Almost a year ago, three terrorists opened fire and killed two police officers on the Temple Mount in Jerusalem – Staff Sgts. Maj. Kamil Shnaan and Haiel Sitawe. The terrorists were Arab citizens of Israel, from Umm al-Fahm. The police, in an effort to prevent a support rally for the terrorists at their funerals, refused to release the bodies before such conditions could be met. The High Court of Justice rejected the police's decision and determined that withholding the bodies was a human rights violation. The court ordered the bodies to be released. Some 10,000 people attended the mass funeral and chanted slogans such as: "In spirit and in blood we will redeem you, Palestine."
Most of the arguments against the nation-state law have nothing to do with the text of the law. Other arguments express an anti-Zionist agenda, whereby the fact that Israel is a Jewish national state – rather than a binational or multinational state – is racist in and of itself. One comment, however, put forth by former MK Shachiv Shnaan, the father of one of the murdered police officers, cannot go with a response. Shnaan asked why the nation-state law doesn't include an equality clause. In his view, the lack of such a clause harms him as a Druze citizen.
The question, though, isn't whether we are for equality. The question, rather, pertains to the potential legal impact of adding an equality clause to the nation-state law – on the Supreme Court's ability to intervene in governmental and parliamentary decisions. Is the scope of the court's interventionism, the type of which we saw with the release of the terrorists' bodies, already too wide, or should it be expanded further?
Some people believe the Supreme Court doesn't intervene enough in the government or Knesset's decisions and want to give it more tools to do so. They are exploiting the authentic voices of those citizens who hold the value of equality dear to expand the scope of a legal interventionism – which elevates the private rights of the families of the Temple Mount terrorists.
On the other hand, others believe the court's scope of influence and the emphasis it places on individual rights over national interests is excessive and therefore should not be extended. I believe the court's scope of influence over the Knesset's decisions is excessive.
In any case, the nation-state law is not the proper arena for this debate. The law deals with Israel's Zionist definition as the state of the Jewish people on the national level. It doesn't deal with individual rights that are already well-protected and enshrined by other basic laws. We must continue to debate the appropriate degree of High Court influence in the name of individual rights, but not when certain individuals are trying to hijack the argument at the expense of a law that has nothing to do with the matter.
It's important to note that equal rights are solidly anchored in Israeli law. The Supreme Court interpreted Basic Law: Human Dignity and Liberty as legislation that encompasses equal rights, even though lawmakers removed the equality clause from the original bill due to concerns over the potential for unbridled activism – as I explained above.
The purpose of the demand to add an equality clause to Basic Law: Israel as the Nation-State of the Jewish People isn't to establish constitutional protection for equality – because that already exists. The demand aims at something else entirely: expansion of the Supreme Court's scope of intervention. If the court has already established that equality is protected by the right to dignity, then on the basis of equality, the court could seek even broader areas in which to intervene. As stated, a considerable portion of the public sees this intervention as a violation of the people's democratic will.
