The Judicial Revolution and Arab Society in Israel

Reducing the possibility of invalidating legislation and the rest of the initiatives will further undermine the protection of the rights of the Arab minority in Israel, whose trust in the judicial system has steadily decreased in recent years - but is still high in relation to trust in other institutions.

Background

The constitutional and political structure of Israel, and its dual identity as a Jewish and democratic state, pre-define the status of the country’s Arab minority, and the glass ceiling it comes up against. And so, Arab citizens, despite being considered a large and established national minority, have almost no ability to influence policy that affects them. Overall, Arab political representatives are not part of the governing coalition, and even when they are, they do not hold positions of power. This lack of representation stems to an extent from the worldview held by some representatives of the Arab public, but also from systematic delegitimization designed to achieve precisely this end and to sideline them from important decision-making arenas. Similarly, despite positive trends in recent years, Arab representation in the public bureaucracy is insufficient for making it possible to navigate the ship of state in a way that would benefit Arab society and ensure the provision of adequate services based on close familiarity with its particular needs and characteristics. Arab representation is largely limited to junior roles rather than senior positions that have the power to influence government programs.

Despite the fact that its rulings over the years have not afforded proper protection to the Arab minority and its rights, and the Court has not fulfilled its role as the last defense against discriminatory legislation and policy, all we have left is the Supreme Court. Over the three decades since the Basic Law: Human Dignity and Liberty was legislated (giving the Supreme Court the power to strike down legislation), and in light of the expansion of the right of standing which has allowed organizations such as Adalah to petition the Supreme Court on behalf of the Arab public (even if the organization itself suffered no direct harm), as well as other developments which we cannot go into here, the Supreme Court has constituted an important arena and go-to address for Arab society in Israel, and has been one of the main channels for its human rights struggles.

Does Arab society trust the Supreme Court?

According to the most recent Israel Democracy Index produced by the Viterbi Family Center for Public Opinion and Policy Research at the Israel Democracy Institute, published in January 2023, the Arab public’s trust in the Supreme Court has plummeted over the last decade, from 78% in 2012 to 40% in 2022. (There has been a parallel decline in trust among the Jewish public as well, though slightly less steep.) Nevertheless, Arab public trust in the Supreme Court (averaging 55% over the period 2003–2022) is far higher than its trust in other state institutions, including political parties, the Knesset, the Government, and the President of Israel. Though there is no empirical evidence for this, it appears that this decline in trust in the Supreme Court is a result of the perception among the Arab public that the Court has not provided the proper protection of Arab minority rights in Israel, casting doubt on its function as the defender of basic values and principles, such as equality and justice. On the other hand, the trust the Supreme Court does enjoy is due to the fact that over the last three decades, its judicial review of legislation and administrative decisions (some of which have been detrimental to Arab society) has led to rare but important rulings that have protected the civil, political, cultural, social, and economic rights of Arabs in Israel, individually and as a collective.

In the past, has the Supreme Court struck down laws that harm the rights of Arab society?

The considerable caution adopted by the Supreme Court when it comes to overturning legislation would seem to be even greater regarding legislation concerning Arab society. Many significant petitions submitted by civil society organizations to strike down laws harming Arab society have come to nothing, with various reasons being cited. Sometimes, the Court has justified this by balancing the harm against the benefit gained from the law. This was the case with, for example, the Citizenship and Entry into Israel Law which placed restrictions on marriage with spouses living in the occupied territories, thus infringing on the right to family life of Arabs in Israel. Other petitions have been rejected based on the doctrine of “ripeness,” according to which the Court does not discuss theoretical issues, and thus- as long as there is no evidence of harm caused by the law in practice, there is no reason for a hearing to be held.

This was the case with the Nakba Law (which made it possible to constrain the Arab public’s freedom of speech by applying financial sanctions against state-funded bodies), the Admissions Committee Law, and the Expulsion Law (an amendment to the Basic Law: The Knesset that allows a Knesset member to be dismissed if it is established that by his or her actions or words they have incited racism or supported armed struggle against Israel). Regarding the Nation-State Law (Basic Law: Israel - the Nation State of the Jewish People), the petition against which was rejected by a majority of ten justices (against the minority opinion of Justice Karra), the Court ruled that the provisions of the law should be interpreted and applied in a way that will not harm the rights of the Arab minority in Israel, and as part of a broader constitutional fabric that includes principles and values of human dignity, and consequently- equality as well.

Nevertheless, some of the 22 laws struck down by the Supreme Court sought to deal a direct and severe blow to the status and rights of Arab Israelis or of Palestinians in the occupied territories. These have included a clause in the Civil Damages Law which barred Palestinians from claiming damages against the security forces; the Settlements Regularization Lawthat sought to retroactively legalize construction on private Palestinian land in the occupied territories; and a clause in the Anti-Boycott Law which provided for the application of sanctions against anyone calling for a boycott of the State of Israel.

If so, then how will the override clause do more harm to the rights of Arab society than is already the case?

Passing the override clause into law is likely to make it even more rare for the Supreme Court to strike down legislation. This fact alone poses a threat to the Arab public. An example of a law that was revoked which harmed the Arab public in practice, even though this was not its intention, was the clause that allowed the state to withdraw a citizen’s eligibility for income support if they use a car (which was the subject of a successful petition by Salah Hassan, together with the organizations Adalah and Sawt Al-Amal). This was because the clause infringed on the right to minimal dignity derived from the Basic Law: Human Dignity and Liberty. The ruling was particularly significant for Arab society, which has limited access to efficient public transport.

Beyond such cases of indirect harm, the override clause will open the door to unfettered efforts to pass legislation that will directly harm the Arab public, and will strip the Court of its powers of judicial review.

What will be the impact on the Arab public of preventing the Supreme Court from discussing basic laws?

The passing of the Nation-State Law was a watershed event, since the law gives formal status to the State of Israel as the nation state of the Jewish people, as well as to the state’s Jewish symbols and festivals, the Law of Return which applies only to Jews, and the Hebrew language as the sole official language of the state. Many warned of the critical consequences of the law, but it is too early to assess the actual extent of its impact on the status and rights of the Arab minority in the State of Israel. As noted, the Supreme Court did not strike down this basic law, but at the same time, it did not rule out the possibility of applying judicial review to basic laws in general, based on the doctrine of unconstitutional amendments to the constitution.

Furthermore, the knowledge that judicial review would be applied to the Nation-State Law led to its content being toned down significantly during the legislative process. Thus, for example, the first version of the bill included a clause according to which it would be possible “to allow a community, including members of a single religion or nationality, to establish a separate communal settlement.” This clause was explicitly intended to undermine the ruling on the case of Aadel Ka’adan, which forbade discrimination between Jews and Arabs in the allocation of lands. The assessment provided by the Attorney General and the legal adviser to the Knesset, that this clause would not survive judicial review because it contravened the principle of equality, led to the bill being modified.

Changing the composition of the Judicial Selection Committee

During the State of Israel’s first five decades, no Arab justices were appointed to the Supreme Court. Arab representation on the benches of lower courts was also minimal. The (temporary) appointment of Abdel Rahman Zuabi in 1999, marked the beginning of a new era in which the Arab minority gained social recognition, and the last two decades have also seen a rise in the number of Arab judges in lower courts. At the same time, as IDI's Dr. Guy Lurie has written, the single “Arab seat” in the Supreme Court and the low representation of Arab judges in the rest of the legal system (just 8.4% as of 2019) does not constitute a satisfactory situation.In addition, even when the Supreme Court justices are allowed to make their own choices—such as in selecting their legal assistants—this does not mean that they are careful to ensure that Arab candidates are chosen. As journalist Chen Maanit recently pointed out, not one of the 68 legal assistants employed at the Supreme Court over the last three years has been Arab.

There is real concern that the proposed changes to the Judicial Selection Committee will have a negative impact on the representation of the Arab population in the judicial branch, due the prioritizing of political considerations over professional considerations. It should be noted that there is also a question about representation of the Arab minority on the Judicial Selection Committee: In the past, any Arab members of the Committee were usually from the Israel Bar Association (and the current proposals call for removing the Association’s representation on the Committee) or were judges. In the future, if the proposed changes are made, will there be any Arab representation? There is real concern that the answer will be no. Such an outcome is likely to weaken Arab public trust in the justice system, which is an important consideration, in light of its role in combatting crime and violence, and is also likely to have a negative impact on the fairness of court rulings. For example, in the criminal context, various studies have shown that a judge’s ethnic identity is liable to influence his or her ruling on whether to extend the detention of a suspect.

The Jewish justices appointed in the wake of this change may also have an impact on the rights of the Arab population. Thus, with regard to Arab representation in the Knesset, the Supreme Court has consistently defended Arab electoral lists and candidates for the Knesset and overruled decisions by the Central Elections Committee to disqualify them, based on recognition of the special rights of the Arab minority and its characteristics. Changing the system for selecting judges, alongside the intention to amend section 7a of the Basic Law: The Knesset, to make it easier to disqualify Arab candidates and parties, raises the fear that here too – the Supreme Court will change its approach.

Permitting ministerial legal advisers to be appointed as positions of trust

Blurring the boundaries between the political and professional echelons, alongside the politicization of the civil service planned by the incoming government, may directly affect issues that are of great concern to Arab citizens. Legal counsel provided to government ministries is tasked with protecting the public interest. If it is guided by political considerations, then there is justifiable concern that the Arab public will suffer discrimination in the policies pursued by government ministries—discrimination that government five-year plans have sought to rectify since 2015.

If the coalition agreements are also taken into account, which indicate an intention to limit Arab representation in the civil service, what emerges is a situation in which the interests of the Arab public are not represented in government ministries, while the officials who are meant to act as gatekeepers (the legal advisers) are at a stroke transformed into the servants of the appointed minister.

Conclusion

It is difficult to overstate the potential harm to the status and rights of Arab society as an indigenous minority in Israel, and to its trust in state institutions in general and in the Supreme Court in particular, if the reforms to the justice system being proposed by Minister of Justice Yariv Levin are passed into law. If these reforms are introduced (or even just one of them), they will undermine the authority of the Supreme Court and change its composition and character, leaving the government with unfettered power. It is not at all unreasonable to assume that one of the first groups in Israel to suffer from the consequences of this development will be the Arab population.