High Court drops the ball on Jewish Nation-State Law - analysis
Late on Monday, the High Court once again ordered that a scheduled hearing would be pushed off until June 2020.
By YONAH JEREMY BOBsraelis from the Druze minority together with others take part in a rally to protest against Jewish nation-state law in Rabin square in Tel Aviv, Israel, August 4, 2018(photo credit: CORINNA KERN/REUTERS)
The High Court of Justice kicked the can down the road on the Nation-State Law once again.Petitions against the law’s constitutionality were filed as early as July 2018. To date, no hearing has occurred, and the High Court has repeatedly pushed off hearing dates it had set, wagging its finger at the state that this would be the last postponement.But once again, the court on Monday ordered that a scheduled hearing be pushed off until June.One can be for or against the Basic Law: Israel as the Nation-State of the Jewish People, or just specific aspects of it. One can be for or against the High Court weighing in on a basic law – and the Nation-State Law is a basic law. Some say that a basic law, by definition, is beyond the High Court’s jurisdiction, as it carries constitutional weight.Others say that if parts of the Nation-State Law contradict prior basic laws, such as the Basic Law: Human Dignity and Liberty, then the High Court could strike or limit those contradictory aspects.Regardless of what side of the debate one favors, the court’s decision to be willing to hear the petitions – meaning that it thinks, at least in theory, that it can strike basic laws regardless of whether it strikes anything in this case – but then decide to never actually hear the arguments is a legal limbo that helps no one and prolongs a fault-line issue.Until the High Court decides, those on the Right will accuse it of intent to strike down a right-wing-favoring basic law, painting the court as making an unconstitutional power grab, and will use this as a basis to argue for limiting the court’s powers.At the same time, the Left will most likely accuse the High Court of abandoning Israeli-Druze, Israeli-Arabs and international law in areas where the Nation-State Law may bang heads with international law.Had the court simply said that it did not have jurisdiction to hear the case, the Left would have been upset for a short period, but the controversy would have returned to the Knesset to address whether amendments need to be made, especially for the Druze.Deciding to hear the case, but repeatedly kicking the can down the road, has simply perpetuated the high stakes fight over the law and the anger from both sides.
One could have sympathy for the High Court that there has been no government for most of the time since July 2018, including now, and the court may prefer to hear the case when it has a clearer idea of the next government’s position regarding the law.In particular, Blue and White leader Benny Gantz has said that he would amend the law, something that would save the court from having to weigh in.But the passive approach has done and continues to do damage to the country’s social fabric, and takes the pressure off the political class from having to even discuss a resolution.In this case, while the court may believe it is taking the safer and more cautious approach, it has neither done itself, nor the country, any favors.
