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

Prof. Ramzi Suleiman

On Identities, Jurisprudence and Politics

Professor Suleiman teaches in the Department of Psychology, Haifa University and is editor of Palestinian Review of Society and History, published by Mada al-Carmel – The Arab Center for Applied Social Research.

In this lecture, I will briefly consider the possibilities and limitations presented by the sphere of Israeli jurisprudence as an arena for action toward achieving collective equal rights for the Palestinian minority in Israel. As the occasion requires, I will focus on the impressive achievements of Adalah and the obstacles with which it must contend in its efforts to plead before the Supreme Court for the promotion of those rights. As a test case for discussion of this issue, I will use the Supreme Court of Israel’s ruling on a petition filed by Adalah and the Association for Civil Rights in Israel (ACRI) to require municipalities whose population includes a Palestinian minority to use Arabic, along with Hebrew, on all municipal signs (H.C. 4112/99). Before doing so, however, I would like to outline my concept of the political and public climate in which the arena of jurisprudence exists and operates, and in which deliberations within that arena are held. In this context, I will emphasize the following points:

1. As I understand it, “doing justice” in Israel takes place within the spheres of society, politics and statehood, in which the identity of the state is equivalent to that of the Jewish nation. In other words, the Jewish nation has a collective status and collective rights (under the Law of Return), and those rights are reserved for that nation only.
2. In fact, paradoxically, the state – like Jewish public opinion – unofficially considers the Palestinians in Israel to be a national collective. Not only that: the civic status of the individuals within that collective is actually derived from their perceived nature not as citizens, but as members of a national collective.
3. This concept has given rise to innumerable acts of discrimination – institutionalized, semi-institutionalized and non-institutionalized – against the Palestinian Arab national collective and against the individuals who belong to it. This discrimination affects not only the distribution of resources in the various sectors, but is also reflected – and this is much more serious – in an active and protracted effort aimed at reducing the living space of the Arab collective and its members. Not only is the Arab collective not being given its share of the pie, but it is also being subjected to attempts to take away what it does have. The expropriation of lands on various pretexts, the strangulation of Arab towns and villages and deliberate postponement in the approval of outline plans, the failure to issue building permits and the demolition of houses on the pretext of illegal building, the refusal to recognize existing villages or to allow the unification of Palestinian families are a few examples of practices intended to rob the Arab minority of the little it has left and to reduce its living space.
4. In my opinion, it would be naïve or sanctimonious to dispute the statement that, in any case of conflict between the Jewish and democratic natures of the state of Israel, such a conflict is settled in a way which favors the Jewish nature. In significant cases, the values of democracy are subordinated to those of Jewishness.

This, in a nutshell, is the political, public, legal and juridical climate in which Adalah operates. Its mandate requires it to walk a tightrope, and through this type of acrobatics Adalah in fact made impressive achievements. It must extricate achievements, on behalf of individuals and of the Palestinian Arab collective, from the clutches of the courtroom, where many members of the bench are “allergic” to any hint of “Arab collectivism”.

In fact, one might think that many basic needs and rights which belong to the individual (that is, personal rights) are inseparable from needs and rights based on the nature of the individual as part of a collective. Language, culture, history and ways of thinking are all essential components of any national collective. At the same time, however, they are also part of each individual’s personality. Or, as the Honorable Justice Cheshin (as was his title at the time) put it: “They are the person’s soul” – the soul of the individual. Any encroachment on even one of these components violates the rights of the collective, along with those of the individual.

The absence of separation between the collective and the individual is not restricted to these components. If one harms a person because that person is part of a collective, one has harmed the entire collective. The reverse applies even more forcefully: if the rights of a collective are violated, the rights of its members are also violated. If the collective is not treated with equality, the equality of the individual is breached. If the collective is not addressed with dignity, there can be no human dignity for its members.

To return to Adalah’s breathtaking acrobatics on the tightropes of the Supreme Court: Adalah must champion the rights of individual Palestinian Arabs, which have been harmed by the very fact of their collective affiliation, as well as the rights of the collective as a whole, while at the same time keeping the “allergic” Court from perceiving the collective essence too strongly. It must play on the field of civil rights, under the watchful eyes of a strict referee. It must carry a suitcase full of collective rights past a highly sensitive detector, which will immediately trigger an alarm if a “suspicious object” reminiscent of collectivism is reflected on its screen.

The Supreme Court’s ruling on municipal signposting is a fascinating example of this game of “cat and mouse.” Although the petition submitted by Adalah and ACRI in this matter was accepted, an examination of the ruling shows how cautious the Court was with regard to collective rights. Chief Justice Barak (as was his title at the time), weighing the various considerations for and against the imposition of a requirement for Arabic text on signs, wrote:

And what of the other general purposes? The status of the Hebrew language, as a principal language, is not materially harmed. No argument has been raised – and, had such an argument been heard, we would have rejected it entirely, due to the grave importance of the value of the Hebrew language – that in municipal areas with a high concentration of Arab citizens, the municipal signs must be in Arabic only. The argument is for the addition of Arabic text – alongside the Hebrew text – to municipal signs in places where no significant Arab population resides. It is difficult to see how this would harm the Hebrew language. In any event, even if any such harm is done, it is minimal, relative to the harm done by the breach of a person’s right to his [sic] own language and the need to ensure equality and tolerance. All that remains are considerations regarding the national identity and the definition of the sovereign state. These may be harmed if the local authority is required to include, on municipal signs, text in the language of the city’s residents. Israel has many languages which are spoken by Israelis. Any breach of the frameworks will eventually give rise to a breach of the bands which hold us together as a single national framework. (H.C. 4112/99, Section 23)

In the context discussed above, the minority opinion by the (then) Honorable Justice Cheshin is exceptionally interesting. Under the subheading “The Arabic language as an expression of national and cultural identity”, he wrote:

The petitioners appear to consider themselves as pleading before us in the name of the Arab public in Israel, in its entirety. The petitioners claim that the arguments and complaints which they expose before the Court come from the mouths of Arabic-speakers, as a group with a distinctive national and linguistic character. The battle which the petitioners seek to fight is not their own. They seek to fight the battle of the entire Arab minority group. They are not asking us to settle the direct and immediate interests of the individual, nor even the direct and special interests of the Arab residents living within the confines of the respondent cities. They have set themselves up as representatives of the Arab collective in Israel and they are claiming, in the name of that collective – in its name and on its behalf – recognition of the right derived from its substance as a collective: their right vis-à-vis the public authorities – the respondent cities, and, in fact, the State in its entirety – to take action for the preservation and fostering of a cultural and national identity of the Arab collective. (H.C. 4112/99, Minority Opinion, Section 45)

Justice Cheshin went on to state that:

This argument – in the name of the Arab collective and on its behalf – has accompanied the petition from beginning to end: in specific chapters and in comments scattered throughout the entire petition, a bit here and a bit there. This argument, in theory and in practice, is the argument which breathes life into the entire petition and makes it a unique petition in itself. This argument asks the Court to establish, in case law, a new species of right: the collective right of the members of the Arab minority to preserve and foster their national identity and their cultural distinctiveness. This right arises from and grows out of the affiliation of the members of the Arab minority to a national and cultural collective, and its clear and overt purpose is to impose duties of promoting the distinctive characteristics of this collective upon the public authorities … (H.C. 4112/99, Minority Opinion, Section 46)

In Section 48, he added that:

The petitioners, then, are asking us to recognize Arab citizens of Israel as a national and cultural minority group, a group which is entitled – by means of the Arabic language – to preserve and foster its separate national and cultural identity … The petitioners, if this is the case, are asking us to recognize Arab citizens of Israel as a national minority group with an independent identity … It is not the interests of the individual which they are seeking to promote. They are seeking to promote interests derived from the collective distinctiveness of the Arab public, the interest in preserving the distinctive identity and the difference of the minority group. Regarding the case before us, we shall state that the petitioners are aiming to reinforce the status of the Arabic language as a constituent component of the Arab national collective and a tool for expressing its distinctive characteristics … (H.C. 4112/99, Minority Opinion, Section 48)

After wearisome repetition of this line of reasoning, in which he exposed the intentions allegedly concealed within the petition, Justice Cheshin pointed out the path which should be trodden by the petitioners: one which leads out of the Supreme Court. In his words: “The State, of course, is entitled to decide that it desires to preserve and promote a certain language, whether by law or in another way … but a decision of this type – a decision on the State level – is the prerogative of government” (Section 53); and: “The Court was not intended to cast political ideology in the mold of a legal norm, and it will not do so.” (Section 60)

The Honorable Justice Cheshin concluded his minority opinion by emphasizing that, “The place of these ambitions is in the political sphere, rather than the juridical sphere”, and that, by its very nature and substance, "The petition concerns a political decision with regard to the collective rights of the Arab minority in Israel; a political decision, rather than the sort of juridical decision to which we are accustomed. We shall reject this petition.” (H.C. 4112/99, Minority Opinion, Section 62)

As we all know, however, the petition was accepted, and thereby became one of the series of impressive achievements credited to Adalah through the course of its existence. Nonetheless, the minority opinion penned by Justice Cheshin is extremely interesting because it holds that the Supreme Court should stand by and not intervene in a situation involving a protracted breach of the rights of many Arab individuals. This breach not only affects the functional level of these individuals’ orientation in the urban space and their ability to find their way to their destination, but also undermines their sense of belonging to the specific place and the surrounding area; it reinforces their feeling of alienation and foreignness, and even violates their dignity. And all this because the individual rights of many are likely (Heaven help us) to substantiate a collective right.

I am not a jurist and have no pretensions in that area, but I believe this type of rationale borders on the absurd. It dictates that if an individual’s rights are harmed, the doors of the Court are open to that person, while if the rights of many are harmed the Court should close its doors to them if it believes that, together, they constitute an Arab national collective.

On the other hand, I believe that Justice Cheshin’s statement that “the place of [collective] ambitions is in the political sphere” is correct, provided that the Court does not use it as an excuse to “wash its hands” of any juridical deliberation on such issues. But what is happening to us Arabs today in the political sphere? And what will happen to us if that political sphere, which clings with both hands to the definition of the “Jewish state”, decides to take our definition as a collective more seriously? I do not mean in the sense of recognizing us, but in order to outline a policy which is expressly based on our definition as a collective? Given the supreme importance attributed to the value of Jewishness for the state of Israel, marking us as a collective is likely to exacerbate our situation to the point where the Knesset does not hesitate to enact laws even more racist than those of today.

Thus, parallel to the vital efforts led by Adalah, justice and complete equality for the Arab citizens of Israel require a substantial change in governance, from a state of hegemony for one national collective – that of the Jews – to a state of partnership between the two collectives.

In an article which I published in Adalah’s Newsletter about a year and a half ago under the title “From Hegemony to Partnership,”[1] I claimed that, as long as the status quo persists, most of the Jewish discourse on “the rights of the Arab minority” is actually a discourse on the obligation of the hegemonic majority to the rights of the Arab minority. In fact, the position which we see among the decision-makers – and among most of the Zionist left – is one of noblesse oblige. This position is not only unjust and unethical, but it also exploits the “discourse of rights” in order to control the Arab minority.

Changing the current situation in which a single-group – Jewish – hegemony prevails, to a situation which provides true partnership, in the sense of power-sharing, is not only a functional partnership, intended to achieve equal rights for members of the Palestinian minority, or even for the Palestinian minority as a whole. It is also important in reinforcing civic cohesion in general and increasing the commitment of the minority to partnership with the majority, within the framework of a single, common citizenship. Most importantly, true partnership has a moral value for both sides: it empowers Palestinian citizens, and gives them a sense of value, respect, sovereignty and proper control of their own destiny, and of the shared destiny of both national groups.