Israel’s Nation State law: Now what?

By Dogan Akman

Preliminary observations on the law

I have read a great number of papers and articles where the authors stated or alleged facts, analysed, opined and argued various positions that supported or impugned the  necessity, timing, spirit, wisdom, substance and wording of  the Nation State [Basic] Law (“NSL”).

Personally, I consider the law to be a perfectly legitimate exercise of the sovereign right of the State of Israel through its legitimate government to propose this legislation and for the democratically elected Knesset to enact the law in accordance with the applicable parliamentary rules and in conformity with the laws of the country.

In the circumstances, it is wholly inappropriate for anyone or organisation  of the Jewish Diaspora and most particularly  its American segment, to criticise the law, particularly since the law does not in any way shape or form  prejudice  their Jewish identity, rights and freedoms or for that matter those of any other inhabitant of Israel.

My only question is whether the government drafted the Basic Law the right way so as to spare itself, if not of all, certainly of a great deal of the predictable headaches and aggravations which the legislation has caused both on the domestic and international fronts; so far, with no end in sight in so far as the Israeli Arab community is concerned.

On the whole, those who took issue with the law and objected to it , did so on political  and ideological grounds ,sometimes framed as phony  legal ones, by constantly harping on the argument that the legislation  infringes on the democratic  cum equality rights  of the Israeli religious and ethnic minorities and kept referring to the Basic Law titled Human  Dignity and  Liberty (“HDL”) which really has no bearing on the validity of the NSL.

At all events, the Government and the Knesset could indeed have readily pre-empted a great deal of the hysteria, inane criticism, ideological, political and geo-political opposition to the law. More specifically on the home front, they could have pre-empted or significantly softened the impact of the legislation on the perception of it by the Druze community.

All they needed to do was to resort to the drafting formula used in American legislation in similar circumstances.

By way of illustration, in May of this year, the U.S. Senate passed Bill S2940 titled as the “Anti-Semitism Awareness Act of 2018” .The purpose of the Bill is “to provide a definition of anti-Semitism for the enforcement of Federal antidiscrimination laws concerning education programs or activities.”

In anticipation of furious political objections to the law based on the argument that the definition restricts free speech and of a possible court challenge to it, the legislative draftsman inserted the following clauses in the Bill:

“(a) General Rule of construction-Nothing in this Act shall be construed

(1)……

 (2)……..

(3) to diminish or infringe upon the rights protected under any other provision of law that is in effect as of the date of enactment of this Act.

(b) Constitutional Protections-Nothing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment [freedom of speech] to the Constitution of the United States. “

In the light of the adamant opposition of Naftali Bennett to amend the NSL, the chances of inserting the kind of “notwithstanding clause” used by the Americans are nil.  To his credit, Bennett did acknowledged that, in so far as the Druze community is concerned, the legislative process was damaging

In the circumstances, the alternative solution would be to convert Israel’s Proclamation of Independence (“PoI”) as a whole or, preferably, the following passage of it into a Basic Law titled “Democratic Rights”:

“THE STATE OF ISRAEL foster[s] 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 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. “

Then again, in case my remedial suggestions are characterised as a product of a certain kind of ghetto mentality, neither my ascendants nor I have ever dwelled in a ghetto.

Now what?

The event

The events that prompted me to ask this question are those reported by David Rosenberg in his article titled “Sharia court in Israel places Jewish girl in Arab custody”, published here on September 17inst.

The article reports the decision of  an Israeli Sharia court  to award  the  Muslim grand-mother ( the applicant)  permanent custody of her two year old  grand-daughter – the issue of the marriage of a Jewish woman  and a Muslim man,  despite the opposition of the mother who sought to secure the custody  of the child.

The marriage broke up during the proceedings before the Sharia Court.

The judicial test governing child custody cases

In the western world, the quasi-universal  test of the soundness  of  the decisions made  by Courts concerning the  granting  of  temporary  and  permanent  custody  to a particular party  of a child  is:   Whether  the Court  and/or the agency acted in the  best interests of the child.

In this context, there also exists   the second  inter-related rebuttable presumption of fact, that the mother is best situated to provide for the needs and well- being of the child and therefore is prima-facie entitled to have permanent custody of the child.

In this case, the Court in reaching its decision relied on and adopted the formal recommendation of the state secular child welfare agency involved in the case.

The Nation State law (NSL)

The law is silent on the issue of religion save where the Diaspora is concerned. In this regard, Article 6 of the law provides:

“6.Diaspora
a) …………
b) The state will act to preserve the cultural, historical and religious legacy of the Jewish people among the Jewish Diaspora.”

The Questions

This case raises a number of important questions.

First, whether the State having formally taken upon itself the legal duty to preserve the cultural, historical and religious legacy of the Jewish people in the Diaspora, does not owe an identical duty to the child of a Jewish mother notwithstanding the fact that her father is a Muslim?

Second and more seriously, does it make any sense for an Israeli state organ i.e. its child welfare agency to recommend to a Sharia court, that permanent custody of a Jewish child be given to her Muslim grandmother despite the fact that at first, the child was raised by her Jewish grandmother and the child’s mother is seeking custody of the child?

In this connection, due to the confidentiality rules that govern this and some other types of family related proceedings. Unfortunately we do not know the grounds on which the child welfare agency made its recommendation to the Sharia court.

As importantly, we cannot tell what the Sharia Court would have done in the event the welfare agency had recommended that the permanent custody be granted to the mother of the child instead of her Muslim grandmother.

Sharia law “has been defined as “a religious law forming part of the Islamic tradition derived from the religious precepts of Islam, particularly the Koran and the Hadith. In Arabic, the term ‘shari’ah’ refers to Go’s immutable divine law and is contrasted with ‘figh’, which refers to its human scholarly interpretations.”

Third, does it make any sense to allow the adjudication of the custody of a Jewish child by a Sharia court in accordance with the precepts of the Sharia law-particularly since the father of the did not seek the custody and is not otherwise a party to the proceedings, any more than it would make sense to submit the adjudication of the custody of a Muslim child to a rabbinical court?

This question in turn raises the fourth question: how does the State of Israel and its emanation-the child welfare agency and/ or the Chief Rabbinate propose to protect the Jewish identity of a child in the custody of a Muslim family when, for example, in this case, the child will spend all the years between the age of two and the age of majority, in a Muslim family, raised the Muslim way; live in a Muslim community and culture and, attend Muslim schools?

Surely, in cases of mixed marriages, where the custody of children is   contested between the parents, the case ought not to be assigned to a rabbinical or to a Sharia court.

Yet, this position may in turn raise the fifth question as to whether this constitutes an unjustified infringement or abridgment of the contesting parties’ freedoms of religion and of conscience?

The legal issue would be further compounded in the event under the Sharia law, the child of a Muslim father married to a non-Muslim is deemed to be a Muslim.

I submit that the most humane, and therefore the most decent way out of this conundrum would be to have a suitably qualified lay court determine the relative merits of the applicants’ cases and decide the custody issue in the best interests of the child, regardless of the difference in the respective religious identities of the child and of the parent to whom the sole or primary custody is awarded.

Dogan Akman was born and schooled in Istanbul, Turkey. Upon his graduation from Lycee St. Michel, he immigrated to Canada with his family. In Canada, he began his professional career by teaching university in sociology-criminology and social welfare policy. After a stint as a Judge of the Provincial Court (criminal and family divisions) of the Province of Newfoundland and Labrador, he joined the Federal Department of Justice working first as a Crown prosecutor, and then switching to civil litigation and specialising in aboriginal law. He retired in 2009 to pursue new endeavours.

September 20, 2018 | 12 Comments »

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12 Comments / 12 Comments

  2. @ Edgar G.:

    I’ve been thinking, and this case reminds me very much of the Mortara case, which happened in the mid 1800s in Italy, where the little boy was stolen from his family and brought up to be a priest…all on the word of an illiterate half-crazy shiksa, who was a friend of the maidservant who -I think- died. . In fact reading later about the case (of which I have the book) there was no proof of any kind that the maid had had the infant baby baptised at all- he was 6 years old when they grabbed him).

  3. @ Sebastien Zorn:

    Thanks Sebastien. If Israel wants to encourage Jews to build and settle in Area C, that’s the business of the State only, nobody else’s. And “democracy” doesn’t even come into it…why should it. Area C is by law, solely under Israel rule.

    Israel is for Jews not Arabs anyway.

    And as for the disposition of the little Jewish girl directly against the wishes of her mother, with whom she should be, it;s just another disgusting and stupid thing that Israelis do from time to time to time; and very often too. The legal team which is fighting that will undoubtedly win and get the back child with her mother.

    Given to an Arab grandmother……what a sickening thought……!!.

  4. @ Edgar G.:
    I agree with you. Israel belongs to the Jews and the child should go with it’s Jewish mother. Kahane was right about inter-marriage between Jews and Muslims being a bad thing. This highlights that. As far as “democracy” goes, what’s democratic about sentencing a Jewish girl to be raised as a 2nd class citizen as all females are among Muslims? I don’t think Shariah courts should even be allowed.

  6. @ Bear Klein:

    The return of the Moshiach had no bearing on the Ownership of The Land as this Anti-Semitic statement from the Senior Druze gentleman insinuates. (how quick he was to jump on this pejorative comment)The Moshiach nebulous is confined to religious and some orthodox Jews.

    Modern-day Jews religious or not, with common-sense, define our ownership from the San Remo, The LoN British Mandate, The Anglo-American Treaty and Art.80 of the United Nations Foundation Charter, which all declare what Jews have ALWAYS known, that Palestine/Israel has always belonged to the Jews..

    Of course, for the Jews, of whom there is a distressing number, especially in America, with NO common-sense, as the Sages used to say…there is no hope for them.

  7. Only a few paragraphs of a very good article are copied below (worth linking to read it all

    The Machiavellian Opponents of the Nation State Law

    The public debate that has emerged after the approval by the Knesset of the Nation State Law is a clear indicator of Israel’s vibrant democracy and an extreme illustration of the freedom of expression that characterizes the Israeli state of mind. Arabs, Druze, and Jews expressed their views on this matter, both pro and con, notwithstanding the fact that the core argument is essentially political rather than substantive.

    With that said, the protests in Israel against the new law are a red alert. They reflect an emerging tendency among liberal streams in Jewish Israeli society to undermine the long-accepted axiom that Israel is the national home of the Jewish people.

    The fiercest critics of the law claim that it lacks a firm reference to the equality principle. This assertion of supposed injustice embedded within the Nation State Law, an assertion that threatens the fragile equilibrium Jewish Israelis share with non-Jewish minorities living within the sovereign boundaries of the country, seems to be motivated more by the desire to topple the present government than by genuine concern for the (supposedly) affected values.

    The object appears to be to incite the small Druze community living in Israel, whose bond with the Jews is commonly referred to as Brit Damim – a “Covenant of Blood.” This refers in particular to the fact that Druze young people are recruited into the Israeli security forces along with Jewish youngsters.

    By intentionally spreading a false interpretation of alleged evils deriving from the Nation State Law, mainly the travesty that the Druze are considered by the state to be second-class citizens, the anti-government activists are endangering the long-lasting modus vivendi based upon the loyalty of the Druze to Israel.

    This is not the first time this Machiavellian approach to undermining the government has reared its head in the Jewish State. In his book Churchill and the Jews, Martin Gilbert writes, “Churchill was surprised and shocked when [Herbert] Samuel informed him that the Arabs had been provoked to riot [in Jaffa in November 1921] by a hard core of Jewish Communists.” Churchill replied that it was Samuel’s responsibility to purge the Jewish communities and newcomers of Communist elements, “and without hesitation or delay have all those who are guilty of subversive agitation expelled from the country.”

    The modern-day version of this Machiavellian approach had an immediate effect among radical fragments of the Druze, who managed to overshadow the traditional moderate leadership and lead a mass protest in Tel Aviv. The Druze senior retired officer, Amal As’ad, in an open letter to Prime Minister Netanyahu (July 21, 2018), bluntly expressed his distrust of the most fundamental canon of Israel as the national home for the Jewish people. In his words, “From where do you [Jews] draw the temerity to state that the land belongs to you? What is the basis for the Jewish claim to the right of ownership of the land? If it is just that messianic belief in God’s promise, why wouldn’t you wait for the Messiah’s arrival?”

    A stunning phenomenon following As’ad’s letter was the broad and vocal support it received from high-ranking Jewish Israeli retired officers and security officials. They emphasized the “Covenant of Blood” between the Jews and the Druze and offered not a single word of criticism for As’ad’s anti-Zionist diatribe.

  8. Bear Klein Said:

    In regards to the Druze some objected to the law because they felt slighted as though the law was saying they are not equal citizens. Having a notwithstanding clause does NOT address what some of the Druze are objecting to.

    In my comment (2 comments up) I left out the word NOT which changed the whole meaning.

  9. Druze don’t like Israel’s nation-state law. Now there’s a plan to make them feel better.

    JERUSALEM (JTA) — A team tasked with formulating a plan to address the Druze community’s discomfort with the nation-state law has presented its recommendations three days after it was assembled.

    The findings presented Wednesday will be turned over to a newly established ministerial committee chaired by Prime Minister Benjamin Netanyahu that will oversee its advancement and implementation.

    The controversial law with quasi-constitutional status passed last week enshrines Israel as the nation-state of the Jewish people. The law identifies Arabic as a language with “special status.”

    In the wake of backlash from the Druze community, Netanyahu has met with Druze political, community and religious leaders.

    An Arab-Israeli lawmaker from the Labor Party and three Druze officers from the Israeli army have resigned in recent days over the law.

    A statement from the Prime Minister’s Office called the plan “an historic outline that constitutes a revolution in the legal status of minority community members who serve in the security forces, particularly the Druze community.”

    The outline calls for “Anchoring in law the status of the Druze and Circassian communities. The law will esteem the contribution of the Druze community to the State of Israel in building up the country, strengthening security and fashioning the face of Israeli society as an equal and varied society.” It also calls for support for community religious, cultural and educational institutions; the strengthening of Druze towns and villages, including solutions for residential construction and the establishment of new communities as necessary; and the preservation of the Druze heritage.

    Also, the outline says the government must “anchor in a basic law recognition of the contribution of those – of all faiths and communities, including the Druze – who take part in the defense of the state.” The law also would enshrine the eligibility for benefits of minority community members of all faiths and communities who serve in Israel’s security forces in order to help them achieve social equality.

    A group of Druze lawmakers who filed a lawsuit with the Supreme Court against the law told Ynet that they would drop their petition if the plan moves forward.

    “It allows us to be proud and equal citizens among our nation and country,” Kulanu party lawmaker Akram Hasson told Ynet on Wednesday evening. “All we wanted is to be one people and one state. If the plan we received is indeed implemented, we will absolutely stop everything.”

    The team included representatives from the Prime Minister’s Office, the Druze community, Druze and non-Druze lawmakers, and a forum of senior reserve officers, according to the Prime Minister’s Office.

    https://www.jta.org/2018/08/01/news-opinion/druze-dont-like-israels-nation-state-law-now-theres-plan-make-feel-better

  10. Actually the law codified that Israel was the Nation-State of the Jewish people, which legally expressing reality. The reason for doing so was to make sure it was preserved for the future (including aliyah and settlement of the land). It codified the states symbols and language which were already in use.

    The Nation-State Basic Law does not supersede the Basic Law from 1992 on Human Rights and Dignity which provides for civil rights for all individuals in Israel. Basic Laws are equal UNLESS a later one expressly
    contradicts a previous Basic Law. This does not.

    In regards to the Druze some objected to the law because they felt slighted as though the law was saying they are not equal citizens. Having a notwithstanding clause does address what some of the Druze are objecting to. I will find an article to address and reference it below.

  11. Just a question. If Israel wanted to stimulate Jewish Settlement in Area C, what does this have to do with democracy…. It;s to do with the fact that Arabs are not involved in Area C, being supposedly in charge of Areas A and B. So where is there any conflict. The Land is Jewish, belongs to the Jewish State which is supposed to encourage close settlement of Jews on the Land. The Land would then presumably be ruled by Jewish Law, allowing the exceptions outlined in the Balfour etc.

    i’m paraphrasing parts of Balfour, Mandate, etc, which were all decided by Major Democracies, so presumably some obscure legal point re same is involved, so I am at sea.

  12. I wrote the following to the author,

    At first I thought, “not another article on the NSL” but read it anyway. I was very impressed by what you had to say and how you said it. But from my perspective there are more “Now what?”

    You suggested a small amendment, though not necessary, may have been prudent.

    “(a) General Rule of construction-Nothing in this Act shall be construed

    (1)…… (2)…….. (3) to diminish or infringe upon the rights protected under any other provision of law that is in effect as of the date of enactment of this Act.

    (b) Constitutional Protections-Nothing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment [freedom of speech] to the Constitution of the United States. “

    With due respect, this misses the point.

    The NSL was deemed necessary by the Knesset, I think, in order to protect the Jewish nature of the state. It was felt that the Court paid no attention to that concern and always did the “democratic” thing. It was intended that the NSL would put the Jewish thing on par with the democratic thing.

    To my mind such parity is not the answer because, left to its own devices, the Court will always protect democracy rather than the Jewish thing. When the two are in conflict and one must choose, the Jewish thing should take precidence.

    Can it really be said that minorities won’t be affected in any way.

    For instance, can the Knesset pass a law that stimulates aliya or for that matter emigration of Arabs. Both would change the demographics. Can the Jewish thing be a justification to such a law though not necessarily democratic.

    If we wanted to stimulate Jewish settlement of Area C, would it pass the democratic test?

    Doesn’t supporting Zionism affect the democratic nature of the state?