Israel’s High Court Judges Are Playing Dumb About the Nation-state Law

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Attorney Hassan Jabareen, right, representing High Court petitioners against the nation-state law, 2020.
Attorney Hassan Jabareen, right, representing High Court petitioners against the nation-state law, 2020. Credit: Shelo Shalom

“Why is this so painful?” Supreme Court Justice Isaac Amit asked attorney Hassan Jabareen, who was representing the Higher Arab Monitoring Committee, during last week’s High Court hearing on several petitions against the nation-state law. Amit’s question was referring to the status of Arabic in the law, which turned it from an official language into a “special” one. Of course, he prefaced his question by politely explaining that he was “just asking, not expressing an opinion.”

There’s something outrageous about this seemingly minor query, maybe because God is in the details. What is Amit actually asking? What isn’t clear to him? Does someone have to explain to the honorable justice that the nation-state law – the 2018 Basic Law on Israel as the Nation-State of the Jewish People – discriminates against the country’s Arab citizens? Obviously not. Had Amit needed such an explanation, he wouldn’t have gotten through his first year of law school. So why play dumb?

Amit knows very well that the principle of equality wasn’t omitted from the law by accident, nor is it just a coincidence that it’s impossible to find a Knesset majority for passing a Basic Law on Equality. He knows that discrimination against Arabs in Israel isn’t just a by-product of the nation-state law but its main purpose – that discrimination is the essence of the law: enshrining Jewish superiority and Arab inferiority.

So why did Amit fake intimacy with Jabareen and inquire about his feelings as if he were a guidance counselor rather than a Supreme Court justice, and as if the only change that had occurred was in the lawyer’s emotions rather than Israel’s Basic Laws? Why add the insult of playing dumb to the injury of supremacy, especially when everyone knows what the idea behind the nation-state law is, what its goals are, whom it seeks to exclude and whom to exalt? Why lie?

Amit isn’t alone. Supreme Court President Esther Hayut also had a question. The justices spoke repeatedly about “valid interpretation.” In layman’s terms, this means that if it’s possible to interpret the law in a way that upholds the principle of equality, the law doesn’t fundamentally contradict the principle of equality, and therefore it doesn’t clash with the Basic Law on Human Dignity and Liberty, and therefore there are no grounds for overturning it.

When attorney Firas Azem, another petitioner, asked the necessary question about Article 7 – “What possible interpretation could an article about ‘encouraging Jewish settlement’ have other than encouraging Jewish settlement but not non-Jewish settlement?” – it was Hayut’s turn to vie for person of the year at playing dumb. “The question is whether this is at someone else’s expense, or whether the principle of equality is preserved when it comes to state resources,” she said. “That’s exactly the question.” All you can say to that is, “yeah, right.”

Throughout the hearing, the justices basically said, “Why are you making such a big deal out of this law? After all, it doesn’t change anything in real life; it’s just a snapshot of reality.” Of course, this is patently ridiculous – and I mean really ridiculous, and really patently.

First, if it’s that trivial, why was it enacted? Second, if the situation de facto is institutionalized discrimination against Arab Israelis, how does it help them for the state to frame this “snapshot of reality” de jure and hang it in front of their noses?

There was something addictive about watching the hearing – about seeing the Supreme Court justices, the crème de la crème of Israel’s legal elite, sitting there and splitting hairs, their faces covered with masks, distorting the most basic terms in their field’s lexicon for the sake of justifying nonintervention in the nation-state law. Asking questions without expressing an opinion.

How did they fail to understand that it wasn’t just the terminology they were distorting, but also themselves, what lies inside them? And that they were becoming idiots before our very eyes as the lie eroded them from within?

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