanyahu in a statement.

In a rare move, Knesset Speaker MK Yariv Levin (Likud) warned the High Court in a written letter that if the justices were to strike down the law, he would consider the court’s decision illegitimate.

“Any decision that would violate the Basic Laws that were passed in the Knesset is a decision made without authority, and is thus invalid,” Levin said in a letter addressed to Chief Justice Esther Hayut.

“In discussing this law, there is an attempt to crown the worldview of the High Court’s judges as if they were lords of the land,” Levin concluded.

Knesset Speaker Yariv Levin nullifies vote calling for inquiry into submarine affair, October 21, 2020 (Shmulik Grossman/Knesset)

Levin’s statements immediately drew fire from the Likud’s political opponents, who called it a threat to democracy and the rule of law.

“The threats of Yariv Lavin and Netanyahu against the courts are threats to democracy and seek to dismantle the separation of powers,” Blue and White party leader Benny Gantz said in a tweet.

“The difference between a stance against the High Court’s intervention to cancel the Nation-State Law and the announcement by Knesset head Yariv Levin is the difference between a legitimate discussion and the destruction of the basis of Israeli democracy,” said former Justice Minister Tzipi Livni.

Attorney General Avichai Mandelblit has also voiced opposition to the High Court’s decision to even hear the case, albeit in far less caustic terms than Levin. Mandelblit has said that he supports the Nation-State Law.

“The position of the attorney general is that the petitioners have not articulated a factual and legal basis that can ground the unprecedented intervention of striking down a Basic Law,” Mandelblit’s office said in a statement in early December.

Around 20 protesters affiliated with the right-wing Im Tirzu movement stood outside the High Court on Tuesday morning, waving signs and yelling anti-court slogans through a loudspeaker.

“We elected Netanyahu, not Hayut,” called out one, referring to the right-wing prime minister and the High Court’s chief justice.

The 15 petitions were heard by a panel of 11 justices, the largest configuration the court allows. Most of the petitions sought to strike down the law in its entirety, while others only sought to expunge a few, specific clauses.

Many of the petitioners chose to give long speeches focusing on the damage they alleged was done to Arab citizens by the law. Clause 7, which enshrines “Jewish settlement” as a value, was cited as a particular source of criticism.

Chief Justice Esther Hayut, hearing petitions against the position of alternate prime minister at the Supreme Court in Jerusalem, on October 27, 2020. (Yonatan Sindel/Flash90)

Attorney Ali Shqeib pointed to a recent decision by a district judge in northern Israel to reject a petition by Arab Israelis in largely Jewish Carmiel asking for compensation from the municipality for transporting their children to Arabic-language schools outside the city. The judge cited the Nation-State Law’s declaration that Jewish settlement was a “national value” in his decision, which he said would help preserve “the Jewish character” of the city.

Hayut, however, responded by saying that just because Arab settlement was not mentioned in the Nation-State Law’s clause did not imply that it was being singled out for discrimination.

Relatively few arguments were presented, however, as to the law’s justiciability — whether the High Court could strike it down. Some attorneys pointed to possible contradictions between the Nation-State Law and earlier laws such as the Basic Law on Human Dignity and Freedom, saying that such tensions rendered the legislation unconstitutional.

“The legislative branch has bound itself not to violate this law,” said attorney Rafik Halabi, referring to the Basic Law on Human Dignity and Freedom.

The justices, however, were skeptical that such a doctrine of “weighing” Basic Laws against one another existed in established Israeli law.

“How does one, formally speaking, determine that one constitutional duty is stronger than another?” Justice Menachem Mazuz asked skeptically.

The justices continually called the discussion back to what they saw as the fundamental legal question: Is there sufficient legal justification for the High Court to strike down a Basic Law?

“You have to bring some kind of acceptable legal claim. Canceling a Basic Law would be unprecedented,” Hayut told one lawyer.

“The High Court does not tell the Knesset how and what to legislate. If there is a regular law that is unconstitutional, we can strike it down. But our fundamental understanding is that we do not write the laws,” said Justice Uzi Vogelman.

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