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Analysis || Court rejection of Israeli nationality highlights flaws of Jewish democracy

The distinction between citizenship and nationality ostensibly justifies and rationalizes discrimination and exclusion.

By Aeyal Gross | Oct. 3, 2013 | 4:05 PM | http://www.haaretz.com/images/icons/comment.png1

Wednesday’s Supreme Court decision rejecting the appeal of 21 appellants to be listed as “Israelis” in the Population Registry’s “nationality” rubric (which actually represents ethnic identity and not citizenship) reiterated, but also expanded on a ruling issued by then-Supreme Court President Shimon Agranat some 40 years ago.

Nearly six years ago Justice Noam Sohlberg, then a Jerusalem District Court judge, rejected the petition because the character of the topic was ideological, historic and political, but not legal, and was therefore not justiciable. But in Wednesday’s ruling the justices chose to enter the lion’s den of the issue of nationality and citizenship in Israel, and debated the separation of these elements. Although the panel of Supreme Court President Asher Grunis, Hanan Melcer and Uzi Vogelman rejected the appeal, the justices said the issue was indeed justiciable.

As Vogelman wrote, there is a recognized difference between “civic nationality,” in which nationality and political citizenship are identical and which is based on a social covenant, and “ethno-cultural nationality,” in which an individual’s affiliation with a national group is the result of common characteristics, like language, culture and religion. It seems that Vogelman was correct when he described the second of the two as the way the State of Israel relates to the concept of “nationality.” But the question is whether in a democratic era it’s possible to have equality among citizens while retaining the concept of ethnic nationalities and the state’s identification with only one of those groups.

Although Vogelman agreed with the District Court that courts of law are not the natural place for debating these issues, he rejected the notion that the issue is not justiciable. In his words, to issue a declarative ruling for the appellants that they belong to the “Israeli” nationality, the appellants would have to prove the existence of such a people. Given the historic ruling by Agranat, who rejected the argument that the founding of the State of Israel created an Israeli nationality, Vogelman stressed the need to prove that since Agranat’s ruling there had been some change. In his eyes no such change was proven, and the appellants’ argument was in essence wishful thinking; they had not proven that the public’s perception of the concept of “nationality” had changed.

The distinction between nationality and citizenship was even more strongly emphasized by Melcer, who based himself on the definition of Israel as a Jewish state in the Declaration of Independence and in basic laws, and ruled that the appellants were confusing the concept of nationality that relates to “the components of the people who live in the state” and the question of citizenship. Melcer quoted Prof. Menachem Mautner, who champions recognizing an inclusive “Israeli” identity component as a constitutional precept, but dismissed his words as “desirable law” and not “existing law.” The fact that the state has defined itself constitutionally as “Jewish” negates the possibility of recognizing an Israeli “nationality.” In his words, there is “Israeli citizenship,” but “citizenship is one thing, and nationality is another.” Uniting these separate concepts into an Israeli “nationality” would, he said, contradict the Jewish and even the democratic character of the state.

Indeed, the Population Registry distinguishes between citizenship and nationality, the latter encompassing an ethnic concept of nationality, and it’s possible that efforts to unite them is “desirable law.” But one must consider the significance of this distinction when it is taken together with the constitutional definition of the state as a Jewish state. Even though Melcer stressed that his ruling does not derogate from the obligation of the state to grant equality to all its citizens, residents and those under its control, without regard to nationality, race, religion or gender, in Israel the significance of choosing the ethnic definition of “nationality” and the distinction between the elements of citizenship and nationality fixes the concept in a way that is fundamentally unequal.

Among democratic countries there are those who relate to the elements of nationality and citizenship as overlapping — France, for example. There are those who explicitly declare its citizenship to be the union of a number of groups, such as Belgium, whose constitution states that the country is composed of three groups, the Flemish community, the French community and the German-speaking community. Either of these approaches could have been chosen for Israel. One could continue to see the State of Israel as expressing the self-determination of the Jewish-Israeli people, but to be democratic this would have to be based on a philosophy of civil equality, or as a partnership between several groups.

But in Israel the separation between the citizenship element and the nationality element, taken with the identification of the state with one specific national group, creates a hierarchy and exclusion, which is expressed not just on the level of symbols and declarations, but also in terms of allocating resources, governmental power, jobs, discrimination (formal or informal) and the need to indicate in the Population Registry who is a Jew and who isn’t, which the ruling addressed. The distinction between citizenship and nationality ostensibly justifies and rationalizes discrimination and exclusion.

One may ask if the court is indeed the appropriate body to make the revolutionary declaration of the existence of an Israeli nationality. But unlike the District Court, which stressed that it was not taking a stand on the essence of the matter, the Supreme Court chose to reject this possibility altogether, and in Melcer’s ruling even said that such a possibility contradicts the constitutional definition of Israel. This is regrettable, since the distinction between citizenship and nationality, taken with the state’s being identified with only one of the national groups, will continue to obscure the possibility of having real democracy in Israel.

Subject: No Israeli nation

Please note the reaction of Uzzi Ornan: (end of article):

“In its ruling the court, in effect, agrees to totally ignore the obligations included in the Declaration of Independence, which promises full equality among all the state’s citizens, regardless of religion, race or gender,” he said.

“The government consensus that has developed ignores the existence of an Israeli people that was created with the Declaration of Independence,” Ornan continued. “This consensus enables the Jewish majority to have full control over the country and to operate not for the benefit of Israeli citizens but for the benefit of the current political majority among the Jews.”

Supreme Court rejects citizens’ request to change nationality from ’Jewish’ to ’Israeli’

Court rules against change in identity card registration, citing that there is no proof of the existence of a uniquely ’Israeli’ people.

By Revital Hovel | Oct. 3, 2013 | 5:30 AM | http://www.haaretz.com/images/icons/comment.png10

The Supreme Court on Wednesday rejected a request by a group of Israelis to declare that they were members of the Israeli people and to allow them to change the ethnic registration on their identity cards from “Jewish” to “Israeli.”

The court ruled that the issue was not one for the court to decide and that there was no proof of the existence of a uniquely “Israeli” people. The court’s ruling echoed that in a similar case 40 years ago.

The decision by court President Asher Grunis and Justices Uzi Vogelman and Hanan Melcer upheld the 2008 ruling by their colleague, Noam Sohlberg, who, as a Jerusalem District Court judge, had rejected the group’s petition.

Israel does not recognize “Israeli” as an ethnic group [in Hebrew le’om.] The term can be translated into English as “nationhood,” but in the sense of ethnic affiliation, rather than citizenship. The le’om attrribution - the main ones are “Jewish” and “Arab” - is assigned by the Interior Ministry, regardless of the card-bearers preference.

The main appellant was Prof. Uzzi Ornan, a linguist who has long battled to separate religion and state. Ornan, 90, was born and raised in Jerusalem. He was expelled to Eritrea in 1944, when his underground activities were revealed to the British authorities. When he returned to Israel in 1948, he was registered in the state’s first census and insisted that he not be listed as “Jewish.” Instead, he wrote that he was of no religion and gave his ethnic designation as “Hebrew.” The newly-formed Interior Ministry accepted this without question.

In 2000, Ornan petitioned the Interior Ministry to be registered as an ethnic “Israeli,” but his request was rejected and none of his subsequent legal actions were successful. In 2007, he submitted another appeal to the Jerusalem District Court, together with Uri Avnery, Shulamit Aloni, Prof. Itamar Even-Zohar, Prof. Yosef Agassi, singer Alon Olearchik, playwright Joshua Sobol and others.

In his ruling rejecting the appeal, Sohlberg stated, “the requested declaration has a public, ideological, social, historic and political character – but not a legal one. This isn’t a technical issue of registration in the Population Registry, but a request that the court determine that in the State of Israel a new peoplehood has been formed, common to all its residents and citizens, called ‘Israeli.’ This issue is a national-political-social question and it is not the court’s place to decide it.”

The group argued in its appeal that an Israeli people was formed with the establishment of the State of Israel and that rejecting the existence of such a people is like rejecting the existence of the State of Israel as a democratic, sovereign state. They added that this was indeed a legal question that the courts could not avoid. In their response, the Interior Ministry and the attorney-general supported the district court decision, saying the issue was not justiciable.

The primary precedent on which the justices based themselves in their ruling Wednesday was the case of Dr. Georges Tamarin, who immigrated to Israel in 1949 from Yugoslavia. He was registered as being of Jewish ethnicity, but in the religion section was listed as having no religion.

In 1970, after a change in the law that forbade listing someone as being “Jewish” in either the ethnicity or religion section if he didn’t meet the description of a Jew in the Law of Return, Tamarin went to court to change his ethnic designation to “Israeli.” Both the Tel Aviv District Court and the Supreme Court rejected his request, stating that for a person to declare that he belongs to a given ethnic group, there had to be proof that the group exists. Court President Shimon Agranat stated that “there is no significance to the person’s subjective feeling of belonging to a given ethnic group, without being able to establish via any criteria that such a group exists.”

Ornan expressed his disappointment with the ruling. “In its ruling the court, in effect, agrees to totally ignore the obligations included in the Declaration of Independence, which promises full equality among all the state’s citizens, regardless of religion, race or gender,” he said.

“The government consensus that has developed ignores the existence of an Israeli people that was created with the Declaration of Independence,” Ornan continued. “This consensus enables the Jewish majority to have full control over the country and to operate not for the benefit of Israeli citizens but for the benefit of the current political majority among the Jews.”