Roundtable Participants

Jamil Dakwar, a lawyer, formerly with Adalah, works with the American Civil Liberties Union, New York, USA.

Dr. Ilan Saban, a lecturer in the Faculty of Law, Haifa University, Israel.

Nimer Sultany, an attorney and SJD candidate.

Question 1: What are the implications of this verdict for future decisions of the Supreme Court regarding human rights issues?

Dakwar: The Supreme Court, with very limited exceptions, has sacrificed Palestinian human rights in the name of national security. This case is no different. It only takes us back to the time of overtly discriminatory laws and policies which have been largely upheld by the judicial branch. The new paradigm, which has been evident in several recent human rights cases, is that the Court scores points as the champion of human rights even while the petitions for legal redress are dismissed. Although the majority of judges upgraded the right to family and equality to protected constitutional rights, thousands of Palestinian families remain separated. While Supreme Court President Barak reassures his friends at Yale that the majority ruling is only a technical defeat, the door is slammed in the faces of the petitioners, who are once again reminded that in Israel there are two kinds of families with different classes of human rights: one for Jews and one for Arabs.

Saban: In the turbulent atmosphere created by the Supreme Court’s ruling, I prefer to start with a positive point. In the aftermath of the ruling (in conjunction with the ruling on the Tal Law) Israel's constitutional regime has altered. The Basic Law: Human Dignity and Liberty has been transformed into an actual Bill of Rights (at least in the field of civil and political rights). The right to "human dignity" has been found, inter alia, to comprise the rights to equality and family life (and is soon expected to afford constitutional protection for freedom of expression). However the negative repercussions of the ruling are very significant. First, by foregoing individual checks to detect a spouse who constitutes a security threat, and embracing instead a general, unmitigated ban on Palestinian spouses’ entry to Israel (women under 25 and men under 35 years of age), the case entails an element of “collective punishment.” Second, Justice Cheshin based his endorsement of this general ban on a change in the balancing test to be used in conflicts between human rights and state security. He came close to re-adopting the “bad tendency test,” the test the Supreme Court proudly ruled to disregard in the 1950s. Third, two other Justices in the majority (Gronis and Rivlin) speak of adopting a horizontal, rather than a vertical, test of balance, speaking of the right to life (of citizens of Israel), versus the right to family life (of Palestinian citizens of Israel). Ronald Dworkin warned recently against this metaphor of the horizontal balance between the benefit of the majority and the human rights of the minority, arguing that it “undermines the whole point of recognising human rights"; and that "some injuries to individuals are so grave that they cannot be justified by declaring that that is what the public wants." Fourth, the ruling has provided legitimacy to the demographic overtones that accompanied the law’s enactment and the public discourse that engulfed it. Finally, the unexaggerated interpretation of the ruling by Arab citizens of Israel is as additional evidence of the “unbearable lightness” of their citizenship.

Sultany: It is hard to say that the ruling itself will have a general and pervasive repercussion for human rights issues. Rather, recent changes in the Supreme Court, the justices’ mindset, and what this ruling reveals about the Court and justices, are the sources of concern. The ruling is simultaneously the outcome and the symptom of both the Israeli constitutional structure and political culture. These have evolved in recent years towards entrenching the inferior status of Palestinian citizens, which is reflected in the Court. Israeli society (and Zionism) is shifting further to the right, as is the Court; it is becoming more nationalistic, as is the Court. The emergence of new elites in society has been accompanied by a similar development in the Court: Chief Justice Aharon Barak represented a seemingly “liberal” (within Zionist limits, of course) hurdle for right-wing nationalistic views within the Court. This ruling sends the massage that even this hurdle can be overcome. Tellingly, this message comes at the time of Barak’s retirement. In this sense the ruling, which confirms an existing trend, serves as a vehicle for further curtailment of Palestinians’ human and civil rights, whether citizens or not. Palestinian citizens are becoming holders of a meaningless status that approaches statelessness (what kind of citizenship does not include the right to family life?). Concurrently, the security argument, as part of the state’s ideology, once again prevails as an unlimited justification for any grave breach of Arab human rights.

Question 2: How, in your opinion, should human rights organizations manage their legal strategies following this ruling?

Dakwar: While it is beneficial to revisit certain legal strategies, particularly in cases that might raise the hollow hope of gaining effective legal remedy and corrective actions, it is no less critical to reexamine political strategies and the appropriate forums for addressing grievances. Over the past ten years, the Supreme Court under Barak’s Presidency has issued several wake-up calls to the government to end certain aspects of the second-class citizenship status of Palestinians in Israel. These, however, have been largely ignored. One of most crucial petitions currently pending before the Court is a petition challenging the legality of the amendment to Civil Wrongs Law, which denies Palestinians from the Occupied Palestinian Territories the right to seek compensation for injuries sustained as a result of Israel’s military actions. In this context, we have to remind the Court that no legal lip-service will save it from international condemnation and scrutiny, as noted by the prominent African-American abolitionist Frederick Douglas after the infamous US Supreme Court’s Dred Scott decision upholding slavery in 1857: “You may close your Supreme Court against the black man’s cry for justice, but you cannot, thank God, close against him the ear of a sympathizing world.”

Saban: I will restrict myself to one point of legal strategy. If the Basic Law: Human Dignity and Liberty has been transformed into an actual Bill of Rights, then the Israeli constitution has become tangible. However, the current structure contains a large hole: the Knesset can amend most Basic Laws, including the Basic Law: Human Dignity and Freedom, by a simple-ordinary majority. Why, then, not strive for an entrenched constitution? My answer is that almost all proposals which have been made to that end in Israel contain a large, official ‘hole’ in the form of a “notwithstanding clause,” resembling that within the Canadian Constitution. Moreover, a constitutional process in Israel in current times is riskier. In such a process all of the cards are on the table – the symbols of the state, the land, the appointment of judges, the degree of the constitution’s entrenchment, etc., – and in this case, the table is the table of the political majority: the Knesset. One can plausibly argue for a legal strategy which sustains the status quo, under which further constitutional developments occur, essentially, through the Supreme Court. In a healthier society, it would be preferable to rely on a social, 'package-deal' process. In Israeli society, at present, this seems truly dangerous.

Sultany: Given that the prospect of change within the Court through litigation is limited without a profound transformation in the legal and political culture as a whole, and assuming that such a transformation will not occur in the near future, I suggest that human rights NGOs focus on creating a memory for the Court; a memory of failure to protect human rights and submission to an oppressive ideology. This can be achieved through swamping the Court with repeated individual and collective petitions on issues related to the Citizenship and Entry into Israel Law. The justices should constantly re-encounter their “democratic” pretensions. Likewise, a memory of resistance should be formed. Victims of the Law should be publicly encouraged to break it, and should be represented by NGOs. Shaming activities should target not only Israel at the executive level but also judicial officials, including the justices who supported the Law and other oppressive policies in the OPTs. For example, foreign, and particularly American, universities should be asked repeatedly to refrain from inviting such justices to lectures. If invited, progressive student organizations should be assisted in protesting against their invitation. Israeli progressive student organizations should initiate similar protests. Finally, human rights NGOs should be careful in choosing their strategic legal and rhetorical tools: first, it is a mistake to combat the security argument from within its internal logic. Instead, the notion of security itself as part and parcel of the state’s ideology should be problematized; second, it is also a mistake to translate the Hebrew word for “citizenship” in the Law’s name into the English “nationality.” This mistake gives the wrong impression that Israel offers nationality for all. The only nationality law is the Law of Return.

Question 3: How can one explain the fact that the Supreme Court which issued the judgment in Qa’dan, prohibited the disqualification of Arab MKs, ordered the use of Arabic language on signs in Jewish-Arab mixed cities, and ruled that the governmental decision regarding National Priority Areas discriminates against Arab citizens, is the same Supreme Court that upheld the Nationality and Entry Into Israel Law, and all that within a period of less than seven years?

Dakwar: Firstly, unlike the amendment to the Nationality and Entry into Israel Law, which was passed by majority of 59 lawmakers, none of the above cases have challenged a law enacted by the Knesset, and therefore it can be said that the Court has followed the pattern of judicial restraint and deference to the executive branch commonly practiced in cases of national security. Secondly, none of the above cited cases has had an immediate effect on Israel’s racist demographic policies; they all were primarily symbolic victories, couched in Barakian rhetoric, that have yet to change realities on the ground. Thus, the Qa’adans had to go back to court to claim their individual right to build their house in Katzir; the Arab MKs were given the benefit of the doubt only after the Court approved of the running of an extremist and racist Jewish list; the Arabic language is still largely marginalized and subject to continuing attempts to further entrench its second-class status; and, finally, most Arab towns and villages continue to suffer from a shortage of funding and from socio-economic disenfranchisement.

Saban: The different, inconsistent, decisions of the Supreme Court are a product of complex factors. Some of these decisions were delivered before the outbreak of the second Intifada; some dealt with the less sensitive issue of challenges to administrative, as opposed to legislative, measures, etc. However, I attribute much of the inconsistency to ambivalence, a sense of institutional fragility and fatigue. After years of isolation and “fire from all sides” a few of the justices have wearied of being “the child with a finger in the hole in the dam.” Such weariness is also apparent in other Supreme Courts in such times. We had hoped, however, that the justices of our Supreme Court were more impervious. Perhaps a poem by Walt Whitman can reflect elements of a certain collective mood at present and urge awakening better than I can.

Walt Whitman, from “Leaves of Grass”

I Sit and Look Out

I sit and look out upon all the sorrows of the world, and upon all oppression and shame; I hear secret convulsive sobs from young men, at anguish with themselves, remorseful after deeds done; […]
I observe the slights and degradations cast by arrogant persons upon laborers, the poor, and upon negroes, and the like;
All these--All the meanness and agony without end, I sitting, look out upon,
See, hear, and am silent.

Sultany: All of these rulings fell within the Zionist parameters of the Court; none of them shook its ideological underpinnings. The Court always stressed the Jewishness of the overall framework before granting Palestinian citizens “leftovers” of rights. The Court in this case had to deal with issues much closer to the gap between nationality and citizenship. It affirmed that nationality is for Jews only. Those who believe that Israel can be both Jewish and democratic (like all of the Supreme Court justices) can oppose this Law, but will ultimately have to justify and allow a certain degree of discrimination. From this perspective, the debate is not about equality or discrimination. Rather, it relates to the extent to which to discriminate against the Palestinian citizens and by which means; they are concerned with the degree and form of discrimination not its existence. Accordingly, this Law and ruling are the inevitable outcome of an indispensable, institutional anti-Arab slippery slope. Thus, I find the ruling perfectly consistent with the constitutional structure and political culture, wherein the problem inheres. Those who argue that the Law is unconstitutional under Israeli law ignore the problematic nature of the constitutional structure. The “bright side” of the ruling lies in its exposure of this problematic nature: as the Court becomes more self-consistent, its absolute adherence to the system of subordination becomes more apparent. Indeed, more than reminding us of Korematsu, the Court reminds us of the US Supreme Court in the era of slavery.