The judge: We will begin to hear the case of The State of Israel v. Abed Aghbariya. How does the defendant plead?

The defense attorney: The defendant pleads not guilty, your honor.

The prosecutor asks to call a policeman as its main and only witness to the witness stand.

The policeman: The procession that took place on Independence Day in Umm al-Fahem was organized to mark what the minorities call “Nakba Day.” The defendant marched in the procession and chanted slogans denouncing the State of Israel and occasionally mentioning the word “Nakba.”

The prosecutor: How many times, if you recall, did the defendant use the word “Nakba?”

The policeman: More than ten times, and in various rhymes.

The prosecution rests its case. The defense attorney announces that he is not interested in questioning the policeman. The prosecutor declares that the prosecution has proven all of the facts relevant for conviction under the new Nakba Law. The Nakba Law prohibits conducting any activity that “marks Independence Day, or refers to the establishment of the State of Israel, as a day of mourning or as a day of sorrow.” The court session is adjourned.

There is an even larger presence of local and international journalists at the second hearing on the case than at the first. Everyone is interested today in the great question that occupies the experts: What would be Abed’s line of defense? Would his defense attorney carry out the promise of the Union of Arab Lawyers in Israel and call witnesses to testify about the Nakba and the Palestinian historic injustice in order to justify the participation of Arabs in Nakba Day processions? The judge enters the courtroom and everyone rises in his honor. The defense attorney asks to call as a witness Abu Ali, a man of high esteem, 82 years old, from Umm al-Fahem. Abu Ali seems happy to have reached this occasion. He seems healthy, and physically steady. He testifies in Arabic, with simultaneous translation.

The defense attorney: Mr. Abu Ali, please tell the honorable court, what is your expertise?

Abu Ali: I am an expert in the affairs of bayt ajar – a house of mourning – and I am known as the greatest expert in this field in the Aghbariya neighborhood. For twenty years, I have participated in every bayt ajar in the neighborhood and no one has passed away without my participation in the prayers for him.

The defense attorney: Please explain to the court how it is customary and accepted to act in a bayt ajar?

Abu Ali: We read verses from the Qur’an and, throughout the day, we occasionally pray to God to have mercy on the deceased, to bring him into Paradise and include him on the list of faithful and righteous believers. The visitors who arrive are welcomed with a serious countenance, expressing sorrow and pain at the death of the deceased, as well as gratitude to the guests for their condolences.

The defense attorney: Is it customary to shout any type of slogans on mourning days?

Abu Ali: Heaven forbid, are you crazy? Respect for the deceased requires a quiet and dignified atmosphere.

The defense rests.

The prosecutor: Begins his cross examination: Explain to me how managing a house of mourning is a matter of expertise. Do you study this as a subject at a university?

Abu Ali: Sure, this is a matter only for experts like me, who have acquired substantial experience. For example, there are three days of mourning. The question is how do you count the three days? Is the day of the funeral considered one of the three days? When is it included and when is it not? Is Friday included in the count? What happens if the days of mourning fall in the month of Ramadan or one of the days of ‘Id al-Adha? When do you extend beyond three days? What type of refreshments do you provide for the guests? How much coffee do you serve in the bayt ajar? What is the substitute for dates? What do you serve on the last evening of the days of mourning? What types of prayers are conducted at the bayt ajar? What is permissible to distribute in memory of the deceased when the house of mourning is closed?

The prosecutor: Are there no written rules?

Abu Ali: Everything is oral. And we, the experts, also change rules according to the different circumstances of the various families.

The cross examination of Abu Ali continues for over two hours. He is asked about different aspects and customs of Arab mourning. At the end of the questioning, the prosecutor seeks to surprise him with the main question: Don’t people chant slogans in mourning?

Abu Ali: No, that is forbidden.

The prosecutor: How do you explain what we all see on television, when someone they call a shaheed dies; doesn’t this show that people also chant slogans in mourning?

Abu Ali: No, that is only in the funeral procession and in rare cases when you walk with the coffin.

Nearly a year after the end of the hearings, the court summons the sides to hear the ruling. The media reports already begin during the morning hours of that day. Legal experts are at the radio stations, poised to analyze the ruling. Flashes from the dozens of cameras pointed at Abed, who sits on the defendant’s bench, come to a stop when the judge enters. The judge sits down. He asks the crowd, which rose in his honor, to be seated. He takes his glasses from his pocket and looks toward the center of the courtroom, and then focuses on the papers in front of him. It looks like he is opening the pages placed before him. The judge asks for quiet and everyone quickly turns off their cell phones. There is silence in the courtroom. The judge reads until he reaches the sentence: “I have decided to acquit the defendant. The prosecution did not prove beyond a reasonable doubt that the defendant participated in an event mourning the establishment of the State of Israel…”

A public tempest immediately erupts after the verdict is announced. The right-wing political parties attack the Hadera Magistrate’s Court, claiming that it had surrendered to international criticism and criticism from the defeatist left. They add that court had failed to consider the national interest.

Abed’s family and friends are very happy about his acquittal. Abed, a handsome and tall man, 21 years old, had completed his high school studies and started working as an auto mechanic in his city. To his surprise, however, after his acquittal, negative rumors about him begin to circulate in Umm al-Fahm: “He’s a defeatist who was afraid to say that the Nakba Day is indeed a day of mourning against the establishment of the State of Israel. How did they acquit him? After all, they don’t acquit Arabs for participating in demonstrations?” The imam of the Aghbariya neighborhood, who is known for his civility, surprises everyone in his Friday prayer by criticizing Abed’s defense attorney: “We waited for this Nakba Law, which God sent to us as a gift. We waited for the day of pride, when the first prisoner of the Nakba would be from our neighborhood. We waited for the stories of 1948 of the neighborhood’s residents to be the only defense in the trial. But what did we receive? Talk about bayt ajar. Perhaps today we should open a bayt ajar for the missed historical opportunity that was given to us?”

The State Prosecutor’s Office decides to appeal the ruling to the Haifa District Court. The hearings continue for two years. The district court decides not to intervene in the ruling of the magistrate’s court. The case reaches the Supreme Court and is heard before a panel of eleven justices. Since his acquittal, Abed has been required to be present at all of the hearings. This entails lost days of work and other expenses for him. During the initial hearings at the Supreme Court, the issues discussed include: Are matters of love, sorrow, hatred, anger and mourning issues of criminal law? Can you be punished for what you feel in your heart? Does the law apply, if at all, to every participant or only to the organizers of Nakba Day? Can criminal intent be attributed to someone who “tries” to violate the Nakba Law?

One day, Abed, angry and exhausted, approaches his cousin, who has just completed his law degree, graduating with honors from Tel Aviv University. Abed complains: “Why am I the only one on trial for violating the Nakba Law? Every year there is a mass demonstration on Nakba Day and no one is arrested for violating the Nakba Law.” His cousin explains that since the legislation was passed, the Nakba Day demonstrations are not held under a “Nakba” slogan, but instead are expressed “against the Nakba Law.” No one is punished for demonstrations against laws. In fact, this is a new strategy the Arabs have invented in the Jewish state. When the Supreme Court prohibited them from convening a memorial ceremony for George Habash for security reasons, they organized a demonstration “against the Supreme Court decision in the Habash case.” When the minister for public security [the police] prohibited the Nazareth Municipality from conducting a cultural event entitled “Jerusalem is the Cultural Capital of Palestine,” the municipality held a protest event aimed “against the minister’s decision.” Ali asks his cousin: “What can I do to get out of this situation?” His cousin gives him legal advice.

At the next hearing of the Supreme Court, the sides begin to discuss new legal issues: Did the Hadera Magistrate’s Court err in considering mourning only in the private sense of a bayt ajar, without checking whether there is another type of mourning, such as “public mourning” or “a public day of sorrow?” Does public mourning create an opening for collective punishment? Is the meaning of “mourning” in the law subjective or objective? Must a criminal statute be interpreted according to the legislators’ intent or the plain language of the law itself? Before the completion of the discussion of these questions, Abed gets up and asks to make a short statement before the justices. “I retract my plea of innocence and admit guilt, because I was indeed in a state of mourning against the establishment of the State of Israel when I participated in the demonstration.” The courtroom falls silent. This short moment enables the justices to switch from a passive-indifferent facial expression to a serious-angry countenance. “We know that your statement is disingenuous and motivated by arbitrary considerations, and in any case we will not decide on it now. You will have to wait until our final, principled decision,” the Chief Justice of the Supreme Court explains. The hearing continues without disturbance.

Abed, who became engaged and got married during the course of the Supreme Court proceedings, now becomes the father of a baby girl, his first child. Each man in Umm al-Fahem has two names: his childhood name that his parents give him, and his adult name that he chooses for himself. In Umm al-Fahem, great honor is accorded to the adult name. It is the name that matters. Abed will name his daughter Nakba and thus his new name will be Abu Nakba. Perhaps he will receive special honor in his city through his new name. “Not Arafat, not Abu Mazen, not Ahmed Yassin – none of them is the father of the Nakba. I am the father of the Nakba,” he says excitedly to his wife, who does not object to this name. His relatives try to persuade him to change the name and not to give his daughter a name that signifies disaster and tragedy. He refuses. The Hebrew press, which occasionally has written about Abed since the beginning of his trial, publishes an item about the new name on the front pages. Members of the Knesset from the right-wing seek to convene an urgent session of the Knesset. “Is it conceivable that the State of Israel would register in its Population Registry the name Nakba, and that the state would pay the birth costs and child allowance for Nakba? Is this not de facto recognition of the Nakba?” Most of the MKs argue that an appeal to the court system to delete the name Nakba is not a reliable option. Eventually, the Knesset amends the Nakba Law and adds the following directives to it: “A person in Israel will not be given the name ‘Nakba.’ Anyone violating the directives of this law will not be entitled to receive any social benefits and will be subject to imprisonment of three years.”

* Attorney, Founder and General/Legal Director of Adalah. On 24 May 2009 the Ministerial Committee for Legislation in Israel approved a proposal for a bill which would make public commemoration of Israel’s Independence Day as a day of mourning for the “Nakba” or catastrophe of the Palestinians illegal. This story was written in response to this proposed new crime.