Adalah’s “Democratic Constitution” is a qualitative leap forward in the legal discourse of the Arab minority in Israel. Challenging the Israeli legal discourse and impelling it to rely on the fundamental norms and principles of universal human rights and international law strengthens our political discourse as regards the demand for national and civil equality.

The “Democratic Constitution” is the legal extension of “The Future Vision,” which was put forward by the National Committee for Arab Mayors in Israel. These two documents, along with other documents which have been published or will be published in the near future, are vital for the current needs of the Arabs and for their future development.

The State of Israel cannot claim that it is a part of the international democratic, free community without abiding by international standards. The “Democratic Constitution” represents a challenge which Adalah has presented before the political and legal authorities in Israel. Israel recognizes the principle of equality as part of the basic values of the state, but does not act accordingly. One of the components of the principle of equality is the adoption of the principles of distributive and corrective justice between the citizens of the state. Distributive justice means distributing resources without discrimination between citizens for the purpose of closing the gaps between the various groups. Corrective justice means correcting historical injustice, which primarily includes the restoration of property and land confiscated through oppressive means. The Democratic Constitution of South Africa is a good model of the adoption of these principles for treating historical injustice inflicted on the indigenous inhabitants in the Apartheid era, including the appropriation of property and land. Therefore, it is not a coincidence that provision 2 of the introduction to the Democratic Constitution of Adalah relates to the historical experience of South Africa as a milestone:

After the end of World War II, and as a result of their long and just struggle against colonial regimes, many nations succeeded to attain their independence and realize their right of self-determination. In the last two decades, historic processes have taken place in states where policies of repression and discrimination had reigned. The end of the apartheid regime in South Africa is the most prominent example. These states have derived lessons from the past and promoted historic reconciliation, based on recognition of the historical injustice these policies inflicted on groups that were repressed and discriminated against, and ensured the effective participation of these groups in the process of constitution-making.

Thus, the reliance on the principle of corrective justice and not sufficing with distributive justice in Adalah’s constitution is in itself indicative of the specific situation of the Arabs in Israel as a national group which does not separate between its daily reality and its history as a group belonging to a people displaced from its homeland.

Indisputably, Israel’s Planning and Building Law, enacted in 1965, seriously infringes the principle of equality, which has been defined clearly in international law. This principle requires that the allocation of resources and budget allowances for land, water, etc., must be based on the principle of distributive justice. The State of Israel’s continuing control over the greater part of the land space (over 93%) via the Israel Land Administration, and its distribution of these lands to a single ethnic group, the Jews, and the exclusion of another ethnic group, the Arabs, destroys the already deficient foundations of Israeli democracy. Israel has refused to this very day to deal with the issue of the confiscation of Arab land, the evacuation of our villages during the 1950s, and the theft of refugee property, which obliges us to demand corrective justice.

The principles of distributive justice and corrective justice and the right to property are the most basic and essential principles in the “Democratic Constitution”, appearing in articles 36-44. Fortunately, the other Arab covenants and visions have also adopted these principles. International law stipulates the importance of the rights of indigenous peoples to land, and the importance of safeguarding their spiritual and material relationship to the land and natural resources. It also provides for the right of these people to develop the lands and for the recognition of their patterns of land ownership, their customs and traditions, and the return of that which was appropriated from them.

In the section in question, the “Democratic Constitution” focuses on the necessity of the return of personal property, the Islamic Waqf, as well as the return of the internally-displaced persons to their villages on the basis of the principle of corrective justice. The constitution emphasizes the importance of traditional land ownership by demanding recognition for the unrecognized Arab villages. However, I believe that article 39 of the constitution, which stipulates the restoration of personal property, is at the heart of the corrective justice for which Adalah is calling. This article states that:

Every person whose land has been expropriated or whose right to property has been violated arbitrarily or because of his or her Arab nationality under the following laws is entitled to have his or her property restored and to receive compensation for the period during which his or her right to property was denied: the Land Ordinance (Acquisition for Public Purposes) of 1943, and/or the Land Acquisition (Validation of Acts and Compensation) Law of 1953, and/or the Absentee Property Law of 1950, and/or article 22 of the Statute of Limitations of 1958, and/or Regulation 125 of the Emergency (Defense) Regulations of 1945.

This article, which does not stipulate that: “Every citizen whose land has been expropriated …” makes the essence of corrective justice which we are demanding absolutely clear: it is not limited to Arab citizens in Israel, but is also concerns the rights of the Palestinian refugees to their land and possessions. Article 39 also has an important educational element insofar as it recalls and records all the titles of the unjust laws under which our lands were appropriated and the refugees’ property was confiscated.

Corrective justice according to the “Democratic Constitution” is among the most important characteristics of democratic societies which in the past pursued policies of land and property expropriation in an oppressive manner. It is therefore not possible to speak of everyday civil equality without looking into the issues which concern the correction of historical injustice, primarily the issues of the internally-displaced persons and confiscated property, particularly that taken under the Absentees’ Property Law.

[1] Dr. Thabet Abu Ras is a lecturer at the Department of Geography and Environmental Development, Ben-Gurion University, and a member of Adalah’s Board of Directors.