[During the hearing, the High Court justices saw no problem with
demoting the status of Arabic and claimed that equality is something
best left for the future. ] [[link removed]]

THE ISRAELI NATION-STATE LAW HAD ITS DAY IN COURT  
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Orly Noy
December 24, 2020
+972 Magazine
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_ During the hearing, the High Court justices saw no problem with
demoting the status of Arabic and claimed that 'equality' is something
best left for the future. _

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Two-and-a-half years after the Knesset passed the Jewish Nation-State
Law
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which constitutionally enshrined second-class status for Israel’s
Palestinian citizens, the High Court of Justice held its first hearing
on the law on Tuesday.

As has become customary in hearings in which the farce of Israeli
“democracy” is at stake, the setting was perfect: on the bench sat
an expanded panel of 11 justices headed by Supreme Court President
Esther Hayut, while the hearing was broadcasted live on the internet.
Because the law was petitioned by 15 different groups and individuals,
and due to COVID-19 restrictions, it took over an hour for people to
assemble in the hall.

The range of petitioners was varied: along with the petitions of the
Arab public leadership, the Association for Civil Rights in Israel
(ACRI), and Meretz, petitions were filed on behalf of individuals and
groups, Arabs and Jews — including one religious Zionist family and
a “Jewish” petition against the law, which argued that the it
contradicts basic Jewish values. Some petitioners sought to
“amend” certain clauses in the law, others wanted to add to it a
clear commitment to civic equality, with others hoped to abolish it
altogether.

There was also the Mizrahi petition
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which I had the privilege of being among its initiators and
signatories, and which argues that the law erases Mizrahi cultural
legacy while perpetuating injustices against Jews who hail from Arab
countries as well as Palestinian citizens of Israel.

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As expected, the two sections of the law that drew the most fire were
Section 4, which concerns the official demoting of the status of the
Arabic language
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and Section 7, concerning the “encouragement of Jewish
settlement”
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a value that the state is obligated to promote.

Already at the opening of the hearing, Hayut clarified that the High
Court is concerned with whether or not it even has the authority to
repeal a Basic Law [the equivalent of a constitutional amendment] and
— assuming there is a reason to do so — whether the law itself can
be interpreted in a way that is consistent with the values of
democracy.

Israel does not have a constitution, but rather a set of basic laws
that function as a kind of bill of rights. For years, various Israeli
politicians have championed the creation of a formal constitution,
although this has never gained enough political traction to become
reality.

The first to speak was Atty. Samer Ali, who represented the Druze
community’s petition against the law. While the Druze have been a
minority group that has never questioned the Jewish-Zionist identity
of the state and fully cooperated with it from its earliest days, the
Jewish Nation-State Law was a breaking point for many in the
community.

Ali repeatedly spoke about the “blood oath”
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the Druze public and the state, and the price Druze citizens pay for
that oath. “There is no legislator that can contradict this blood
oath for 70 years by categorizing the Druze today as citizens with no
identity and no self-representation,” Ali said. “We identify with
the symbols of the state, with the flag, we have never had a
separatist claim, we have never questioned the Jewish identity of the
state. The members of the community have played an integral part in
building the resilience of the State of Israel from its first
years.”

Ali ended on a more personal anecdote: “This morning, my son, a
soldier, drove with me. When he stepped out of the car, he asked me,
‘Dad, is there a chance I’ll go back to being a first-class
citizen again today?'”

After two more petitioners came the turn of Atty. Hassan Jabareen
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the director of Adalah — The Legal Center for Arab Minority Rights,
who petitioned the court on behalf of the Arab Higher Monitoring
Committee, an extra-parliamentary body that represents Arab citizens
of Israel and coordinates activities among various Palestinian groups
in Israel, as well as the heads of the Arab local authorities and the
Joint List. In effect, this was the lead petition.

“For the first time since 1948, the court is tasked with the
question of the status of the Arab minority in Israel,” Jabareen
said. “We are not asking the court to determine the scope of our
rights, but to answer one question and one question only: what does
the exclusion of the Arab minority in the Basic Law mean?”

Jabareen combined legal arguments with normative and ethical ones.
Among other things, he mentioned that all Basic Laws that have been
passed so far have received support from across the political
spectrum. The Jewish Nation-State Law is the first that has
opponents _among_ the coalition — that is, by Arab members of
Knesset.

Throughout his remarks, Jabareen was repeatedly interrupted by the
justices. When he argued that the clause encouraging Jewish settlement
violated the principle of “separate but equal,” Hayut responded:
“The fact that Jewish settlement is perceived as a national value
does not mean that there should be no equal allocation and legitimate
civil rights for others.” Justice Menachem Mazuz followed: “The
value of settlement already appears in the Declaration of
Independence; it must not harm the value of equality.”

As if Israel does not have a history of over 70 years of
discrimination, in which hundreds of towns, cities, and villages were
established for Jews while not a single new locale was built for
Palestinian citizens. As if Palestinian land was not expropriated for
constructing Jewish communities. As if Umm al-Hiran
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never been demolished to build the Jewish settlement of Hiran on its
ruins.

“The value of settlement is a Zionist value, one of the values on
which the Zionist state was founded. It also has status,” Hayut
said. Mazuz offered his own rejoinder: “You assume a conflict
between two values. I do not see a conflict: the fact that the state
will encourage Jewish settlement does not conflict with the right of
every citizen to live wherever he wants, receive allocations, etc.”

When Jabareen mentioned that the city of Nazareth Illit was built on
land belonging to Arab citizens, Hayut tried to reassure him: based on
this law, she says, it is impossible to expropriate land from Arabs.

The same feigned innocence was demonstrated by the court when it came
to arguments regarding the violation of the status of the Arabic
language. “The law takes the existing situation and says that what
was [in the past] will remain,” Justice Yitzhak Amit said. “[The
lawmakers] wanted to say a trivial thing: that Hebrew is the dominant
state language, and because of the lack of clarity around Arabic, they
said [it has] ‘special status’. What’s the difference? Why is it
so painful that it is special and unofficial?”

To this Jabareen replied: “Because there is a violation of
convention here. The rules of the game have changed. My language, at
least formally, has maintained its status from the time of the
Ottomans until the 20th Knesset. Language was the only collective
right [afforded to] the indigenous minority in its homeland.”

“To violate this status constitutionally is not a change? The Arab
is an Arab because of his language!” Jabareen continued. “That is
what unites the Christian, Muslim and Druze Arabs. So the fact that
there are 61 MKs [in favor of the law] means it can be harmed? And
only Jews! Jews are imposing a new constitutional identity on Arabs
— isn’t that a problem? That’s where the discussion ends?
Because 61 Jewish MKs made a decision?”

‘WE HAVE BEEN BETRAYED BY THE STATE’

One of the main arguments put forth against the Jewish Nation-State
Law is the absence of the word “equality.” To this, Justice Hanan
Melcer responded with the following creative answer: “Every Basic
Law is a chapter in a future constitution. [The Jewish Nation-State
Law] is a chapter and Basic Law: Human Dignity and Liberty is a
chapter. If necessary, clarifications will be made about equality.
This needs to be seen as part of a whole. Perhaps in a future
constitution there will be a chapter about the protection of
minorities.”

Atty. Eitay Mack
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represented the petition against the law in the name of Jewish values,
responded to Melcer: “So freeze these parts [of the law] until the
next chapters are legislated.”

Atty. Ali Shakib, another Druze petitioner, also referred to
Melcer’s comment: “We have been talking about a constitution that
will be established in the future for the last 70 years, we do not
know when that will happen. The Jewish Nation-State Law is a
foundational law in which the value of equality must be anchored.”

Tens of thousands of protesters joined the Druze community in
rejecting the Jewish Nation-State Law at Rabin Square in Tel Aviv on
August 5, 2018. (Oren Ziv/Activestills.org)

“Jewish students who are educated on this law that has already
entered the [schoolbooks] are going to be raised on [the idea of] a
Jewish state alone,” Shakib continued. “There is not a word on
minority rights; it is a badge of shame for the State of Israel. This
law cannot be saved by interpretation, it will not benefit the Jewish
public consciousness. It is doubtful whether Jewish students who are
educated on this law will be willing to accept Arab citizens at all in
the future.”

“This will be the first law in the constitution of the state of the
Jewish people,” he added. “It is precisely the Jewish people, with
their history, that must ensure the opening of its constitution [by
enshrining] minority rights. As a Druze I say: we have been betrayed
by the state, but I do not think the state should legislate for the
Druze. Every form of sectorial legislation is unacceptable.”

MIZRAHI SOLIDARITY

When it was the turn of Atty. Neta Amar Schiff, who represented the
Mizrahi petition against the Jewish Nation-State Law, the justices
lost whatever remnants of tolerance they had shown thus far,
repeatedly and rudely interrupting her. “Of all the petitions, this
is the most incomprehensible,” said Amit.” One struggles to see
how this law is discriminatory against Jews.”

And really, how does a Mizrahi explain to the court that she
both benefits and is a victim of the state’s racial hierarchy
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After all, in Israel the victims must always be Jews, and this law
puts Mizrahim on the “right” side of the victimhood equation. So
by what right can we claim to face injustice?

“Our petition emphasizes the Archimedean point, which establishes
our right to examine the law from our point of view,” Amar-Schiff
explained. “Language is a cultural stamp. It creates reality through
the speech act. Language creates consciousness. It is not an
independent entity; its existence depends on its speakers.”

“The Jewish Nation-State Law is intended to make present the rights
of one group at the expense of another group, based on language,”
Amar-Schiff went on. “The Arabic language cannot be separated from
its speakers, including my Arabic-speaking grandmother. Arabic is an
integral part of Judaism, it is my language as person who is of this
place. Arabic is part of the Jewish identity of the descendants of
Islamic countries. It is different from any other language because
there was a special active effort to erase it among Mizrahim. It is
the language of this place, the Mizrahim came from one Arab region to
another, it is not an immigrant language.”

“The damage is already here,” she concluded. “Every entrenchment
of the existing situation is an entrenchment of the damage, another
hammer in the head of all those Jews who want to erase the shame,
connect to the region, to the Arab citizens — and cannot. Shame and
humiliation accompany the Arabic language.”

Mazuz responded: “You are piggybacking. What could you do yesterday
that you won’t be able to do tomorrow [as a result of this law]? How
does this harm a Jew whose grandparents were born in an Arab country?
How is demoting [the status of Arabic] relevant to the cultural lives
of those with origins in Arab countries and who want to maintain their
Arabic language and culture?”

The fact that this remark came from Mazuz, who was born in Tunisia,
was particularly jarring. That he does not understand the connection
between the suppression of the Arabic language and Arab identity and
the historical oppression of the Mizrahim in Israel perfectly
encapsulates the tragedy of Mizrahim in Israel.

Before the court adjourned for lunch, the Knesset’s legal
representative presented her response to the petitioners’
allegations. Her starting point was simple: the High Court cannot
intervene in basic laws at all.

This led to an entire discussion around the question of the “extreme
cases” that justify judicial intervention. In the past, the justices
have repeatedly used the example of the denial women’s suffrage, as
if there aren’t currently members who try to deny the right of
Palestinian citizens to vote.

Justice Melcer reminded the Knesset’s legal representative that
according to the Declaration of Independence, the state will strive to
develop the country for the benefit of all its inhabitants, and that
Section 7 deviates from this principle. To that she responded
laconically: “Some members of Knesset expressed concern that the
value of settlement as a national one would be perceived as
illegitimate. If there is no dispute that the value of settlement is a
national one, what is the problem with anchoring it in the law?”

The highlight of the Knesset representative’s rhetorical stunts came
in response to the demotion of Arabic. “The law establishes a
special status for Arabic! In a basic law that deals with the national
Jewish identity of the state, the Arab minority has been granted a
special status for its language! It is actually an upgrade, not a
demotion!” she argued passionately.

After six hours of cynical, frustrating, and largely predictable
discussion, I left the High Court of Justice. On the floor in the
courtyard I found the remains of a demonstration by far-right
activists belonging to the Im Tirzu
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which had taken place there earlier. One of the signs read: “The
Supreme Court is the enemy of the people.” The irony was almost too
much to bear.

_This article was first published in Hebrew on Local Call. Read
it here
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_Orly Noy is an editor at Local Call, a political activist, and a
translator of Farsi poetry and prose. She is a member of
B’Tselem’s executive board and an activist with the Balad
political party. Her writing deals with the lines that intersect and
define her identity as Mizrahi, a female leftist, a woman, a temporary
migrant living inside a perpetual immigrant, and the constant dialogue
between them._

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