Chilling effect of the Nakba Law on Israel's human rights
The court ignored the infringement of free speech stemming from the very existence of the law, as opposed to one stemming from the law's application.
By rejecting the petition calling for the repeal of the Nakba Law in January of this year, the High Court of Justice ignored the violation of human rights inherent in the danger that institutions may now preemptively refuse to fund activities that involve the exercise of free speech, for fear of financial sanctions.
The High Court argued that time was not yet "ripe" for such a request in its ruling against the petition filed by the Association for Civil Rights in Israel and Adalah, the legal center for Arab minority rights. The Nakba Law grants the finance minister the authority to impose harsh fines on government-funded organizations that budget expenses for (among other things ) marking Independence Day as a day of mourning.
"The petitioners request the repeal of sections of the law that have not yet been used by the finance minister, and there is no way of knowing whether, when and under what circumstances he will use the authority granted to him," the decision read.
Since the petition was rejected with the argument that it was premature, the High Court did not hold any sessions on the substantive issues the petition raises, despite the court's noting that they "are likely in certain situations to go to the root of problems dividing Israeli society."
"Nakba" ("catastrophe" in Arabic ), is a term used to describe the suffering of Palestinians, including the 700,000 who lost their homes, in the war that led to the establishment of the State of Israel. The short decision, just 19 pages, not only failed to address arguments that the Nakba Law infringes on the Palestinian Arab minority's right to free speech and equality with regard to its historical memory; it also refrained from dealing with the important argument raised by the petitioners: the chilling effect of the law on carrying out various activities for fear of financial sanctions.
The decision analyzed at length the legal mechanism of sanctions short of fines available to the finance minister (as opposed to the effects of his decisions ), even without imposing such fines.
Four months after the High Court handed down its decision, a group of students at Tel Aviv University sought to hold a ceremony marking Nakba Day in which they would offer an alternative memorial, including a moment of silence.
The dean of students approved the event, but the university's security department announced that organizers would have to hire at least six ushers to maintain order. This was the first time that the university requested organizers of events on campus to fund security out of their own pockets, and it cited the Nakba Law as a reason.
The question of how the finance minister would apply the law, cited by the High Court, did not enter the equation, since the university preemptively refused to fund the ceremony on the campus. The court completely ignored just such an occurrence: the infringement of free speech stemming from the very existence of the law (for example, if the students had decided to cancel the ceremony because they could not afford to hold it ), as opposed to one stemming from the law's application. This is the law's chilling effect.
Prof. Menachem Mautner, who holds the Daniel Rubinstein Chair of Comparative Civil Law and Jurisprudence at the Buchmann Faculty of Law at Tel Aviv University, took the ramifications of the court decision even further. In an article that appeared in the Hebrew edition of Haaretz in January, Mautner accused human rights organizations of doing injury to the goal they were promoting. Mautner argued that when such organizations filed general petitions seeking the repeal of laws that were not based on concrete administrative decisions (with regard to the Nakba Law - decisions of the finance minister to impose fines ), they then move the court to reject them, with the result that the defense of human rights is reduced.
Like the High Court, Mautner does not take into account the serious infringement of human rights that stems not from the imposition of fines on a government-funded organization by the finance minister, but from the likelihood that the institution will preemptively refuse to fund activities that realize the right to free speech, since they may lead to fines.
This effect is not limited to the Nakba Law. It is possible, for example, that Arab citizens will refrain from seeking to live in Jewish communities requiring an application process to avoid the humiliation of being rejected for the ambiguous reason, currently permitted by the Admissions Committees Law, that they are unsuited "to the lifestyle and social fabric of the community."
If such a rejection were examined in a judicial proceeding, it would be overturned, as it was in the case of the Zubeidat couple who applied to live in Rakefet. The wait for concrete instances will end in concrete and substantial damage to human rights that we will never even know occurred.