The Palestinian Minority in the Israeli Legal System

Israel's Declaration of Independence (1948) states two principles important for understanding the legal status of Palestinian citizens of Israel. First, the Declaration refers specifically to Israel as a "Jewish state" committed to the "ingathering of the exiles." While such references to the Jewish nature of the state permeate the Declaration, it contains only one reference to the maintenance of complete equality of political and social rights for all its citizens, irrespective of race, religion, or sex. There is a tension between these two principles, in that the first emphasizes the Zionist character of the state, which privileges one group, the Jewish people, and the second mentions the universal status of each citizen in a democracy.

Discriminatory laws

Adalah's report to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, issued August/September 2001 and entitled Institutionalized Discrimination Against Palestinian Citizens of Israel, identifies more than 20 laws that discriminate against the Palestinian minority in Israel. The report shows that the Jewish character of the state is evident in numerous Israeli laws. The most important immigration laws, The Law of Return (1950) and The Citizenship Law (1952), allow Jews to freely immigrate to Israel and gain citizenship, but excludes Arabs who were forced to flee their homes in 1947 and 1967. Israeli law also confers special quasi-governmental standing on the World Zionist Organization, the Jewish Agency, the Jewish National Fund and other Zionist bodies, which by their own charters cater only to Jews. Various other laws such as The Chief Rabbinate of Israel Law (1980), The Flag and Emblem Law (1949), and The State Education Law (1953) and its 2000 amendment give recognition to Jewish educational, religious, and cultural practices and institutions, and define their aims and objectives strictly in Jewish terms.

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Government discrimination

Further, the discretionary powers entrusted to various government ministries and institutions - including budget policies, the allocation of resources, and the implementation of laws - results in significant de facto discrimination between Jewish and Palestinian citizens. For example, a report issued by the Ministry of Interior confirmed that Arab municipalities received a fraction of the total funds allocated by the national government per resident to Jewish settlements in the Occupied Territories and to development towns populated exclusively by Jews. Moreover, the Ministry of Religious Affairs affords a small percentage of its budget to the Arab Muslim, Christian, and Druze religious communities. Funds for special projects such as the renewal and development of neighborhoods and improvements in educational programs, services, and facilities are also disproportionately allocated to Jewish communities. To date, Israeli authorities have rarely used their discretionary powers to benefit the Palestinians minority.

Land expropriation

Most importantly, the Israeli government has maintained an aggressive policy of land expropriation, adversely affecting Palestinian land and housing rights. For example, the National Planning and Building Law (1965), retroactively re-zoned the lands on which many Arab villages sit as "non-residential." The consequence of this is that despite the existence of these villages prior to the establishment of the state, they have been afforded no official status. These "unrecognized Arab villages" receive no government services, and residents are denied the ability to build homes and other public buildings. The authorities use a combination of house demolitions, land confiscation, denial of basic services, and restrictions on infrastructure development to dislodge residents from these villages. The situation is severely acute for the Arab Bedouin community living in these unrecognized villages in the Naqab.

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The Basic Laws

In 1992, the Knesset passed two important Basic Laws - The Basic Law: Human Dignity and Liberty and The Basic Law: Freedom of Occupation - which, for the first time, contain "constitution-like" protections for some civil liberties and human rights. The Basic Laws, considered a mini-bill of rights by Israeli legal scholars, do not explicitly protect the right to equality. On the contrary, this Basic Law emphasizes the Jewish character of the state, and undermines the rights of "non-Jewish" citizens. However, even with the passage of these Basic Laws, Israel still has no law that "constitutionally" guarantees the right of equality for all. Although several ordinary statutes protect the equal rights of women and people with disabilities, no Basic Law or general statute guarantees the right to equality for the Palestinian minority.

According to Supreme Court Chief Justice Barak, the Basic Law: Human Dignity and Liberty empowers the Supreme Court to overturn Knesset laws which are incompatible with the following enumerated rights: the rights to dignity, life, freedom, privacy, property, and the right to leave and enter the country. While the right to equality is not expressly included, a 1994 amendment to this Basic Law states that the principles enunciated in the Declaration of Independence are part of the values protected by the Basic Law. As a Supreme Court panel stated in 1994, "The equality principle is incorporated in the Basic Law: Human Dignity and Liberty. This incorporation means that the principle of equality is raised to the level of a high normative constitutional right."

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Supreme Court Decisions

Numerous landmark decisions delivered since 1994 appear to indicate an increased willingness on the part of the Supreme Court to apply the equality principle in cases involving the rights of gays and lesbians, women's rights, and age discrimination. The Supreme Court has held that a partner of a gay man or lesbian must be recognized as a 'spouse' to avoid discrimination based on sexual orientation for purposes of receiving benefits from an employer; that the army's policy of prohibiting women soldiers from registering for pilot courses is illegal gender discrimination; and that women must be afforded appropriate representation on government corporate boards and in top managerial positions in public institutions.

The Supreme Court has also very recently delivered some forward-looking decisions in cases involving the rights of Palestinians in Israel. In March 2000, the Supreme Court held in the Qa'dan case that the State is prohibited from allocating "state land" based on national belonging or using "national institutions" such as the Jewish Agency to discriminate on its behalf. This case involved the right of a Palestinian family - citizens of Israel - to live in the Jewish settlement of Katzir.

Further, in April 2000, the Supreme Court held that funds for religious cemeteries must be distributed equally to Jewish and Arab religious communities, according to the percentage-of-the-population criteria. The Court in this case ruled that national belonging is irrelevant to the interest implicated in the policy at hand - the interest in a dignified burial - and thus the discrimination constitutes a violation of the principle of equality.

Moreover, in response to a petition demanding fair representation of Palestinian citizens on the Israel Lands Administration Council (which, prior to the filing of the petition, did not have a single Arab member), the Supreme Court in July 2001 issued a decision endorsing the application of fair representation standards. The Council agreed to reinstate a previous Arab appointment, and the Court, in its ruling, asked the Council to consider appointing an additional Arab representative. Most importantly, the Supreme Court held, for the first time, that the state has a positive obligation - albeit not a statutorily recognized one - to guarantee fair representation of Palestinian citizens in public bodies, especially those vested with decision-making powers.

Despite these important new rulings, it is necessary to emphasize three important points: (1) an extended bench of the Supreme Court has not recognized the principle of equality as a "constitutional right" in any written decision to date; (2) the Supreme Court has not ordered the initiation of affirmative action programs as a remedy, even after a finding of state discrimination against Palestinian citizens; (3) the Supreme Court remains very reluctant to rule on cases presenting serious challenges to the dominant political ideology of the state, or requiring fundamental changes in Israeli society or political culture, even when these cases are grounded on strong legal reasoning.

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International human rights conventions

Israel has ratified the most important international human rights conventions, which contain minority rights protections. According to these international instruments, the Palestinian community in Israel constitutes a national (Palestinian), as well as an ethnic (Arab), linguistic (Arabic), and religious (Muslim, Christian, Druze) minority, and as such is to be afforded minority rights protections. While Israel's international human rights obligations are not currently binding on Israeli domestic courts, these principles provide persuasive authority for mounting minority group rights claims. Recent developments in Israeli domestic law and international human rights law provide support for claims of group discrimination and the state's obligation to afford positive rights to the Palestinian minority in Israel. It should, however, be noted that Israel has no independent Human Rights Commission which can uphold such claims.