Israel Supreme Court establishes a "constitutional" apartheid regime
Yesterday's judgment , affirming the controversial Jewish nation-state law , is likely to be remembered as the Israeli Dred Scott. The Israeli justices are experts at writing hundreds of pages of "constitutional" sophistry in a nation with no constitution, out of touch with the facts on the ground . Law Prof. Manny Mautner, for many years an advocate for the courts, has recently described another such Israeli Supreme Court judgment, pertaining to Jewish settlements in the occupied Palestinian territories , "surrealistic"...
READ MORE: https://human-rights-alert.blogspot.com/2021/07/2021-07-10-israel-supreme-court.html
Tel-Aviv, July 09 - an expanded panel of 11 justices of the Israeli Supreme Court rendered yesterday its judgment, denying a petition, which challenged the Basic Law: Israel - The Nation State Of The Jewish People, and affirming that the law was "constitutional". [i] The petitioners asked the Supreme Court to void the Jewish nation-state law , claiming that it was "unconstitutional", establishing discrimination against Arabs in particular and non-Jews in general .
Jewish law professor Yaniv Roznai: "... The Nation-State is not unconstitutional. It is another chapter in the Israeli constitution anchoring the Jewish character without undermining the democratic and other basic values." [sic-jz]
https://twitter.com/roznaiy/status/1413140835315585033?s=20
Arab Member of Knesset Ahmad Tibi: "Once again the Israeli Supreme Court gave a Kosher certificate for racism"...
https://twitter.com/Ahmad_tibi/status/1413215973134458884?s=20
Middle-east correspondent Ben White cites Adalah (Palestinian legal justice center): "The Israeli Supreme Court has not protected Palestinians from the most racist laws in the world, since World War II and the fall of the apartheid regime in South Africa."
https://twitter.com/benabyad/status/1413172215135313926?s=20
The discussion of constitutionality is in itself an act of sophistry. The May 1948 Israeli Declaration of Independence promised a "Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948", and " will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex". [ii] Almost four score years later, reality is quite different... No constitution has ever been adopted. The Israeli Knesset has enacted along the years a series of 'Basic Law", typically passed with regular majority, but declared by then Justice Aharon Barak as equivalent to a constitution. US Judge Richard Posner reviewed the absurdity of it all. [iii] For example, the Basic Law Human Dignity and Liberty , cornerstone of the Israeli "Constitution", was enacted by a vote of 32:21, in a chamber of 120...
Yesterday's judgment , written by Supreme Court Presiding Justice Esther Hayut, was signed by all 10 Jewish justices (including West Bank settler , Justice Noam Solberg), while the sole Arab (Arabs are >20% of the population within the 1967 border), Justice George Karra, dissented.
The 205 page judgment mostly avoids any discussion of the facts on the ground, while engaging in elaborate sophistry of "constitutional" nature , finally determining that from a constitutional perspective the Jewish nation-state law was fully consistent with the fundamental character of the State of Israel and its legal system as a "Jewish-democratic" nation .
Renowned Law Prof Mordechai Kremnitzer summed the judgment: "The majority opinion ignored the reality of discrimination. The Arab Justice spoke the truth, and was left alone ... The intent [of the Jewish nation-state law] was to weaken the value of equality, when it is in conflict with the Jewish nature of the State, to harm the dignity and social standing of the non-Jewish citizens - particularly members of the Arab minority. To wit - the insistence on avoiding any reference to "democracy" or "equality", on avoiding any reference to non-Jews as integral part of the State, the mandate of promoting Jewish settlements, the demotion of the Arabic language... Judgments must speak the truth, they must not appear as State propaganda documents, which seek to present a photoshopped version of reality, or ignore it when it is problematic " ... Still, Kremnitzer gives the justices some credit: "The Supreme Court poured some cold water on the attempt to exclude the Arabs from the State using the Jewish nation-state law, and determined that the Knesset is not permitted to negate the democratic nature of the State of Israel. And yet, the judgment is grave disappointment, since it permits infringement upon equality in the name of the Jewish nature of the State". [iv]
Veteran Law Prof Menachem Mautner has been for decades an advocate of the courts. However, Mautner recently described another such Israeli Supreme Court long winded judgment, pertaining to illegal Jewish settlements in the occupied Palestinian territories, in which Presiding Justice Esther Hayut similarly engaged in "constitutional" sophistry out of touch with reality -- "surrealistic"... [v]
The Jewish nation-state law was controversial in its entirety, but three articles were at the center of contention:
1(c) - " The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People " - this article explicitly prohibits any self-determination of the Arab minority as such, within the State of Israel.
4(a) - "Hebrew is the State language" and 4(b) - "The Arabic language has a special status in the State" - this article demotes the Arabic language, which held the status of "official language", just like Hebrew, since the British Mandate period . Now, it is merely holds a "special status", inferior to Hebrew - the "State language".
7 - "The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and strengthening" - this article may have overarching implications relative to the administration and allocation of public lands, as well as planning and building in the Arab sector . It elevates the settlement of Jews into a "national value", while entirely ignoring planning, land allocation, building and housing for non-Jewish citizens. [i]
In his dissenting opinion, Justice Karra initially criticizes the Israeli mechanism of adopting a constitution : The basic laws are amended at high frequency for political expediency, undermining what would be the constitutional structure of the regime. Karra cites Law Prof Yuval Shani: "Israel is apparently the only nation in the world, whose constitution or basic laws include no explicit reference to equality or the prohibition of discrimination". [vi] Karra further notes that the Jewish nation-state law was passed with a narrow majority, following strict party lines , and therefore shouldn't be deemed fit as a "constitutional clause". Karra briefly states that the institutional discrimination against the Arab minority in Israel has been thoroughly documented in numerous government reports, scholarly publications, a s well was several notable Supreme Court judgments over the years. Karra further notes and opines that likewise, the Jewish nation-state law avoids any prescription of equality or prohibition of discrimination, while mandating the supremacy of the Jews and the Jewish identity in the State of Israel, the discrimination against Arabs and their exclusion.
The ambivalence of the Israeli Supreme Court relative to equality was noted already by Richard Posner in reference to then Presiding Justice Aharon Barak. Posner notes Barak's casual approach to equality, particularly pertaining to civilians, who by now have been held for over 50 years under military rule in the Palestinian territories. [iii] Such approach by the Israeli Supreme Court at times amounts to what is likely to be deemed by the Hague International Criminal Court providing permission for war crimes. [vii] In fact, the Hague jurisdiction is predicated upon the conclusion that the Israeli law and justice system is incompetent in the matters under investigation...
In Alice Miller et al v Minister of Defense et al ( 4541/94 ), hailed a landmark Israeli Supreme Court ruling pertaining to equality, IDF was prohibited from categorically excluding Jewish women, on the basis of gender, from the air-force pilot flight academy. In contrast, when it came to allegations of discrimination against Arabs, pertaining to public land allocation, the 2018 Israeli Supreme Court ruling in Commission of the Arab Municipalities v Jewish National Fund ( 6411/16 ) cites former Presiding Justice Aharon Bark, "Father of the Constitutional Revolution": 'It is no secret that the principle of equality has never gained a constitutional, supra-statutory status within the Basic Law: Human Dignity and Liberty. "It is not a matter of 'an error of omission'. It originates in lack of political agreement" [Aharon Barak]'.
Nowhere in yesterday's long winded judgment can one find direct references to the facts on the ground, for example:
Public land allocation - a 2018 re port notes that during the entire State's history, since 1948, about 700 new settlements for Jews had been established, but none for Arabs (except for several small villages in the Negev desert, where attempts had been made to settle down the nomadic Bedouins, in order to prevent them from claiming possession of vast tracts of grazing land). [viii] Additionally, as a result of discriminatory practices in public land allocation for growth and development of existing settlements, Arab population density is about 10-fold higher than its Jewish counterpart. [ix]
Education - a 2017 report notes vast discrimination in public education budgets. For example, the budget per Arab middle school student was ~NIS 20,000 per year, while the budget per Jewish-religious (the most favored group) middle school student was ~NIS 26,000 per year -- a 30% discrepancy . [x]
A 2019 report finds an even greater discrimination, with the budget per Arab high school student at ~NIS 24,500 per year, while the budget per Jewish-religious high school student at ~NIS 40 , 3 00 per year -- a 65% discrepancy. [xi] Separate and unequal is the norm.
The Israeli Supreme Court is the central pillar in shaping such a discriminatory regime inside the 1967 borders, to which about 2,000,000 Palestinians (over 20% of the total population) are subjected. Additionally, over 2,000,000 Palestinians are subjected to an oppressive, murderous military rule in the west bank Palestinian territories, and another 2,000,000 Palestinians are subjected to sub-human conditions and "rounds" of slaughter in the Gaza ghetto, all preconceived already in a 2005 plan by Prime Minister Sharon and Prof. Aron Soffer. [xii]
Protest s and killing by police - dissenting Justice Karra briefly refers to reports issued following the October 2000 incidents, where the Israel Police shot and killed 13 Arabs. Needless to say, there has never been a similar instance of killing of Israeli Jewish protesters, but killing of Arab protesters or even uninvolved persons has been repeated even this year.
The recent HRW report sums up the situation: " About 6.8 million Jewish Israelis and 6.8 million Palestinians live today between the Mediterranean Sea and Jordan River, an area encompassing Israel and the Occupied Palestinian Territory (OPT), the latter made up of the West Bank, including East Jerusalem, and the Gaza Strip... Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians... In pursuit of this goal, authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain areas, as described in this report, these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution". [xiii]
References
i Basic Law: Israel - The Nation State Of The Jewish People - Unofficial translation by Dr. Susan Hattis Rolef , Knesset (2018) Click Here
ii Declaration of Independence of the State of Israel, Knesset (1948) Click Here
iii Richard Posner, Enlightened Despot, The New Republic (2007) Click Here
iv Mordechai Kremnitzer, The majority opinion ignored the reality of discrimination. The Arab Justice spoke the truth, and remained in solitude , Haaertz (2021) Click Here
vMenachem Mautner, Supreme Court's Surrealism, Haaretz (2020) Click Here
vi Supreme Court Judgment in MK Akram Hasson et al v Israeli Knesset et al ( 5555/18) paragraph 53 of Justice Karra opinion (2021) Click Here
vii Josef Federman and Mike Corder, ICC launches war crimes probe into Israeli practices, AP (2021) Click Here
viii Raunak Natur and Ron Gerlitz, 700 settlements for Jews, zero for Arabs, Haaretz (2018) Click Here
ix Raja Houri, Land policy and planning in Israel - no room for Arabs? Israel Democracy Institute (2013) Click Here
x Adi Rosenberg, Reort: Wide discrepancy between religious, secular and Arab public school budgets, Ynet (2017) Click Here
xi Lior Datal, Secular Jews are left behind: Religious students get a 30% higher budget, The Marker (2019) Click Here
xii Ruthie Blum Leibowitz , 'I didn't suggest we kill Palestinians', Jerusalem Post (2007) Click Here
xiii A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, Human Rights Watch (2021) Click Here
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