High Court Refuses to Rule on Legality of Nakba Law

Justices say they cannot rule until gov't tries to enforce law against 'catastrophe' commemoration.

The High Court of Justice yesterday rejected a petition against the so-called Nakba Law, which imposes financial sanctions on state-funded bodies that commemorate the Nakba, but said it might revisit the issue once the law actually starts being applied.

The law allows the finance minister to slash the state funding of any organization that either rejects Israel's existence as a Jewish and democratic state or marks Israel's Independence Day as a day of mourning.

Nakba - literally, "catastrophe" - is the Arabic term for Israel's creation in 1948, and Palestinians and Israeli Arabs observe Nakba Day as a day of mourning every year on May 15, the date Israel was established according to the Gregorian calendar.

The petition charged that the law infringes unduly on freedom of expression, as well as on the Arab minority's right to cultivate its own historical memories and narratives, and that it thereby discriminates against this minority. It also argued that commemorating the Nakba is not tantamount to denying Israel's right to exist; Nakba Day simply recalls the historic tragedy that befell the Palestinians at that time.

The court agreed that the law raises important questions, but said the petition was premature, as so far, no organization has actually been sanctioned under the law, making it impossible to tell how the law will be applied in practice.

The law lays down a multistage process that must be followed to deprive organizations of their funding. This includes preparing a legal opinion, holding a hearing for the affected organization and obtaining the consent of the minister whose ministry oversees the agency in question.

The state, in its response to the petition, noted that this process has never yet been applied; thus the petitioners were assuming worst-case scenarios that might never come true.

Justices Miriam Naor, Dorit Beinisch and Eliezer Rivlin concurred, and therefore rejected the petition as premature without discussing any of the constitutional issues it raised.

"I'm not expressing any opinion at this stage about the process laid down in the law or the constitutionality of the law," Naor wrote for the court. "But at this stage, in which the law and the process it stipulates have not yet been applied, we shouldn't, in my view, engage in guesses and speculations about how the law will be applied."

In a concurring opinion, Beinisch wrote that "the law's constitutionality depends to a great extent on how its instructions are interpreted, and that will become clear only once it is applied."

But attorney Dan Yakir of the Association for Civil Rights in Israel, which was one of the petitioners, charged afterward that the court ignored the law's chilling effect - the fact that organizations are likely to censor themselves out of fear of running afoul of the law. "Because the law's wording is so broad and vague, there's a serious fear that state-funded organizations will practice self-censorship to avoid this risk," he said.