The Legal Status Of The Arabs In Israel

David Kretzmer

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367308940
• eBook ISBN: 9781000302905
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Middle Eastern Politics
• Index: Politics & International Relations

This study examines how the Israeli legal system copes with two major issues. The first is the tension between the constitutional definition of Israel as both a Jewish state and a democracy committed to equal rights for all of its citizens. The second issue is the delicate position of a national minority in a state that since its establishment has been involved in a bitter conflict with the Palestinian nation to which that minority belongs.

1
Israel’s Constitutional and Legal System

It is impossible to understand the legal status of the Arabs in Israel without an appreciation of the general constitutional and legal framework of the country. A brief introduction to Israel’s constitutional and legal system is therefore in order.

The Constitutional System

Lack of a Formal Constitution

Israel’s Declaration of Independence of May 14, 1948 stated expressly that the new state’s permanent and elected governmental organs would be established under a constitution to be determined by an elected constituent assembly. The said constituent assembly was duly elected, but even before its election opinion was divided over whether the time was ripe for drawing up a formal constitution. The result of this debate was a compromise, known as the Harari Resolution. According to this resolution Israel’s constitution would not be drawn up immediately by the constituent assembly, which by then had become the first Knesset, but would be enacted step by step in a series of “basic laws” to be prepared and submitted to the Knesset by its Constitution and Law Committee. On the strength of this resolution a number of basic laws have been enacted by the Knesset. While these basic laws, which include basic laws on the Knesset, Government, Judiciary and Army, are an important contribution to Israel’s constitutional structure, the state’s formal constitution is still far from complete. In the first place, in spite of a number of attempts to present a bill of rights to the Knesset, no such bill has been enacted. Secondly, no law as yet deals with the relationship between the basic laws and the ordinary laws of the Knesset. In the absence of a law giving the basic laws superior normative status the Supreme Court has held that the basic laws have no inherent superior status.¹ This means that the “Knesset as the legislative branch of the state is sovereign and has the power to pass any law it likes…”²

In the first years of the state, before any basic laws had been passed, attempts were made to persuade the Supreme Court that it could base judicial review of statutes on principles enshrined in the Declaration of Independence, such as the principles of equality and freedom of religion.³ The Supreme Court was not receptive to these attempts; it held that the Declaration of Independence is not a “constitutional law which determines the validity or invalidity of ordinances and statutes.”⁴

In the light of the above, the following summary of the constitutional position must be accepted as central to the present discussion; with one exception, which relates to laws that are inconsistent with one of the few entrenched clauses in the basic laws,⁵ the Supreme Court of Israel will not undertake judicial review of the validity of primary legislation, i.e., statutes passed by the Knesset or British Mandatory legislation that has the status of Knesset legislation. Thus even statutes which offend basic civil rights, or contradict principles enshrined in the Declaration of Independence, such as the principle of equality, will not be struck down on this account by the Supreme Court.

Civil Rights in the Absence of a Formal Constitution

The fact that a statute which offends civil rights may not on that account be invalidated by the Supreme Court does not mean that civil rights have no status in Israel’s legal system. In a long series of decisions, which began with the historic decision of Agranat J. in Kol Ha’am v. Minister of Interior,⁶ the Supreme Court has held that certain basic civil liberties, while not entrenched in the statute book, enjoy the status of legal principles in Israel’s legal system.⁷ These principles guide the courts in interpreting statutes, in determining the limits of administrative discretion and in examining the validity of delegated legislation. Thus, while civil liberties, such as freedom of speech and the right to demonstrate, do not enjoy the status they enjoy in a system such as the American one, in which statutes inconsistent with them may be struck down, they do fulfil an important function in the Israeli legal system.

Equality as a Legal Principle

Among the principles that have been judicially recognized as constitutional principles in the manner described above is the principle of equality.⁸ This principle was stated in the following way by Haim Cohn J. in Yafora Ltd. v. Broadcasting Authority:⁹

It is the law (although at present unwritten) that any discrimination on the grounds of race, sex, belief, political or other opinion, …, is forbidden for every body acting under law.

In a leading case, that dealt with the attempt of the authorities to prevent purchase of property by a German Christian missionary, the Supreme Court explained the special status of the equality principle in the following manner:

When we were exiled from our country and removed from our land we became victims of the nations of the world among whom we lived, and throughout the generations we tasted the bitterness of persecution, oppression and discrimination merely because we were Jews “whose religion is different from that of other peoples.” Given this sorrowful experience, which deeply affected our national and human consciousness, it is to be expected that we will not adopt these aberrant ways of the nations of the world, and now that our independence has been renewed in the State of Israel we must be careful to prevent any hint of discrimination towards any law-abiding non-Jew among us who wishes to live with us in his own way, according to his religion and belief… We must exhibit a human and tolerant attitude towards anyone created in the divine image and maintain the great rule of equality in rights and obligations between all persons.¹⁰

Similarly, the Attorney General, in a leading opinion which will be discussed below, wrote as follows:

Equality before the law is a basic principle of Israel’s legal system… [This principle] has grown to become a well-rooted, binding legal rule.¹¹

On the basis of this principle of equality the Supreme Court has held that a local authority which leases out its premises, although not bound by law to dp so, may not discriminate between citizens on the basis of their religious belief.¹² It has declared that “discrimination on grounds of religion or race will be regarded as improper use of administrative discretion, even if that discretion is absolute,”¹³ and that all statutory provisions must be construed so as to further the principle of equality before the law.¹⁴

The most important legal document regarding the legal implications of the principle of equality vis-à-vis the Arabs in Israel is not a decision of the Supreme Court, but rather an opinion of the Attorney General.¹⁵ The background to this opinion was a clause in the coalition agreement between two political parties in the local council of Kiryat Arba, a Jewish settlement on the outskirts of the West Bank town of Hebron. According to this clause the parties undertook to dismiss all Arab employees of the local council, and to encourage private Jewish employers to dismiss Arab employees and to engage Jewish employees in their stead. The law which applied to this agreement was West Bank law, and not domestic Israeli law, but the Attorney General, in his opinion on the legality of the said clause, analyzed the position under Israeli law before turning to an analysis of West Bank law. The Attorney General stressed the centrality of the equality principle in the Israeli legal system, and the seriousness with which the law regards discrimination on the basis of race or national origin. He ruled that in light of this principle the clause in the coalition agreement was void, as it was illegal, immoral or against public policy.¹⁶ Finally, the Attorney General declared:

It is absolutely clear that if this agreement had been made by a local council in Israel the courts would have forbidden the council to rely and to act on [the] clause [..], as it violates the principles of administrative law.¹⁷

Statutory Recognition of Equality Principle

The principle of equality has not remained solely the creation of judicial legislation. It has been given express statutory recognition in two pieces of legislation, one primary, the other delegated.

The Employment Service Law, 1959. This statute obligates employers who wish to employ workers in certain sectors of the economy to do so through the official labor exchange. The original statute forbade the labor exchange to discriminate between workers in sending them to work; it also forbade employers who employed workers through the exchange to discriminate in accepting them for work. It did not, however, prohibit discrimination in employment in those sectors in which there was no duty to employ through the labor exchange. The statute was amended in 1988, and section 42(a) now provides:

In sending persons to work the labor exchange shall not adversely discriminate against a person on account of his age, sex, race, religion, national group, country of origin, views or party affiliation, and a person requiring an employee shall not refuse to engage a person on account of any of these, whether the person was sent to work through the labor exchange or not.¹⁸

The interesting thing about this provision, besides the statutory adoption of the equality principle discussed above, is that the principle is applied to private employers, and not only to the official labor exchange, which, as a public body acting under law, would in any case be bound by this principle. As we shall see below, this is an exception to the ordinary rule which allows private individuals the liberty to discriminate.

Higher Education Council Rules (Recognition of Institutions), 1964. The Higher Education Council Law, 1959 grants the Council for Higher Education sole authority to grant recognition to institutions of higher education in Israel. Section 24 of the said law empowers the Council to promulgate rules for control of degree-granting in institutions of higher education. Rule 9 of the above-mentioned rules states:

In accepting students and appointing academic staff, an institution of higher education shall not discriminate between different candidates solely on account of their race, sex, religion, national group or social status.

Limitations of Equality Principle

It should now be apparent that the principle of equality is not merely a pious statement of intent adopted in the Declaration of Independence. The principle has been granted legal status both in decisions of the Supreme Court and in legislative acts. Nevertheless, the importance of this principle notwithstanding, it is essential to appreciate its limitations. The first limitation, which may be regarded as a corollary of the lack of a formal constitution, is a limitation of all judicially legislated principles in the Israeli legal system. These principles are “soft” legal principles. They cannot overcome contrary provisions in primary legislation. Thus, for example, a statute of the Knesset which adopts a criterion for allocation of benefits that involves covert discrimination against Arabs, may not be struck down on that account by the courts.

The second limitation of the equalit...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction
• 1 Israel’s Constitutional and Legal System
• 2 The Jewish State: Constitutional Implications
• 3 Citizenship and Population Registration
• 4 Control of Land
• 5 Political and Social Equality: The Problem of Discrimination
• 6 Overt and Covert Discrimination
• 7 Institutional Discrimination
• 8 The Security Issue
• 9 Group Rights
• Epilogue
• Select Bibliography
• Legislative Documents (Statutes and Regulations)
• Table of Cases
• Index