The Panelists Prof. Ruth Gavison Dr. Ilan Saban Attorney Hassan Jabareen Prof. Ramzi Suleiman

A Decade of Adalah:
On the Recognition of “National Identities” and “Civil Equality” in Law

Attorney Hassan Jabareen

Founder and General Director of Adalah.

Thank you Ilan for your warm words. I would also like to thank the Faculty of Law of Haifa University for convening this conference. Clearly, I am not in a comfortable position to praise the work of Adalah and its impact on the legal discourse, as someone who has a direct interest in it. If I were to do so, my comments would be perceived as "self praise." On the other hand, if I were to criticize Adalah's work in some way, my remarks would sound artificial. In an effort to avoid this and remain "clean and objective," I have actually decided to begin with a description of the history of the syllabus for the course entitled, "The Arab Minority in Israeli Law," which this faculty offered for the first time in 1997. In fact, this course was the first of its kind to be offered by any law faculty in Israel. It was also Adalah's first year of existence, and I had the honor then of teaching this course. Two years later, I began to teach this course at the law faculties of Tel Aviv University and Hebrew University. The syllabus of the course in 1997 was different from the syllabi of the other courses. It was thin and meager. There were almost no articles published in legal journals about the status of the Arab minority in Israel. Therefore, instead of legal articles, the syllabus included many newspaper clippings, interviews and articles from other fields. The rulings of the Supreme Court that were included in the syllabus were mainly from the 1950s and 1960s. Thus, instead of new rulings, which were almost non-existent at that time, the syllabus included new petitions that Adalah had submitted to the Supreme Court along with the state's responses to them.

During the last decade, and as years passed, the syllabus grew and became thicker and fatter. The petitions were replaced by Supreme Court rulings and academic legal articles began to supersede newspaper clippings. New legal questions also became integrated into the course. In fact, the syllabus has now reached a critical situation. I recently received a telephone call from a colleague at one of the law faculties where I teach the course. He called to complain that, "It's a lot of material for the students. I suggest that you take some things off and shorten the syllabus." We thought together about how to carry out this task of slimming down. I'm usually bad at slimming down. The ruling on the Citizenship Law case, which discussed the prohibition on the unification of Palestinian families in the State of Israel, is the longest one, stretching over more than 200 pages. Can it be removed from the syllabus? No. After all, it is one of the most important rulings. Can it be trimmed in the syllabus? Again, no. After all, each of the justices wrote his or her own opinion and there is both a majority and minority opinion. We encountered the same difficulty with regard to several other rulings, such as the ruling on the disqualification of Arab candidates from the Knesset elections in 2003, primarily due to the demand to make the State of Israel as a state of all its citizens. This was also true with regard to the ruling on the status of the Arabic language in mixed cities, which, inter alia, addressed the question of the collective rights of the Arab minority. For our purposes here, I will refer to rulings of this type as rulings on "national identities." That is, from the justices' perspectives, these rulings dealt with the constitutional view of the State of Israel as a Jewish state. We also tried to cut from the articles. Do I have to cut my articles? No, the students have to read your articles because you are an Arab. Maybe I should cut Ruth Gavison’s articles? No, Ruth has an opposing position to yours. Maybe I should cut Ilan Saban’s articles? No, Ilan is in the middle between you and Ruth. So, where did I ultimately succeed in removing or trimming rulings from the syllabus? My victims were rulings that dealt with social and economic rights, including the classification of localities as national priority areas (for receiving benefits in education), neighborhood renewal, school dropout rates among Arab Bedouin pupils, and various budgetary issues. In these cases, there were no disagreements among the Supreme Court justices. This applied both to cases in which they accepted the petitions and to cases in which they rejected them. These rulings were handed down unanimously. I will refer to rulings of this type as "civil equality" rulings.

I want to relate to the two kinds of cases that Adalah brought in the last decade. I will first address the "national identities" rulings. In the past, and especially from the beginning of the 1980s to the beginning of the 1990s, the Supreme Court's rulings engaged in a discussion of the definition of the State of Israel as Jewish: a state based on the Jewish heritage, or on the non-Halachic and more secular Jewish heritage. The heroes of this debate were justices Menachem Alon and Aharon Barak. This discussion, which also involved the legal academia, completely ignored the main question of the implications of the state's definition as Jewish for the rights of Arab citizens of Israel . It ignored the existence of Arab citizens as both an indigenous minority and as comprising about a fifth of the total number of citizens. Anyone who reads these rulings or peruses the academic legal discussions that took place during this period could be led to believe that only Jews lived in this state.

Today, in light of the "national identities" rulings, we know that this discussion is no longer the main legal discourse on the question of "the Jewish state." These petitions compelled the Supreme Court to discuss the presence of Arab citizens. This presence led to a split among the justices – a split that is not based on disparate secular and religious values, as in the example of Alon and Barak. Note that despite the split, the legal discussion between the justices remained within the Zionist framework. Thus, for example, in the recent ruling that prohibited the unification of Palestinian families in the State of Israel, in which the Attorney General claimed that the prohibition in the Citizenship Law is based on security reasons, the majority opinion (and the opinion of Justice Cheshin in particular) endorsed the prohibition despite the lack of any evidentiary basis for it. That is, the fact that someone is a Palestinian resident of the Occupied Territories is in itself sufficient to reject a request for unification with his or her spouse who is a Palestinian citizen of Israel .

The minority opinion, led by Barak, did not reject the majority's basic value judgments, but preferred a selective prohibition that would be based on an individual examination of the facts of each case. It is no coincidence that the main dispute between the minority and majority opinions did not pertain to the question of whether the discriminatory Citizenship Law has an appropriate purpose. Instead, the disagreement focused on applying the test of proportionality, which is essentially a pragmatic test rather than one of principle. The discussion in this ruling did not directly address the issue of demography, but it was clearly the main issue behind the justices' arguments.

In the ruling that dealt with the disqualification of Arab candidates for the Knesset elections, seven justices versus four were opposed to disqualifying the candidacy of MK Dr. Azmi Bishara and the National Democratic Assembly-Balad list from running in the 2003 Knesset elections because their platform called for the transformation of the State of Israel into “a state of all its citizens”. But the majority's stance against this disqualification did not derive from the principle of full and absolute equality between Arab and Jewish citizens; the arguments of the majority, led by Barak, were based on the lack of an evidentiary basis that would confirm the disqualification. The minority position, on the other hand, sought to disqualify the candidacy even in the absence of an evidentiary basis, because of the very fact of the contradiction between Zionism and a state of all its citizens. These are the prominent examples of rulings that dealt with the issue of national identities.

What, then, is the main normative difference between the two approaches, or two camps, of the justices in the "national identities" rulings? In my view, the difference is on the pragmatic level and is not one of principle; that is, it pertains to the result that each approach or camp seeks to achieve or forestall/repel. The justices concur that the principle of prohibiting discrimination between citizens should not be accepted as an absolute principle. In addition, there is a deep-rooted consensus among them that Jewish dominance should be preserved in the State of Israel. This consensus raises the question: A Jewish majority vis-à-vis whom? The implied response is clearly the Arab citizens of the state. This logic makes it legitimate, for example, for the Jewish state to adopt measures that harm the rights of Arab citizens in order to maintain this dominance. The big question, therefore, is: "How is this to be done?" This is a question on the factual level and not on the normative-ideological level. And this question constitutes the heart of the dispute in the "national identities" rulings. Regarding this question, and the practical response to it, we find the differences mainly in the result and not in the basic value-judgment. The argument among the justices is not a dispute over values, but rather over the extent of pragmatism. (Today, the test of proportionality plays this pragmatic role.) It is interesting, for example, to see that while two justices in the Citizenship Law case used legal reasoning which was closer to the minority than the majority, they nevertheless joined the majority in terms of the result. I am not suggesting that all of the justices are similar in values and principles. There are certainly disagreements among them and it is clear that they are different. However, for the purposes of this discussion, I will say here briefly that there is no serious debate between them concerning the “essence” of the definition of the state as Jewish when their rulings relate to the rights of Arab citizens of the state.

Let's return to the “civil equality” rulings. These rulings usually deal with the equal distribution of goods and resources, and therefore have a budgetary character. An examination of these rulings is interesting because it allows the issue of “national identities” to be neutralized. Indeed? As I noted earlier, the justices were not divided over this type of ruling both when accepting and rejecting petitions; usually, the rulings were unanimous. Thus, it was easy for me to trim some of this material from the syllabus. But if you ask me whether the petitions discussing the issue of "civil equality" were sufficient to demonstrate the existence of discrimination between Arabs and Jews in order to receive legal succor (that is, in order for the Supreme Court to accept the petition), I would answer, not necessarily. In general, these rulings are vague and inconsistent; in fact, they are consistent in their inconsistence. You will find cases in which the justices recognized the existence of discrimination but still rejected the petitions. For example, in our first petition seeking equality in budget allocations for Arabs and Jews in religious services, the Supreme Court ruled that while discrimination clearly exists in this area, with Arabs receiving less than 2% of the total budget, the petition is general because it is not grounded on a full factual basis and therefore should be rejected. My question is how it can be determined that there is indeed discrimination and at the same time rule that the petition lacks a relevant factual basis; after all, the existence of discrimination is a factual matter!

We see the same tendency, for example, in a case pertaining to equality between Arab women and Jewish women. In 1994, the Supreme Court ruled that a policy of affirmative action should be applied in order to bring women onto the boards of directors of government corporations. As a result of this ruling, the number of Jewish women appointed as directors rose by a relatively high percentage. In 2001, we submitted a petition requesting that the same principle be applied to Arab women, since Arab women comprised less than 1% of the women serving as directors. We argued that this was a case of discrimination among women on the basis of nationality with regard to the implementation of the 1994 ruling. The Supreme Court, by means of Chief Justice Barak, rejected the petition, citing the same procedural arguments: the lack of a factual basis. Again, it is not clear to us what the relevant basis for this petition would be other than proving the existence of a large and unexplained disparity. Contrary to this ruling, the Supreme Court accepted other petitions in which it ruled that there was indeed discrimination requiring a remedy. A prominent example is the petition that sought to cancel the classification of localities for national priority areas with regard to educational benefits. We found that there were three Arab communities classified as National Priority Area A, compared to over 500 Jewish communities. The Supreme Court’s unanimous decision, led by Barak and Cheshin, was delivered by an enlarged panel of seven justices. However, eight years passed from the submission of the petition before the Supreme Court delivered its final ruling in this case.

However, I think that the dichotomy I drew between the two types of rulings is artificial. There is no room for separating the two types of rulings because the principle of equality is indivisible. We have seen that when there was no equal recognition between national identities, there was also no full equality on the civil level. The recognition of national identities is recognition of collective rights in an equal way and at all levels. The lack of this type of recognition necessarily leads to a pragmatic rather than a principled approach to the issue of equality in other areas, and this attitude will be consistent in its inconsistency.

Those seeking to make a distinction and who argue, for example, that Arab MKs should focus only on budgetary issues and the everyday equality of Arab citizens, and not deal with the issue of national identities, including the Occupation, are asking, in fact, to perpetuate discrimination against Arab citizens. I will illustrate this with a comparison in another area of law: women's rights. The advancement of women's rights in democratic societies is the result of recognition of the legitimate differences between men and women, and is not only due to the formal recognition of the principle of prohibiting discrimination. Let us assume that a certain state does not recognize the legitimate difference between men and women, but claims that it prohibits discrimination among its citizens. Even though this is an absurd claim, let's examine its application. In this state it would be legitimate, for example, to discriminate against women in the job market because it is acceptable to prefer men, who do not require pregnancy or maternity leave. But the moment a woman is accepted for a job it would be prohibited to pay a man more than her for the same work because it is prohibited to discriminate among citizens.[1] However, it would be permissible to deny wages to a woman who takes pregnancy or maternity leave, for example! It is clear also that in this state there is no place for affirmative action for women since there is no recognition of the historical discrimination that they have experienced because their identity as women is not a matter for the law. In fact, the law recognizes their identity as an obstacle to their rights. It is also clear that such a practice would place women in an inferior status to men, which would justify discrimination against them in most areas. And, in any case, the issue of equality for women would not be self-evident. Instead, it would be discussed separately in each particular case, subject to the dominance of men. That is, everything would be subject to pragmatic considerations.

The law of my imagined state and how it treats women, based on the concept of non-recognition of the group rights of women yet proclaiming equality among all its citizens, is similar to the legal practice and constitutional outlook of the “Jewish and democratic state.” This practice of the Jewish state is not satisfied with the self-determination of the Jewish citizens in the sense that the State of Israel is the only state in the world in which Hebrew is an official language (which ensures the vitality and development of Hebrew culture), in which the Jewish religion is official and recognized, and whose name is Hebrew-Jewish. Rather, at the foundations of this practice stands the rejection of full and equal recognition of the collective rights (to language, culture, historical injustice, etc.) of the Arab citizens, on one hand, and the concern for preserving Jewish dominance on the other. The guiding value of this outlook is the rejection of the universal principle of full equality between all citizens in all spheres. The issue of discrimination against Arabs will be discussed, therefore, in each particular case, like the woman in my imagined state, and in accordance with the circumstances that change from time to time, with everything subject to Jewish dominance.