Adalah and ACRI: Israeli High Court Ignored the Chilling Effect Already Caused by the "Nakba Law"
HCJ: "The questions that this law raises will only become clear with its implementation"
Adalah and ACRI: The High Court ignored the chilling effect of this law, and missed the opportunity to tell legislators that there are limits to their anti-human rights actions. This law encourages discrimination against the Arabs in Israel.
In response to the Supreme Court's decision (HCJ 3429/11; delivered 5 January 2012) in regard to the "Nakba Law," Adalah and the Association for Civil Rights in Israel (ACRI) said today:
"This court ruling ignores the fact that already this law in practice harms both the freedom of expression and the civil rights of Arab citizens, even before its implementation. Because the law's formulation is so broad and vague, many institutions have already begun and will self-censor in order not to risk incurring penalties. Today, the High Court of Justice missed an opportunity to make clear to legislators that there are limits to their anti-human rights steps, particularly to the targeting of the human rights of Israel's Arab population. We will continue to monitor cases of concrete injury and will consider returning to the courts."
Israeli Supreme Court President Dorit Beinisch and Justices Eliezer Rivlin and Miriam Naor wrote in their ruling that, "The declarative level of the law does indeed raise difficult and complex questions. However, from the outset, the constitutionality of the law depends largely upon the interpretation given to the law's directives." The human rights organizations explained this morning that the mere passage of this law in the Knesset, even before it affects the budget of any organization or institution, created a series of negative effects: limiting freedom of speech, creating a chilling effect on public debate, and violating the rights of Palestinian citizens of Israel to maintain and express there identity and historical narrative, which is a constitutive element of their identity.
Attorney Dan Yakir, Legal Advisor of the Association for Civil Rights in Israel added: "It is regrettable that although the High Court ruled that the Nakba law raises complex issues of public importance, which gets to the root of the problems that divide Israeli society, it chose to avoid ruling on these issues until a concrete case occurs. The court completely ignored the claims regarding the chilling effect of this law, which forces state-supported entities to risk a significant reduction in their budgets before the law will be considered for judicial review. In this, it limits free speech."
Attorney Sawsan Zaher of Adalah said today following the ruling: "There is a concern that the legitimation of this law by the court could encourage the Knesset to introduce additional racist legislation against Arab citizens. This law seeks to present the identity and the narrative of Arab citizens in the lowest possible way and it legitimizes the continuation of deep discrimination against them. We expected that the HCJ would rule on the merits of this petition and void the law in order to address the weighty claims that exist in this context, especially regarding the harm this law does to freedom of expression and human dignity. This law is extremely discriminatory laws against Arab citizens, the likes of which were seen solely in dark regimes in the past. However, currently, this law has no parallel in any democratic country in the world."
An amendment to the Budget Principles Law of 1985, called the "Nakba Law", was enacted by the Knesset in March 2011. This amendment empowers the Minister of Finance to fine public bodies that benefit from public funding (for example schools, universities, or local authorities) if they hold events that commemorate "Independence Day or the day of the establishment of the state as a day of mourning." They could also be fined if they hold events that aim to revoke "the existence of Israel as a Jewish and democratic state." The ambiguous wording of this law raises concerns that fines will be imposed for holding events in which the Nakba is mentioned in any way, not only on Independence Day but throughout the year, and for criticism of the definition of a Jewish and democratic state.
In the petition filed against the law on May 4, 2011, Attorneys Hassan Jabareen and Sawsan Zaher of Adalah, and Dan Yakir of ACRI explained that the law is anti-democratic and severely and fundamentally injures the basic civil rights of Arab citizens in Israel, including freedom of expression, artistic and political freedom, the right to equality, the right to dignity, the right to education, and Academic freedom and freedom of occupation.
The petition was submitted by both organizations on behalf of the Alumni Association of the Arab-Orthodox High School in Haifa, which holds various public education events about the Nakba and the nature of the "Jewish and democratic" state in the school; parents of students at the Arab-Jewish school "Galilee" in Misgav, in which educational activities are held commemorating Independence Day alongside events commemorating the Nakba; and geographer Professor Oren Yiftachel of Ben Gurion University whose research and academic work criticizes the definition of the state as "Jewish and democratic."
Full position paper written by ACRI on the Nakba Bill (English)
Link to English excerpts of the petition challenging the Nakba law