Mondoweiss / December 3, 2020
An Israeli court dismissed a discrimination suit filed on behalf of two Palestinian children living in the town of Karmiel by claiming the Nation State Basic Law permits discrimination against non-Jews.
Two years ago Israel passed a law defining the country as the “Nation State of the Jewish People,” and now the rubber is meeting the road. Yaniv Luzon, a registrar of the magistrate’s court outside Haifa, dismissed a discrimination suit by the uncle of two Palestinian children living in the town of Karmiel, and cited the Nation Basic Law as permitting discrimination, reported Ha’aretz (Hebrew).
The uncle sued the town on behalf of the children, saying that it does not have a school for Arabic-speaking children, and therefore it should reimburse the children for the expenses of sending them to Arabic-speaking schools in neighbouring towns. The suit assessed the reimbursement at 25,000 NIS (some $7,200) over several years.
In his decision to dismiss the suit, Luzon wrote that “Karmiel, a Jewish town, was founded in order to support the Jewish settlement of the Galilee […] The building of an Arabic-speaking school, as well as funding transportation for Arab students, to anyone and for anywhere, may change the demographic balance and harm the town’s demeanour (at this time, 6% of the town’s population is Arab).” So because it’s a Jewish town, the state has no obligations to meet the needs of its Palestinian minority.
Luzon then grounded his decision in the Nation State Law:
“Article 7 of the Basic Law: Israel as the Nation-State of the Jewish People says: ‘The State sees Jewish settlement as a national value, and will act so as to encourage such settlement and promote its founding and establishment.’ As the development of Jewish settlement and its support is a national value enshrined in a Basic Law, it should be considered a valid and dominant consideration in the town’s system of considerations, including the building of a school and setting policy regarding the funding of busing students out of town.”
Israel has no constitution. It has several Basic Laws instead. Basic Laws suffer from a major weakness: They can be enacted with any majority of the parliament (technically, a majority of 2:1 will suffice). As Netanyahu has grown in power, he changed Basic Laws time and time again, using his makeshift coalitions. The current government, officially having two heads (with Netanyahu as Prime Minister and Gantz as “surrogate Prime Minister”), for instance, is based on an unnatural mutation of the Government Basic Law. The Nation State Basic law could be revoked by any majority in the Knesset, and yet the chances of gathering such a majority in the foreseeable future is slim.
The Blue-White Party, Netanyahu’s governing partners, had announced they would remake the Nation State Law – in order to give explicit rights to non-Jews, chiefly the Israeli Druze (who are conscripted into the army). Blue-White has not done so. On Wednesday, Blue-White pulled back a bill promising equality to all Israelis after two hawkish Members of Knesset, formerly part of Blue-White, announced they will vote against it.
You read that right: An attempt – one in many – to enshrine equality in Israeli law was shot down, and was not even brought to a vote.
The Nation State Law has been the apple of the eye of the Israeli right-wing for about a decade now, ever since the late, unlamented “center” party Kadima brought the bill forward. Netanyahu blocked it for several years, fearing international outrage; but, following Trump’s election, and needing to solidify the right-wing around him in what would become the first election of 2019, he brought it forward two years ago and had it passed. The right-wing kept claiming this is not an Apartheid law, as it was “only a declaration” of principles. But Palestinian citizens of Israel and human rights organizations have long warned that a ruling like Luzon’s was the logical culmination of the law.
The High Court of Justice is considering whether the law is constitutional – but, it being a Basic Law, backed by the Knesset, there seems to be no valid legal ground for the Court to strike it down. There is certainly no precedent for such a move. The President of the Court, Esther Khayout, spoke at a conference several months ago and argued the Court has no powers to strike down a Basic Law. While Khayout did not mention the Nation Law by name, there aren’t all that many Basic Laws challenged in the Court. As is common in such controversial cases, Khayout is likely to delay the Court’s ruling as long as she can.
Her dilemma is simple: Rule the law constitutional, and she will legalize Apartheid. Such a ruling is likely to not play well in Khayout’s wider milieu, that of high court judges around the world. Striking the law down, however, will lethally wound the Court’s legitimacy – and polls every year show it is bleeding legitimacy. If she plays her cards right, however, she could roll the case over to her successor (Khayout is to leave the bench in October 2023).
Luzon’s decision, however, is likely to be legally challenged. Luzon is simply too low on the legal ladder to make a definitive ruling. It is quite likely that a District Court will rule that a mere Peace Court Registrar cannot make a ruling based on a law still facing a legal charge in the High Court of Justice.
Law or no law, however, the basic reality on the ground – that a country built on Zionist ideology will, by necessity, be an Apartheid country – is not likely to change soon.
Yossi Gurvitz is a journalist and a blogger, and has covered the occupation extensively