Opinion

Israel's High Court Doesn’t Defend Minorities

Liberal Zionists say the court is a defender of human rights, but it has never overruled even a single law because it harmed the rights of the Arab minority

Supreme Court President Esther Hayut, President Reuven Rivlin and Justice Minister Ayelet Shaked at the President's Residence in Jerusalem, May 7, 2018.
Mark Neiman/GPO

The attempts of the liberal Zionist camp to describe the High Court of Justice, all but uncritically, as a defender of basic rights is a central problem in the defense of human rights. It helps to camouflage Israel’s discrimination and repression, and allows the right wing to justify its laws in the name of this same language of rights: Democracy and the rule of law. The public debate over the “High Court-override law” and “Jewish nation-state law” demonstrates this very well.

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The liberals claim that allowing the Knesset to override court decisions will put an end to the power of the High Court as the last bastion protecting the rights of minorities from the aggressive power of the majority. This claim is not only factually incorrect, it hides the racist discrimination the High Court has upheld. Since the legislation of the basic laws in 1992, the High Court of Justice has not overruled even a single law because it harmed the rights of the Arab minority. The opposite is true. The High Court approved all the discriminatory laws, even when they were seen by many – including the international community – as racist and hostile to the freedom of expression of the political minority.

The High Court of Justice twice approved the most racist amendment since the legislation of the Absentees’ Property Law in 1950, an amendment that in practice bans the reunification of Arab families in Israel; the “Acceptance Committee Law”; the “Nakba Law”; raising the Knesset electoral threshold; the anti-boycott law and many more. The results show that the “constitutional revolution” has not succeeded in protecting Palestinian citizens from racist laws.

So when the liberals uncritically present the High Court of Justice as objective, the right wing responds in the name of “democracy.” Academics such as Prof. Gideon Sapir, the preeminent jurist in the right-wing camp and among the first to support the override clause, reply that the people – through their elected representatives and not through unelected judges – are meant to determine the extent and boundaries of rights, which by their nature are political and also at the heart of public dispute.

This is the case concerning the proposal for the Jewish nation-state law, too. The two values, “Jewish and democratic,” first appeared in writing in the basic laws in 1992. Even though they were the product of a compromise with the religious, the liberal Zionists along with the High Court of Justice are the ones who raised them up as their standard. They are the ones who claimed that there is no internal contradiction between these two values because it is justifiable for the State of Israel to fulfill the self determination of only the Jewish people, and this state must preserve the supremacy of the collective rights of the Jews, including the Law of Return.

Prof. Chaim Gans, one of the leading philosophers of this camp, claims that Jewish hegemony must be preserved not just in the area of demography but also in security, because the Jews are a minority in the Middle East while the Arab citizens belong to a hostile majority – the Arab world.

Therefore, the proposed Jewish nation-state law is a source of embarrassment to this camp. Almost every section of the bill adopts what was written and decided by the High Court of Justice. After all, not only did the High Court of Justice approve the acceptance committee law, it even states, in the matter of Umm al-Hiran, that relocating Bedouin to their own separate community, Hura, is permissible in order to establish the Jewish community of Hiran – and all this in the name of “multiculturalism.” So it is no coincidence that the liberals do not argue over the content of the proposed Jewish nation-state law. Instead, they claim that there is no need for this legislation. After all, the state is Jewish in practice. The right-wing camp replies to them in the name of the principle dear to them: The rule of law. Written law is preferable to ambiguity, and stability is preferable to rulings based on the political leanings of judges. In other words: “The rule of law, not the rule of men.”

So the right’s justifications for discriminatory laws are seen by a majority of the Jewish public as being more authentic, while the liberal Zionist camp is viewed as being right-wingers in left-wingers’ clothing. Or the opposite.

Hassan Jabareen is the general director of Adalah.