Israel’s High Court of Justice will live stream next week’s controversial hearing on the Nationlity Law following a request from the Zionist organization Im Tirtzu.
The Nationality Law is one of Israel’s 14 Basic Laws that have super-legal status and serve as the country’s de facto constitution.
Despite the law’s quasi-constitutional status, the High Court will be convening on Tuesday to discuss its legitimacy – the first time the Court has ever considered striking down a Basic Law (which would be tantamount to striking down the 1st or 2nd amendment).
The court’s decision has drawn ire from Zionist groups including Im Tirtzu, a leading critic of the court’s judicial activism. On Tuesday, Im Tirtzu sent a letter to Chief Justice Esther Hayut demanding that the hearing be streamed live.
Im Tirtzu CEO Matan Peleg, while stressing that “the decision to hold the hearing in and of itself is a serious violation of Israel’s foundation as a Jewish and democratic state,” and “a serious violation of the separation of powers and the authority of our elected officials,” nevertheless argued that the court is compelled to allow as many Israelis as possible to follow the hearing, especially in light of the coronavirus restrictions.
The High Court of Justice has faced sharp criticism from both sides of the political aisle over its judicial activism. Former justice ministers Haim Ramon (Kadima) and Daniel Friedmann (Shinui) have been among the country’s high-profile liberals who criticized the boundary-cracking High Court.
Earlier this month, Attorney General Avichai Mandelblit criticized the High Court’s decision to convene the hearing on the Nationality Law in the first place.
In 2017, Knesset Speaker Yuli Edelstein—who resigned his post following an arm-wrestling match with Court President Hayut—said that the Nationality Law was a message to the Supreme Court. The fact is, he argued, that when a Supreme Court justice reviews a case, he or she is expected to consider Israel’s constitutional laws, the Knesset Basic Laws. “If I’m a Supreme Court Justice today,” Edelstein said, “on which basic laws am I supposed to base my rulings if I wish to emphasize Israel’s role as a Jewish State? There aren’t any.”
From 1958 to 1988, the Knesset passed nine Basic Laws, governing state institutions. In 1992, it passed Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, establishing the Supreme Court’s powers of judicial review based on these two constitutional laws. Both relatively new basic laws describe Israel as a Democratic and Jewish State.
But, as Speaker Edelstein put it, the democratic part of the Democratic and Jewish State has been well taken care of, it’s now time for the Jewish part, which should fit nicely within the concept of Judicial Review.
The Nationality Law’s clauses are:
- Sections 1–2 detail the principles for which the law was established: “Israel is the homeland of the Jewish people in which the Jewish people fulfill their ambition to self-determination according to their cultural and historical legacy”
- Section 3 regulates the state’s symbols – the flag, the anthem, and the Emblem of Israel
- Section 4 stipulates that Hebrew is the only official language of the state of Israel while the Arabic language would be of “special status”
- Section 5 establishes the Law of Return as part of Israel’s Basic Laws
- Sections 6–7 deal with the relations between the state of Israel and the Jewish diaspora as well as Israel’s responsibility for in-gathering world Jewry
- Sections 8–9 deal with the state’s obligation to preserve the Jewish heritage
- Sections 10–12 regulate the Hebrew calendar, holidays, and memorial days
- Section 13 provides that in a case of a laconic phrase in the Israeli law, the Israeli court system would use rabbinical Jewish law as a source of inspiration
- Section 14 deals with the state’s obligation to protect the holy places of all faiths located within the territory of Israel