Over the past several months, the eyes of the world have been on the massive demonstrations in Israel against the Netanyahu government’s proposed judicial “reform.” Even though Palestinian citizens of Israel are likely to be the group most affected by the proposed changes, they have been notable for their absence, for the most part, from the weekly protests in the streets. While Jewish citizens are worried about what the proposed changes might mean for Israel’s judiciary and the future of its democracy, the Supreme Court and the legal system more broadly have long failed to protect the rights of the country’s Palestinian citizens.
The judicial reform, as the government refers to it, is a proposed series of changes to the judicial system and the balance of power among state institutions. In particular, the changes would give the coalition government effective control over the appointment of justices to the Supreme Court and limit its power to review and annul laws that violate the country’s so-called “Basic Laws.” In the absence of a written constitution, the 13 Basic Laws were intended to provide quasi-constitutional protection for fundamental human rights. The enactment of the Basic Laws on Human Dignity and Freedom of Occupation in 1992 began what is known as the “Legal Revolution” of the 1990s, led by former Supreme Court President Aharon Barak. As part of that series of cases, the Supreme Court in Israel assumed the role of a constitutional court, with the power to strike down any law that contradicts the Basic Laws.
The Basic Laws were intended to help fill a significant gap in the Israeli legal structure, namely the absence of a guarantee of equal rights for all citizens. As a result of the 1990s legal revolution, the Supreme Court, in several milestone decisions, applied the principle of equality, which indirectly provided rights for groups that otherwise would not be protected or recognized by a majority in the Knesset. These changes, together with the judicial recognition of equality, have led to favorable outcomes in cases regarding vulnerable groups, including women, religious minorities, and LGBTQ citizens, resulting in “protective legislation” for some of them.
There are some instances in which the Supreme Court has used the Basic Laws to protect Palestinian citizens of Israel. For example, in the case of budgets for religious services, following a petition for equal funding for Arab religious communities from Adalah, an independent human rights and legal center focusing on Arab minority rights in Israel, the Supreme Court struck down the government policy that discriminated against Muslim religious institutions and ordered the Ministry of Religious Service to provide equal budgets for Muslim institutions. Similarly, following another Adalah petition challenging the discriminatory appointment of educational psychologists in Arab Bedouin schools in the Naqab, the court ruled against discrimination in the field of education and ordered the government to provide equal rights for Arab schools.
However, such comparatively minor judicial protection has failed to benefit Palestinian citizens of Israel on many levels and has not provided any real solution to the major forms of discrimination that they face. The Basic Laws on Human Dignity and Freedom of Occupation cannot be applied retroactively, and this has prevented them from addressing most of the historical injustices Palestinian citizens of Israel have suffered since the establishment of the state and that continue to define their inferior status. This is especially true in regard to the dispossession of their lands and properties during the first year after the establishment of the state (1949). The Supreme Court has also approved discriminatory laws that were enacted before the Basic Laws, such as the Citizenship Law of 1952, which grants the right of return to Jews only. In 1950, the Law of Return granted automatic citizenship to any Jew who wishes to move to Israel, even those who have never been to Israel, do not speak Hebrew, and have no connection to the state. By contrast, Palestinians whose families lived on the land for generations before the founding of the State of Israel, even if their families continue to live in what is now Israel, do not have the same right of return.
The Supreme Court has also failed to provide justice in several key cases over the past 25 years, such as those regarding the status of the Arabic language (1997), the refusal to recognize 35 Bedouin villages (2000), the Arab family unification ban (2003), and the Beer Asaba (Beersheba) Great Mosque petition (2006). These are only some of the examples of cases where basic legal protections were not extended to Arab citizens.
Therefore, unlike Jewish citizens, who know the Supreme Court has frequently acted to protect their rights and feel impelled to go out in the streets and demonstrate to uphold the system, Arab citizens have never felt that the Court had their backs. It is no wonder they are not out protesting. The Court has not been a guardian of their rights. For them, a “return” to the situation before the reform was introduced is not acceptable, and they have long demanded fundamental changes to the status quo.
Finally, Arab citizens know that the issues that concern both the Jewish protesters and the Netanyahu government are fundamentally different from those that preoccupy them. They demand equality, an end to the occupation, and serious efforts to combat the growing spread of violence and crime in Arab communities. Issues like racism, discrimination, and the occupation are not on the protesters’ agenda, and thus many Palestinian citizens of Israel do not see themselves as part of this struggle. They are not only opposed to this particular government but against the broader regime that continues to disfranchise them, fails to recognize their rights, and treats them as second-class citizens. They want equal citizenship — and nothing less. They have faced these problems long before the judicial reform was introduced and will likely continue to face them even if it is canceled.
Dr. Morad Elsana is a Law & Society scholar and professional teacher at the American University in Washington, D.C. His research focuses on human rights, indigenous peoples’ rights, and the Palestinian minority in Israel. Dr. Elsana is the author of several academic articles, op-eds about the Palestinians citizen of Israel, and a book “Indigenous Land Rights in Israel: A Comparative Study of the Bedouin.”
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