"The High Court of Justice is the sole authority in Israel that still maintains rational dialogue with the Arab minority," says attorney Hassan Jabarin, the director of Adalah, the Legal Center for Arab Minority Rights in Israel.
Jabarin is referring to the court's glimmer of recognition of the rights of Israel's Arab minority that is reflected in the reinforcing of the collective rights intended to preserve its identity and character and religious and cultural differences. Adalah attributes this accomplishment, which has evolved over the last decade, to "the Barak court."
"Before then," says Jabarin, "the High Court of Justice did not accept a single petition that asked for equality for the Arab minority. It did not relate seriously to the issue of equality for the Arab minority as a judicial issue requiring court measures. If you argued discrimination, they would throw you out. Adalah's contribution, as a human rights organization, was to convince the court that the rights of a national minority are human rights. In so doing, we attained certain accomplishments. In addition, during the Barak era, two Arabs have served as acting judges on the Supreme Court and one of them Salim Jubran, was selected for a regular term."
The generous attitude toward Arab minority rights can be attributed to other factors besides "the Barak court": the spirit of the liberal Basic Laws and the strengthening of the values of equality and freedom of expression they promoted; the spirit of appeasement resulting from the Oslo Accords; and a no less important factor - the reinforcing of the organizational and legal power of the Arabs to translate all of the above factors into well-formulated petitions.
Some of the collective rights of Arabs in Israel are the result of legislation and policy: the Arabic language is an official state language, the education system is separate, Arabs are given a collective exemption from compulsory military service and the Arab population has the right to separate judgment for personal status cases.
The rush to court to expand and deepen the rights was intended to achieve equality in budgets (for example, for Muslim cemeteries) and affirmative action. Following a Supreme Court ruling, the Arabs received formal recognition of their right to adequate representation in the civil service, in the directorates of government companies and agencies.
The Civil Service Law was amended and Arabs joined women and the disabled on the list of those eligible for and entitled to affirmative action. A really revolutionary ruling in the matter of Adel Kadan, who sought to live in the community of Katzir, prohibited the state from discriminating against Arab citizens in the distribution of lands. On the other hand, when a decision was made to build special settlements for the Bedouin population, the Israel Lands Administration rejected a petition from a Jew seeking to move to Rahat and the High Court of Justice approved this, among other reasons, because the affirmative action that enables the construction of such settlements is a meant to be a matter of equality and not a violation of that.
Fear of a slippery slope
However, one cannot see the court as the one and only front. Dr. Ilan Saban, of the University of Haifa law department, analyses the ruling that in July 2002 expanded the right to a language when in it required the Tel Aviv Municipality and the Public Works Department to also add the Arabic language to signs in areas where there is no Arab population. Behind the legal explanations, Saban argues, the national and ideological conflict was exposed: "broadening the collective rights of the Arab-Palestinian minority in the area of language was perceived in the State Attorney's Office as `a slippery slope," which might lead to the transformation of Israel into a binational state.
But both Saban and Jabarin feel that the court is limited as to the length of the helping hand it can extend to the Arab minority. "The court cannot institute change," says Saban, "only offering `a bridging vision,' promote the side of democracy a little in the Judaism-equality balance, but without making any decisions that will present a real threat to the Jewish-Zionist paradigm. This, because the judges themselves are Jewish Zionists and because of the fragility of the Supreme Court and the weakness of the defenses protecting it in the political culture, in the basic judgment law and in the structure of the regime."
The Arab minority in Israel is not a normal minority fighting for its rights against the majority. In Israel, this minority lives in a doublly impossible reality: the country of its citizenship (Israel) is engaged in a bloody conflict with its people (the Palestinians); moreover, the state's definition as a "Jewish" one has ramifications for the ongoing deprivation of the Arabs and even for their classification as "second class" citizens. And indeed, the October 2000 riots in the Arab sector that were investigated by the Or Commission, reflected a reaction to these two situations. The riots were not limited only to a civil protest against the social gap and the discrimination, but were primarily a national expression of identification with the intifada in the territories, bordering on civil revolt.
This trend is headed in the Arab population by two entities that are hostile to each other: the traditional religious leadership, led by Raed Salah, and the young secular leadership, whose main spokesman is Dr. Azmi Bishara, MK (Balad). Bishara is the political equivalent of his attorney, Hassan Jabarin. One wages his battles in the Knesset and in the media and the other in the courts. Both are well-versed in the tools of democracy and are able to successfully use them to often embarrass and challenge the Zionist-Jewish consensus.
Jabarin represented Bishara and his party, Balad (the National Democratic Alliance) in a Supreme Court petition that attacked the Central Election Committee's decision to disqualify their participation in the most recent Knesset elections. By a majority of seven to four, the petition was accepted. "Our legal strategy," says Jabarin, "was to cause the court to directly address the issue of `a state for all its citizens.' We knew that it was unwilling to tolerate international criticism if it disqualified such a formula. What was important to the court, and rightly so, was its self-image. It did not want to be the first court in the world that disqualified a list because of a liberal-universal platform." In contrast, Dr. Saban feels that this was a courageous ruling that shows the court's efforts "to prevent the placing of the minority before a sharp distinction between passive silence and active involvement in the Palestinian armed struggle."
Of course, the court speaks in legal, and not political, language, but there is no doubt that it takes into account the broader implications of its rulings, as retired judge Yitzhak Zamir says of the Bishara case: "Even the Jewish extremists approved. The goal was to impose as few as possible restrictions on the democratic game."
A blow to consensus
Zamir is satisfied with the legal status of the Arab minority, but he is worried about the gap between rhetoric and practice, "a gap that has existed since the establishment of the state and is entrenched as fact in many official documents, for example, the Or Commission report."
Jabarin, however, is far less satisfied: "there is no formal judicial policy that relates to the issue of equality for the Arab minority, as there is for example, for women. This vague legal situation creates inconsistency in judgment. Even when things are clear, the High Court of Justice does not rush to grant assistance intended to create fundamental changes in the authorities' policy. For example, in 1998, we petitioned against the policy of classifying settlements as areas of national priority, when only four small Arab settlements were classified as Area A compared to 492 Jewish settlements, and that was without primary legislation or clear criteria. Even though an order nisi was granted, the High Court of Justice has still not made a final ruling on the matter."
Saban feels the synthesis offered by the court for the integrated legislative character of the state as a "Jewish democratic" state is the best that is currently available. And nonetheless, in his opinion, granting full equality of collective rights means a binational state and there is no chance of that happening. However, the court can, according to Saban, move closer to the minority without endangering the dominance of the Jewish majority. For example, Saban does not understand the High Court of Justice's refusal in 1999 to enforce the government promise to allow the return of the displaced people from Ikrit due to fears that this precedent would affect the Palestinians' right of return. He describes this explanation as "manipulative and false."
The discussion of the High Court of Justice's courage in rulings relating to Arabs is more complex. In addition to avoidance and quite a few rejections, the court has made several decisions that certainly struck at the Zionist consensus, and especially, the security issue. For example, the ban on shaking and torturing detainees during Shin Bet interrogations, the decision to return the Lebanese "bargaining chips" and the decision to permit Kadan to settle in Katzir. All of these cases had a light legal side and a serious political side. The prohibitions against torture, discrimination and holding innocent people hostage are clear and rational in every category of law, justice and ethics. But nevertheless, the court produced them with considerable effort, lengthy delay and after waiting for the appropriate opportunity and circumstances.
The Supreme Court and the Or Commission made several important recommendations, yet these are far from being internalized by Israeli society, says Saban. It turns out that the authorities are not really eager to implement rulings that are beneficial to Arabs. The Association for Civil Rights in Israel somehow got a copy of an internal Jewish Agency document prepared on June 29, 2000, three and a half months after the Kadan ruling. It contains a summary and in the document, a Jewish Agency team recommends bypassing the Kadan ruling. "This document," says Saban, "exposes to a large extent the expected fate of attempts to improve the status of the minority via the courts. Without a change in the political culture in Israel in a less ethnocentric and more democratic direction, without allocation of budgets and the creation of institutional and more effective enforcement mechanisms, legal changes can be expected to fizzle before they are actually implemented."
