Part II of the Defining Israel Forum
An Introduction to Israel’s Nation-State Bills
Simon Rabinovitch
Part II of Marginalia’s forum Defining Israel provides complete translations of all of the proposed basic laws attempting to legally clarify what it means for Israel to be a Jewish and democratic state. These are the so-called nationality laws, or nation-state bills. The laws and their stipulations are short, and written in, for the most part, clear language. Each also contains Explanatory Notes that attempt to articulate the given bill’s motivation and significance. The idea behind Part II is to allow the public to read the bills as they are, clean and free of commentary. For that reason, the following introduction is intended only to orient readers to the genealogy of the bills — their history and chronology — and, as much as possible, sticks to the known facts without delving into interpretation (the domain of Part III).
The story begins with the passage of an earlier basic law, when on March 25, 1992, Prime Minister Yitzhak Shamir, President Chaim Herzog, and Knesset Speaker Dov Shilansky signed Israel’s Basic Law: Human Dignity and Liberty. The purpose, according to its first line, “is to protect human dignity and liberty, in order to establish in a basic law the values of the State of Israel as a Jewish and democratic state.” Despite the centrality of Israel’s values as a Jewish and democratic state to this law’s purpose, its stipulations dealt solely with various aspects of Israel’s individual citizens’ rights to protection of their “life, body and dignity.” Furthermore, the subsequent Knesset, under Prime Minister Yitzhak Rabin, amended this basic law in a way that dramatically shifted the locus of the state’s values as expressed in the law. As of March 10, 1994, the Basic Law: Human Dignity and Liberty, now begins with Section 1:
Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
This new preamble emphasizes instead the centrality of individual freedom to the values of the state, but by invoking the spirit of Israel’s founding Declaration circles back to the fact that the state is the “Jewish state,” a fact impossible to ignore as the Declaration repeatedly refers to the new state as such. The government passed this amendment at the same time as it annulled and replaced the 1992 Basic Law: Freedom of Occupation with a new law. The new version of this law included the same preamble as that amended to the Basic Law: Human Dignity and Liberty, and therefore after the 1994 amendment both laws made reference to “the values of the State of Israel as a Jewish and democratic state.”
Aharon Barak, who was at that time President of Israel’s Supreme Court, considered the new basic laws on Human Dignity and Liberty and Freedom of Occupation to be a “constitutional revolution.” Barak argued in 1992 that the new basic laws elevated the legal force of all 11 basic laws over all other laws, and in particular, due to the new laws, “human rights in Israel have become legal norms of preferred constitutional states much like the situation in the United States, Canada and many other countries.” Barak further argued that because the new basic laws claimed as their purpose to entrench the values of the State of Israel as a Jewish and democratic state, the Supreme Court would now have to ask, “What is a Jewish state, and what is a democratic state?” when determining the validity or invalidity of Knesset laws. Many critics responded that on the one hand, while Barak’s articulation of the state’s democratic values were very detailed and potent, on the other hand, his understanding of Jewish values was so abstract as to be, in essence, equivalent to the contributions of Judaism to democracy. Consequently, some lawmakers, long unhappy about what they saw as judicial activism in the Supreme Court, sought a basic law that would instead force the justices to take the state’s Jewish character into greater consideration when making legal decisions. One solution, proposed in 2010 by Yariv Levin (Likud) and David Rotem (Yisrael Beiteinu) would have amended the basic laws that use the term “Jewish and democratic,” to replace that phrase with the words “a Jewish state with a democratic form of government.” In addition, the 1992-1994 basic laws generated a number of attempts to enact a full constitution in Israel, including a preamble that would further anchor both its character as “Jewish and democratic” and clarify the legal relationship between the Knesset and the courts. In addition to proposals made by the 16th Knesset’s Law and Constitution Committee in 2006, potential constitutions were drafted by think tanks and non-governmental organizations such as the Israel Democracy Institute (2005), the Institute for Zionist Strategy (2006), and Adalah: The Legal Center for Arab Minority Rights in Israel (2007). Nonetheless, all these attempts, reflecting different ideological attitudes to these questions, have failed.
Against this background, some proposed to create a basic law that would focus on the Jewish component in Israel’s vision. Efforts to pass a basic law defining the state’s character began in 2011 with a proposal (P/18/3541) by Avraham (Avi) Dichter of the Kadima Party and ultimately signed by 36 other members of Knesset. But in fact, the impetus may have begun in 2006 when the National Committee for the Heads of the Arab Local Authorities in Israel published a working paper called The Future Vision of the Palestinian Arabs in Israel, which called for, among other things, Arab collective national rights, on the principle that civil equality between Jews and Arabs would not be achieved without recognition of Arab rights to cultural and political autonomy. This began an engagement by Arab civil society groups on the question of what civil and national rights the Arab minority should demand from the state, as well as the broader question of what the character of the State of Israel should be. Dichter’s first nation-state law, in 2011, was the product of a long process of response to those initiatives led in particular by a Jerusalem think tank called the Institute for Zionist Strategies. Thus in its definition of Israel as a Jewish state the law explicitly and singularly limits the right of national self-determination in Israel to the Jewish people (P/18/3541, 1b). In its second clause, which addresses Israel as a democratic state, the law stipulates that Israel’s form of government, or “regime,” is democratic, without further expansion on the meaning of democracy to the state or its values. Of the subsequent principles detailed in the law, those dealing with the status of Hebrew and Arabic and the role of Jewish law in the Knesset and the courts proved to be the most controversial and most discussed. Another scrutinized clause took particular aim at a Supreme Court ruling from 2000 which forced a Jewish cooperative community to sell a plot of land to an Arab family (the Ka’adan ruling), effectively barring closed communities. The new basic law proposed by Dichter sought to overturn this decision, stipulating, “The State may allow a community that includes followers of a single religion or members of a single nation to establish a communal settlement.” Tzipi Livni, then chairperson of the Kadima Party, pressured Dichter to shelve the bill because of her concern that it threatened to cause divisions within Israeli society and upset the balance between the state’s Jewish and democratic characters.
Elections in January 2013 led to the formation of the current, 19th Knesset. In forming the government, the Likud-Beiteinu (a joint slate created for the 19th Knesset elections) and Ha’bayit Ha’yehudi (the Jewish Home party) included in their coalition agreement a commitment to advance a Jewish nation-state basic law. Two competing bills were put forward in July of that year. Three member of the governing coalition — Ayelet Shaked (Ha’bayit Ha’yehudi), Yariv Levin (Likud), and Robert Ilatov (Yisrael Beiteinu) — put forward a bill similar to that of Dichter’s in 2011 (and with the same title) but without mention of the status of languages or the right of communities to live separately, and with a new definition of the law’s purpose: “to define the identity of the State of Israel as the nation state of the Jewish people in order to anchor these values in a basic law, in the spirit of the principles in the Declaration of the Establishment of the State of Israel.” The so-called Shaked bill also provided some explanation of what a democratic regime means, by adding a further clause declaring that Israel’s foundations should be based on “freedom, justice, and peace as envisioned by the Prophets of Israel, and committed to the individual rights of all its citizens as detailed by all basic laws.” It is worth noting that the term used in Hebrew for individual rights — zkhuyoteyhem ha’ishiyut — could also be translated as personal rights, and is not a commonly used term. By stating that the state is committed to the rights of all citizens on a personal or individual level, the law would also relegate to the sub-constitutional level any obligation to recognize the collective rights of citizens who are not Jewish.
At the same time, Ruth Calderon (Yesh Atid) and eight other Members of Knesset drafted an alternative bill, submitted on the same day (July 22, 2013), entitled Basic Law Proposal: The Israeli Declaration of Independence and the Jewish and Democratic State (P/19/1539). Not including its clauses on stability and immutability, this law has only one item, its purpose: “This Basic Law aims to secure and protect the values of the State of Israel as a Jewish and democratic state by giving the force of law to the basic principles stated in the Declaration of Independence, which is annexed verbatim to this law.” The law thus assumes that the Declaration of Independence sufficiently articulates the essence of the state’s democratic and Jewish values, and therefore seeks to give legal standing to the declaration (also known as the Independence Scroll), something debated in the past but not enacted. As explained by the law’s authors in the Explanatory Notes (which do not have the force of law), the Declaration of Independence expresses “the will and intention to establish a country which has a Jewish character on the one hand and is committed to equality on the other.” The law’s authors also explicitly declare, “that the notion of a Jewish state does not refer to Judaism as a religion, but rather to the cultural character of the nation state as the home of the Jewish people.” The two separate bills marked the failure of Levin, Shaked, and Calderon to work together to create a compromise bill, but the two camps’ perspective on where emphasis in the state’s values should be made — Jewish and democratic — and a disagreement about whether to include a commitment to equality in the text itself, proved to be too hard to surmount. Livni, as Justice Minister in the 19th Knesset (now with the party Ha’tnua), declined to move either bill forward, citing again the risk of upsetting the delicate balance of the state’s values and legal culture. In August 2013, Livni asked Professor Ruth Gavison to formulate a proposal for a constitutional provision that would balance and integrate the Jewish and democratic values in its definition of the state’s character (see Part I).
In May 2013, just before Independence Day and after the collapse of peace talks with the Palestinians, the Prime Minister declared his intention to advance legislation on a nation-state bill. Soon after, Ze’ev Elkin revived the bill he drafted with Dichter and submitted it to the Knesset (P/19/2502). In June, Miri Regev revived the Shaked bill and put it forward once again (P/19/2530). Yet the conflict in Gaza that lasted through much of the summer froze debates about nationality bills until the fall, when Elkin, Shaked, and others renewed their push for a basic law declaring Israel as the nation state of the Jewish people, without waiting for the Gavison process initiated by Justice Minister Livni to run its course and be fully discussed by the government and the public. It is in this context that Gavison submitted her recommendations to the Minister of Justice on November 19. The Prime Minister presented his own statement of principles for drafting a new law at a cabinet meeting on November 23, 2014 (also included below: see Announcement of the Cabinet Secretary at the end of the Cabinet Meeting), prompting an angry response from Justice Minister Tzipi Livni and Finance Minister Yair Lapid (Yesh Atid), both of whom refused to give preliminary reading support to the Elkin bill. By a vote of 14-6 the cabinet agreed that the Prime Minister’s 14 principles would form the basis for a bill that would subsume, in other words replace, the previous bills presented by Shaked and Levin (though those two bills would be put forward by the cabinet at that time). The idea was for a government sponsored bill to be written under the supervision of Attorney General Yehudah Weinstein, and brought to the Knesset for a preliminary reading at some point in December. Alternatives again quickly emerged. Five members of Livni’s Ha’tnua party quickly drafted and submitted their own law (P/19/2883) the next day, on November 24, which, in addition to proclaiming Israel as the nation state of the Jewish people, describes the state’s democratic principles as founded on “freedom, justice, and peace and providing equality to all its citizens, as stated in the Declaration of the Establishment of the State.” Labor Member of Knesset Hilik Bar also revived the idea of constitutionally anchoring the Declaration of Independence, but in his bill compared to Calderon’s, he repeatedly used the term “equality” in order to make clear its purpose in ensuring the protection of all of the state’s citizens. Instead, as the conflicts between the Prime Minister and his coalition partners over the bills and other matters involving the budget came to a head, he dismissed the justice and finance ministers from their posts, thus ushering in the elections for the 20th Knesset, to be held on March 17. Below you will find translations of each of the bills mentioned above, beginning with Avraham Dichter’s 2011 Basic Law Proposal: Israel is the Nation State of the Jewish People. The original Hebrew versions can be found on the Knesset website, Knesset.gov.il, and other resources collated by Professor Gavison can be found on the following page of the Ministry of Justice’s website.
The following bills have been translated by Ekaterina Anderson and edited by Simon Rabinovitch, with additional assistance by Rivka Brot and Gil Rubin. Translation suggestions and disagreements can be sent directly to me at simon.rabinovitch@themarginaliareview.com. Special thanks to Ruth Gavison for her clarifications and assistance with the introduction.
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Knesset under Construction
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The 18th Knesset
Initiators: Members of Knesset
Avraham Dichter
Ze’ev Elkin
David Rotem
Einat Wilf
Haim Katz
Roni Bar-On
Shaul Mofaz
Ruhama Avraham-Balila
Ze’ev Bielsky
Yoel Hasson
Gideon Ezra
Arie Bibi
Nahman Shay
Moshe (Motz) Matalon
Otniel Schneller
Marina Solodkin
Uri Orbach
Zevulun Orlev
Hamad Amar
Robert Ilatov
Eli Aflalo
Zion Finian
Julia Shmuelov-Berkovic
Orli Levi-Abuksis
Arie Eldad
Ofir Akunis
Ronit Tirosh
Carmel Shama
Miri Regev
Anastasia Michaeli
Tzipi Hotovely
Israel Hasson
Shay Hermesh
Yaacov Edri
Meir Shetrit
Uri Ariel
Yariv Levine
P/18/3541
Basic Law Proposal: Israel is the Nation State of the Jewish People
Jewish State
(a) The State of Israel is the national home of the Jewish people, in which they realize their aspiration to self-determination in accordance with their cultural and historical heritage.
(b) The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people.
(c) The provisions of this basic law or any other legislation shall be interpreted in light of what is determined in this paragraph.
Democratic State
The State of Israel has a democratic regime.
State Symbols
(a) The state anthem is Hatikvah.
(b) The state flag is white with two blue stripes near the edges and a blue Star of David in the center.
(c) The state emblem is a seven-branched menorah with olive leaves on both sides and the word “Israel” beneath it.
Language
(a) Hebrew is the official state language.
(b) The Arabic language has a special status, and its speakers have the right to access state services in their native language, as will be determined by the law.
Return
Every Jew has the right to immigrate to Israel and acquire citizenship of the State of Israel in accordance with the law.
Ingathering of the Exiles and Jewish Settlement
The State shall act to gather the exiles of Israel and to promote Jewish settlement on its territory and it shall allocate resources for these purposes.
The Connection to the Jewish People in the Diaspora
(a) The State shall act to strengthen the connection between Israel and Jewish communities in the Diaspora.
(b) The State shall stretch out a hand to members of the Jewish people in trouble or in captivity due to the fact of their Jewishness.
Jewish Heritage
(a) The State shall act to preserve the cultural and historical heritage of the Jewish people and to cultivate it in Israel and the Diaspora.
(b) In all educational institutions serving the Jewish public in Israel, the history, heritage, and traditions of the Jewish people shall be taught.
The Right to Heritage Preservation
(a) All residents of Israel, regardless of religion or nationality, are entitled to the right to work to preserve their culture, heritage, language, and identity.
(b) The State may allow a community that includes followers of a single religion or members of a single nation to establish a separate communal settlement.
Official Calendar
The Hebrew Calendar is the official state calendar.
Independence Day and Memorial days
(a) Independence Day is the national holiday of the State.
(b) Day of Remembrance for the Fallen Soldiers of Israel and Holocaust and Heroism Remembrance Day are official state memorial days.
Days of Rest
Designated days of rest in the State of Israel are the Sabbath and the holy days of Israel, on which no worker shall be employed except under conditions determined by law; members of communities recognized by law are entitled to rest during their holidays.
Jewish Law
(a) Jewish law shall serve as the source of inspiration for lawmakers.
(b) Should the court encounter a legal question that demands a ruling and be unable to find an answer through the body of legislation, legal precedent, or clear analogy, it shall decide in light of the principles of freedom, justice, integrity, and peace associated with the heritage of Israel.
Protection of Holy Sites
Holy places shall be protected from desecration and all other harm, and from anything that may impinge upon religious followers’ free access to sacred places or insult their feelings regarding these places.
Immutability
This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members.
Explanatory Notes
At the First Zionist Congress the Basel Program was approved, according to which the goal of Zionism is “to establish a national home for the Jewish people in the Land of Israel”; in the Declaration of Independence it was proclaimed that the new state is a Jewish state and the national home of the Jewish people; in 2001 the Kinneret Covenant was published, signed by public figures across the political spectrum, in which it was established in the first paragraph that “the state of Israel is the national home of the Jewish people.” Despite the broad consensus among the Israeli public on the definition of the State of Israel as a Jewish state, the characteristics of the State of Israel as the nation state of the Jewish people have never been anchored in the Basic Laws of the State. The necessity of the Basic Law: Israel is the Nation State of the Jewish People assumes greater validity at a time when there are those who seek to abolish the right of the Jewish people to a national home in their land and the recognition of the State of Israel as the nation state of the Jewish people. The anchoring of the Jewish character of the State of Israel in a basic law will make it possible to reach a broad agreement on the establishment of a complete and comprehensive constitution in the future.
The first paragraph stipulates that the provisions of state laws shall be interpreted in light of this paragraph. In this context, it is appropriate to cite the former President of the Supreme Court, Justice Aharon Barak: “The values of Israel as a Jewish state possess a constitutional, supra-legal status. They influence the interpretation of all basic laws, and thus affect the constitutionality of all statutes. They affect the interpretation of all legal texts, for they should be viewed as part of the fundamental values of the State of Israel, and as such they are also part of the general purpose underlying every legal text in Israel. Thus, for example, it is presumed that every law passed by the Knesset and every order issued by the government are meant to realize the values of the State of Israel as a Jewish state.” (A Judge in a Democratic Society, 2004, p.89)
Throughout the law are included practical aspects expressing the nature of the State of Israel as the nation state of the Jewish people that are partially expressed in the existing legislation: State symbols (anthem, flag, emblem), language, the Law of Return, the ingathering of the exiles, Jewish settlement, the connection with the Jewish people in the Diaspora, Jewish heritage, Jewish calendar, and holy places.
The determination that the State of Israel is a democratic state as well as a Jewish one is secured in paragraph 2 of the present bill and interwoven like a red thread throughout different paragraphs, including those on language, heritage preservation, community settlement, days of rest, and protection of holy places.
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Presented to the Knesset speaker and Speaker Deputies
And brought before the Knesset on
August 3, 2011 – 3 Av, 5771
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The 19th Knesset
Initiators: Members of Knesset
Ayelet Shaked
Yariv Levin
Robert Ilatov
P/19/1550
Basic Law Proposal: Israel as the Nation State of the Jewish People
Jewish State
(a) The State of Israel is the national home of the Jewish people in which they realize their aspiration to self-determination in accordance with their cultural and historical heritage.
(b) The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people.
(c) The Land of Israel is the historic homeland of the Jewish people and the place where the State of Israel has been established.
Purpose
The purpose of this basic law is to define the identity of the State of Israel as the nation state of the Jewish people in order to anchor these values in a basic law, in the spirit of the principles in the Declaration of the Establishment of the State of Israel.
Democratic State
(a) The State of Israel shall have a democratic regime.
(b) The State of Israel shall be based on the foundations of freedom, justice, and peace as envisioned by the Prophets of Israel, and committed to the individual rights of all its citizens as detailed by all basic laws.
State Symbols
(a) The state anthem is Hatikvah.
(b) The state flag is white with two blue stripes near the edges and a blue Star of David at its center.
(c) The state symbol is a seven-branched menorah with olive branches on both sides and the word “Israel” beneath it.
Return
Every Jew has the right to immigrate to Israel and acquire citizenship of the State of Israel in accordance with the law.
Ingathering of the Exiles and Strengthening the Connection with the Jewish people in the Diaspora
The State shall act to gather the exiles of Israel and strengthen the link between Israel and Jewish communities in the Diaspora.
Help to Members of the Jewish People in Trouble
The State shall act to provide help to members of the Jewish people in trouble or in captivity due to the fact of their Jewishness.
Jewish Heritage
The State shall act to preserve and instill the cultural and historical heritage and tradition of the Jewish people and to cultivate it in Israel and the Diaspora.
The Right to Heritage Preservation
The State shall act to guarantee to all residents of Israel, regardless of religion or nationality, the right to work to preserve their culture, heritage, language and identity.
Official Calendar
The Jewish calendar is the official state calendar.
Independence Day and Memorial days
(a) Independence Day is the national holiday of the State.
(b) The Day of Remembrance for Fallen Soldiers of Israel and Holocaust and Heroism Remembrance Day are official state memorial days.
Days of Rest
Designated days of rest in the State of Israel are the Sabbath and the holy days of Israel, on which no worker shall be employed except under conditions determined by law; members of communities recognized by law are entitled to rest during their holidays.
Jewish Law
(a) Jewish law shall serve as a source of inspiration for lawmakers and judges in Israel.
(b) Should the court encounter a legal question that demands a ruling and be unable to find an answer through the body of legislation, legal precedent, or clear analogy, it shall decide in light of the principles of freedom, justice, integrity, and peace associated with the heritage of Israel.
Protection of Holy Places
Holy places shall be protected from desecration and all other harm, and from anything that may impinge upon religious followers’ free access to sacred places or insult their feelings regarding these places.
Violation of Rights
Rights accorded by this basic law are not to be infringed upon except through law befitting the values of the State of Israel, designed with proper purpose, and to an extent no greater than required, or according to a law by virtue of explicit authorization stated within it.
Immutability
This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members.
Explanatory Notes
At the First Zionist Congress the Basel Program was approved, according to which the goal of Zionism is “to establish a national home for the Jewish people in the Land of Israel”; in the Declaration of Independence it was proclaimed that the new state is a Jewish state and the national home of the Jewish people; in 2001 the Kinneret Covenant was published, signed by public figures across the political spectrum, in which it was established in the first paragraph that “the state of Israel is the national home of the Jewish people.” Despite the broad consensus among the Israeli public on the definition of the State of Israel as a Jewish state, the characteristics of the State of Israel as the nation state of the Jewish people have never been anchored in the basic laws of the State. This bill emphasizes the traditional and historical connection between the Jewish people and the Land of Israel and the national rights vested in the Jewish people as expressed in the Declaration of Independence: “The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped… After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion… Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland… This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and the Land of Israel and to the right of the Jewish people to rebuild its national home.” The righteousness of the path of the Jewish people in the Land of Israel is based on political, national, and historical grounds, and all rules stemming from the right of the Jewish people to self-determination apply to them. The necessity of the Basic Law: Israel is the Nation state of the Jewish People assumes greater validity at a time when there are those who seek to abolish the right of the Jewish people right to a national home in their land and the recognition of the State of Israel as the nation state of the Jewish people. The anchoring of the Jewish character of the State of Israel in a basic law will make it possible to reach a broad agreement on the establishment of a complete and comprehensive constitution in the future.
Throughout the law are included practical aspects expressing the nature of the State of Israel as the nation state of the Jewish people that are partially expressed in the existing legislation: State symbols (anthem, flag, emblem), language, the Law of Return, the ingathering of the exiles, Jewish settlement, the connection with Jewish people in diasporas, Jewish heritage, Jewish calendar, and holy places. According to this law, Jewish law and the principles of Jewish heritage serve as a source of inspiration for the legislature in establishing the body of legislation and for the Court in interpreting it. As determined by the former Deputy President of the Supreme Court, Justice Menachem Elon (in Hendels v. Bank Kupat Am [Rehearing of Civil Appeal 13/80], Decisions, vol. 35, section 2, p. 795): “Appealing to the system of Jewish law as the first and foremost source of inspiration for the interpretation of Israeli law, when this appeal is made with care and necessary precautions, in accordance with the present needs and the concern of the law, will provide Israeli law with historical roots of its own and develop a synthesis between the system of Jewish law and the law system of the Jewish State.”
The determination that the State of Israel is a democratic state as well as a Jewish one is secured in paragraph 3 of the present bill and interwoven like a red thread throughout different paragraphs, including those on language, heritage preservation, community settlement, days of rest, and protection of holy places
Proposed laws similar in essence were tabled during the 18th Knesset by MK Avraham Dichter and a group of other MKs (P/18/3541) and by MK Aryeh Eldad.
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Submitted to the Speaker and Deputy Speakers of the Knesset and tabled in the Knesset
July 22, 2013 – 15 Av, 5773
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The 19th Knesset
Initiators: Members of the Knesset
Ruth Calderon
Amram Mitzna
Rina Frenkel
Shimon Solomon
Eliezer Stern
Ronen Hoffman
David Tsur
Boaz Toporovsky
Binyamin Ben-Eliezer
P/19/1539
Basic Law Proposal: The Israeli Declaration of Independence and the Jewish and
Democratic State
Purpose
This basic law aims to secure and protect the values of the State of Israel as a Jewish and democratic State by giving the force of law to the basic principles stated in the Declaration of Independence, which is annexed verbatim to this law.
Stability
Emergency stipulations shall not be able to alter this basic law or temporarily annul its validity or add any provisions to it.
Immutability
This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members.
Appendix
(Clause no. 1)
The Declaration of the Establishment of the State of Israel
[Text of Declaration below from the official translation. SR]
The land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, create cultural values of national and universal significance and gave to the world the eternal Book of Books.
After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom.
Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, defiant returnees, and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood.
In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country.
This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home.
The catastrophe which recently befell the Jewish people – the massacre of millions of Jews in Europe – was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State, which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the community of nations.
Survivors of the Nazi holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Eretz-Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national homeland.
In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations.
On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.
This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.
Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.
We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.”
The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
The State of Israel is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947, and will take steps to bring about the economic union of the whole of Eretz-Israel.
We appeal to the United Nations to assist the Jewish people in the building-up of its State and to receive the State of Israel into the community of nations.
We appeal – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.
We extend our hand to all neighboring states and their peoples in an offer of peace and good neighborliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.
We appeal to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream – the redemption of Israel.
Placing our trust in the Almighty, we affix our signatures to this proclamation at this session of the provisional Council of State, on the soil of the Homeland, in the city of Tel-Aviv, on this Sabbath eve, the 5th day of Iyar, 5708 (14th May, 1948).
Explanatory Notes
The Declaration of Independence is a renowned document which anchors the most basic and important fundamental principles regarding the state of Israel’s identity. As a result, the court of law has been turning to this document for decades when ruling on a variety of issues. This basic law offers to anchor the Declaration of Independence, which expresses Israel’s credo and the fundamental principles at its base, by giving it the force of a basic law. Anchoring the Declaration of Independence is necessary in order to secure and protect the values of the State of Israel as a Jewish and democratic state.
Since the State of Israel does not yet have a constitution, the basic laws are those that define its character and identity, and hence are the highest ranked legal statutes. Today, laws are interpreted by the courts in light of the few already existing basic laws. That said, a basic law dealing with the state’s identity has not been enacted to date. Therefore, there is a genuine need to enact a basic law which shall ratify the Declaration of Independence and shall provide this fundamental document with the force of a basic law.
This basic law, like those previously enacted, determines that the State of Israel is the homeland of the Jewish people. It is important to emphasize that the notion of a Jewish state does not refer to Judaism as a religion, but rather to the cultural character of the nation state as the home of the Jewish people. That said, the State of Israel is committed to ensuring complete equality of social and political rights to all its inhabitants irrespective of religion, race, or gender. Within the declaration itself, there is an inherent expression of the will and intention to establish a country that has a Jewish character on the one hand and is committed to equality on the other. This basic law aims to secure equal rights as well as Israel’s democratic character.
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Presented to the Knesset speaker and Speaker Deputies
And brought before the Knesset on
July 22, 2013 – 15 Av, 5773
※
The 19th Knesset
Initiator: Member of Knesset
Ze’ev Elkin
P/19/2502
Basic Law Proposal: Israel is the Nation State of the Jewish People
Jewish State
(a) The State of Israel is the national home of the Jewish people in which they realize their aspiration to self-determination in accordance with their cultural and historical heritage.
(b) The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people.
(c) The provisions of this basic law or any other legislation shall be interpreted in light of what is determined in this paragraph.
Democratic State
The State of Israel has a democratic regime.
State Symbols
(a) The state anthem is Hatikvah.
(b) The state flag is white with two blue stripes near the edges and a blue Star of David in the center.
(c) The state emblem is a seven-branched menorah with olive leaves on both sides and the word “Israel” beneath it.
Language
(a) Hebrew is the official state language.
(b) The Arabic language has a special status, and its speakers have the right to access state services in their native language, as will be determined by the law.
Return
Every Jew has the right to immigrate to Israel and acquire citizenship of the State of Israel in accordance with the law.
Ingathering of the Exiles and Jewish Settlement
The State shall act to gather the exiles of Israel and to promote Jewish settlement on its territory, and it shall allocate resources for these purposes.
Connection with the Jewish People in the Diaspora
(a) The State shall act to strengthen the link between Israel and Jewish communities in the Diaspora.
(b) The State shall stretch out a hand to members of the Jewish people in trouble or in captivity due to the fact of their Jewishness.
Jewish Heritage
(a) The State shall act to preserve the cultural and historical heritage and tradition of the Jewish people and to cultivate it in Israel and the Diaspora.
(b) In all educational institutions serving the Jewish public in Israel, the history, heritage, and traditions of the Jewish people shall be taught.
The Right to Heritage Preservation
(a) All residents of Israel, regardless of religion or nationality, are entitled to the right to work to preserve their culture, heritage, language, and identity.
(b) The State may allow a community that includes followers of a single religion or members of a single nation to establish a separate communal settlement.
Official Calendar
The Jewish calendar is the official state calendar.
Independence Day and Memorial Days
(a) Independence Day is the national holiday of the State.
(b) Day of Remembrance for the Fallen Soldiers of Israel and Holocaust and Heroism Remembrance Day are official state memorial days.
Days of Rest
Designated days of rest in the State of Israel are the Sabbath and the holy days of Israel, on which no worker shall be employed except under conditions determined by law; members of communities recognized by law are entitled to rest during their holidays.
Jewish Law
(a) Jewish law shall serve as the source of inspiration for lawmakers.
(b) Should the court encounter a legal question that demands a ruling and be unable to find an answer through the body of legislation, legal precedent, or clear analogy, it shall decide in light of the principles of freedom, justice, integrity, and peace associated with the heritage of Israel.
Protection of Holy Places
Holy places shall be protected from desecration and all other harm, and from anything that may impinge upon religious followers’ free access to sacred places or insult their feelings regarding these places.
Immutability
This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members
Explanatory Notes
At the First Zionist Congress the Basel Program was approved, according to which the goal of Zionism is “to establish a national home for the Jewish people in the Land of Israel”; in the Declaration of Independence it was proclaimed that the new state is a Jewish state and the national home of the Jewish people; in 2001 the Kinneret Covenant was published, signed by public figures across the political spectrum, in which it was established in the first paragraph that “the state of Israel is the national home of the Jewish people.” Despite the broad consensus among the Israeli public on the definition of the State of Israel as a Jewish state, the characteristics of the State of Israel as the nation state of the Jewish people have never been anchored in the basic laws of the state.
The necessity of the Basic Law: Israel is the Nation State of the Jewish People assumes greater validity at a time when there are those who seek to abolish the right of the Jewish people to a national home in their country and the recognition of the State of Israel as the nation state of the Jewish people. The anchoring of the Jewish character of the State of Israel in a basic law will make it possible to reach a broad agreement on the establishment of a complete and comprehensive constitution in the future.
The first paragraph stipulates that the provisions of state laws shall be interpreted in light of this paragraph.
Throughout the law are included practical aspects expressing the nature of the State of Israel as the nation state of the Jewish people that are partially expressed in the existing legislation: State symbols (anthem, flag, emblem), language, the Law of Return, the ingathering of the exiles, Jewish settlement, the connection with the Jewish people in diasporas, Jewish heritage, Jewish calendar, and holy places.
The determination that the State of Israel is a democratic state as well as a Jewish one is secured in paragraph 2 of the present bill and interwoven like a red thread throughout different paragraphs, including those on language, heritage preservation, community settlement, days of rest, and protection of holy places.
Identical bills were put forward in the 18th Knesset by MK Avraham Dichter and a group of Knesset Members (P/18/3541) and by MK Aryeh Eldad (P/18/4096).
A bill similar in principle to the present one was put forward in the 19th Knesset by MK Ayelet Shaked and a group of Knesset Members (P/19/1550).
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Submitted to the Knesset Speaker and Speaker Deputies
And brought before the Knesset on
May 26, 2014 – 26 Iyyar, 5774
※
The 19th Knesset
Initiator: Member of Knesset
Miri Regev
P/19/2530
Basic Law Proposal: Israel is the Nation State of the Jewish People
Jewish State
(a) The State of Israel is the national home of the Jewish people in which they realize their aspiration to self-determination in accordance with their cultural and historical heritage.
(b) The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people.
(c) The Land of Israel is the historic homeland of the Jewish people and the place where the State of Israel has been established.
Purpose
The purpose of this basic law is to define the identity of the State of Israel as the nation state of the Jewish people in order to anchor these values in a basic law, in the spirit of the principles in the Declaration of the Establishment of the State of Israel.
Democratic State
(a) The State of Israel shall have a democratic regime.
(b) The State of Israel shall be based on the foundations of freedom, justice, and peace as envisioned by the Prophets of Israel, and committed to the individual rights of all its citizens as detailed by all basic laws.
State Symbols
(a) The state anthem is Hatikvah.
(b) The state flag is white with two blue stripes near the edges and a blue Star of David in the center.
(c) The state emblem is a seven-branched menorah with olive leaves on both sides and the word “Israel” beneath it.
Return
Every Jew has the right to immigrate to Israel and acquire citizenship of the State of Israel in accordance with the law.
Ingathering of the Exiles and Strengthening the Connection with the Jewish People in the Diaspora
The State shall act to gather the exiles and strengthen the link between Israel and Jewish communities in the Diaspora.
Help to Members of the Jewish People in Trouble
The State shall act to provide help to members of the Jewish people in trouble or in captivity due to the fact of their Jewishness.
Jewish Heritage
The State shall act to preserve and instill the cultural and historical heritage and tradition of the Jewish people and to cultivate it in Israel and the Diaspora.
The Right to Heritage Preservation
The State shall act to guarantee to all residents of Israel, regardless of religion or nationality, the right to work to preserve their culture, heritage, language, and identity.
Official Calendar
The Jewish calendar is the official state calendar.
Independence Day and Memorial Days
(a) Independence Day is the national holiday of the State.
(b) Day of Remembrance for the Fallen Soldiers of Israel and Holocaust and Heroism Remembrance Day are official state memorial days.
Days of Rest
Designated days of rest in the State of Israel are the Sabbath and the holy days of Israel, on which no worker shall be employed except under conditions determined by law; members of communities recognized by law are entitled to rest during their holidays.
Jewish Law
(a) Jewish law shall serve as the source of inspiration for lawmakers and judges in Israel.
(b) Should the court encounter a legal question that demands a ruling and be unable to find an answer through the body of legislation, legal precedent, or clear analogy, it shall decide in light of the principles of freedom, justice, integrity, and peace associated with the heritage of Israel.
Protection of Holy Places
Holy places shall be protected from desecration and all other harm, and from anything that may impinge upon religious followers’ free access to sacred places or insult their feelings regarding these places.
Violation of Rights
Rights accorded by this basic law are not to be infringed upon except through law befitting the values of the State of Israel, designed with proper purpose, and to an extent no greater than required, or according to a law by virtue of explicit authorization stated within it.
Immutability
This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members.
Explanatory Remarks
At the First Zionist Congress the Basel Program was approved, according to which the goal of Zionism is “to establish a national home for the Jewish people in the Land of Israel”; in the Declaration of Independence it was proclaimed that the new state is a Jewish state and the national home of the Jewish people; in 2001 the Kinneret Covenant was published, signed by public figures across the political spectrum, in which it was established in the first paragraph that “the state of Israel is the national home of the Jewish people.” Despite the broad consensus among the Israeli public on the definition of the State of Israel as a Jewish state, the characteristics of the State of Israel as the nation state of the Jewish people have never been anchored in the basic laws of the state.
This bill emphasizes the traditional and historical connection between the Jewish people and the Land of Israel and the national rights vested in the Jewish people as expressed in the Declaration of Independence: “The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped… After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion… Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland… This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and the Land of Israel and to the right of the Jewish people to rebuild its national home.” The righteousness of the path of the Jewish people in the Land of Israel is based on political, national, and historical grounds, and all rules stemming from the right of the Jewish people to self-determination apply to them.
The necessity of the Basic Law: Israel is the Nation state of the Jewish People assumes greater validity at a time when there are those who seek to abolish the right of the Jewish people right to a national home in their land and the recognition of the State of Israel as the nation-state of the Jewish people. The anchoring of the Jewish character of the State of Israel in a basic law will make it possible to reach a broad agreement on the establishment of a complete and comprehensive constitution in the future.
The first paragraph stipulates that the provisions of state laws shall be interpreted in light of this paragraph.
Throughout the law are included practical aspects expressing the nature of the State of Israel as the nation state of the Jewish people that are partially expressed in the existing legislation: State symbols (anthem, flag, emblem), language, the Law of Return, the ingathering of the exiles, Jewish settlement, the connection with Jewish people in diasporas, Jewish heritage, Jewish calendar, and holy places.
According to this law, Jewish law and the principles of Israel’s heritage will serve as the source of inspiration for the legislature in establishing the body of legislation and for the Court in interpreting it. As determined by the former Deputy President of the Supreme Court, Justice Menachem Elon (in Hendels v. Bank Kupat Am [Rehearing of Civil Appeal 13/80], Decisions, vol. 35, section 2, p. 795): “Appealing to the system of Jewish law as the first and foremost source of inspiration for the interpretation of Israeli law, when this appeal is made with care and necessary precautions, in accordance with the present needs and the concern of the law, will provide Israeli law with historical roots of its own and develop a synthesis between the system of Jewish law and the law system of the Jewish State.”
The notion that the State of Israel is a democratic state in addition to being a Jewish one is secured in paragraph 3 of the present bill and interwoven like a red thread throughout different paragraph, includes those on language, heritage preservation, community settlement, days of rest, and protection of holy places.
Bills similar in principle to the present one were put forward in the 18th Knesset by MK Avraham Dichter and a group of Knesset Members (P/18/3541) and by MK Aryeh Eldad (P/18/4096), and in the 19th Knesset by MK Ze’ev Elkin (P/19/2502).
An identical bill was put forward in the 19th Knesset by MK Ayelet Shaked and a group of Knesset Members (P/19/1550).
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Submitted to the Knesset Speaker and Speaker Deputies
And brought before the Knesset on
June 9, 2014 – 11 Sivan, 5774
※
November 23, 2014: Announcement of the Cabinet Secretary at the End of the Cabinet Meeting
Today the Cabinet discussed the drafts for the Basic Law: Israel is the Nation State of the Jewish people that had been submitted by MK Ze’ev Elkin (P/2502) and MKs Ayelet Shaked, Yariv Levin, and Robert Ilatov (P/1550), and decided as follows:
To support the principles outlined by the Prime Minister as detailed in the resolution’s appendix.
To support in the initial reading and in the framework of a preliminary discussion by the full Knesset the drafts of the Basic Law: Israel is the Nation State of the Jewish people submitted by MK Ze’ev Elkin (P/2505) and MKs Ayelet Shaked, Yariv Levin, and Robert Ilatov (P/1550).
This is on condition that the proponents will agree that to all bills will be attached the government bill on the subject submitted by the Prime Minister, which shall be worded on the basis of the principles detailed in the appendix to this resolution and coordinated with it. The government bill will be prepared in coordination with the Attorney General.
Appendix
Purpose
To define the identity of the State of Israel as the nation state of the Jewish people and to anchor the values of the State of Israel as Jewish and democratic state, in the spirit of the principles in the Declaration of the Establishment of the State of Israel.
Fundamental Principles
(a) The Land of Israel is the historic homeland of the Jewish people and the place where the State of Israel has been established.
(b) The State of Israel is the national home of the Jewish people in which they realize their right to self-determination in accordance with their cultural and historical heritage.
(c) The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people.