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The Nation State Law and the Arabic Language in Israel: Downgrading, Replicating or Upgrading?

Published online by Cambridge University Press:  07 June 2021

Mohammed S Wattad
Mohammed S Wattad*
Affiliation:
Dean and Associate Professor, School of Law, Zefat Academic College (Israel). Research Fellow, International Center for Health, Law and Ethics, Haifa University (Israel); [email protected].
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Abstract

Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.

Keywords

Nation State LawKing's Order in CouncilArab minorityIsraelofficial languagespecial status
Type
Articles
Information
Israel Law Review , Volume 54 , Issue 2 , July 2021 , pp. 263 - 285
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem

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Footnotes

I would like to dedicate this article to my two beloved daughters, Lady Lorraine and Emily. All opinions and errors (and, if applicable, errors of opinion) are my own.

References

1 Basic Law: Israel – The Nation State of the Jewish People (2018) (NSL). It is worth noting that the constitutionality of the NSL has been challenged before the High Court of Israel through more than a dozen petitions, including concerning the question with which this article is concerned; thus the matter is currently pending before the Court.

2 The King's Order in Council, 1922–1947, as amended in 1948 by s 15(b) of the Government and Legal System Organization Act. This is legislation of the British Mandate, which was described as the constitution of Eretz Yizrael (the Land of Israel); see Rubinstein, Amnon and Medina, Barak, Constitutional Law of the State of Israel, Vol II (5th edn, Schocken Books 1997) 1172Google Scholar.

3 See the Declaration of Independence of the State of Israel, 14 May 1948, referring to the legal status of the Arab minority citizens, as well as promising freedom of language, religion and culture. See also HCJ 4112/99 Adalah – The Legal Center for Arab Minority Rights in Israel v City of Tel Aviv-Jaffa, ILDC 13 (IL 200) (22 July 2002), opinion of Justice Dalia Dorner.

4 See Adalah, ibid; CA 105/92 Re'em Engineering Contractors Ltd v The City of Upper Nazareth (21 March 1993), 189; CA 4926/08 Wael & Co v National Water and Sewage Authority (9 October 2013); LCA 12/99 Mar'ei v Sabek (25 April 1999). See also Saban, Ilan and Amara, Muhammad, ‘The Status of Arabic in Israel: Reflections on the Power of Law to Produce Social Change’ (2002) 36 Israel Law Review 5CrossRefGoogle Scholar (arguing that there is a gap between the legal and the socio-political status of Arabic in Israel and that, given the present constellation in Israel, the socio-political status of Arabic cannot meaningfully be altered by legal means).

5 NSL (n 1) art 1(b).

6 ibid art 1.

7 ibid art 2.

8 ibid art 5.

9 ibid art 4.

10 ibid art 4(b).

11 ibid art 4(c). The validity of laws clause means recognition of already existing laws.

12 Meital Pinto, ‘Why Does Basic Law the Nation Worsen the Legal Status of Arabic’, ICON-S-IL, 31 October 2018 (in Hebrew), https://israeliconstitutionalism.wordpress.com/2018/10/31/%d7%a1%d7%99%d7%9e%d7%a4%d7%95%d7%96%d7%99%d7%95%d7%9f-%d7%91%d7%a0%d7%95%d7%a9%d7%90-%d7%97%d7%95%d7%a7-%d7%99%d7%a1%d7%95%d7%93-%d7%94%d7%9c%d7%90%d7%95%d7%9d-%d7%95%d7%a4%d7%a1%d7%a7%d7%aa-%d7%94-8; Elitzur Bar-Asher Siegal, ‘An Israeli Law that Seeks to Humiliate Arab Citizens’, Haaretz, 30 January 2019, https://www.haaretz.com/opinion/.premium-an-israeli-law-that-seeks-to-humiliate-arab-citizens-1.6895507; note the position of the Israeli Democracy Institute (in Hebrew), https://www.idi.org.il/media/11113/nation-state-law-explainer.pdf; Association for Civil Rights in Israel, ‘A Nationalistic and Racist Law that Violates the Rights of Minorities’, 19 July 2019 (in Hebrew), https://www.acri.org.il/post/___32?gclid=CjwKCAiAxMLvBRBNEiwAKhr-nPj-HK8LyyYHgmJ2OGyXRRJGSc-KbngecTuDFwelrbQZye7mIpd6AhoCOvgQAvD_BwE; Yonatan Mandel, ‘By Degrading Arabic, Israel has Degraded Arabs’, Haaretz, 20 July 2018, https://www.haaretz.com/by-degrading-arabic-israel-has-degraded-arabs-1.6292827. See also petitions against the constitutionality of the NSL, eg, HCJ 5866/18 The High Follow-Up Committee for Arab Citizens of Israel v The Knesset (12 August 2018) (particularly paras 65–57) (in Hebrew), https://www.adalah.org/uploads/uploads/Jewish_Nation_State_Law_Petition_Final_07082018.pdf.

13 Navot, Suzie, The Constitution of Israel: A Contextual Analysis (Hart 2014) 36–37Google Scholar; Wattad, Mohammed S, ‘Israel's Laws on Referendum: A Tale of Unconstitutional Legal Structure’ (2015) 27 Florida Journal of International Law 213, 221–26Google Scholar.

14 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village (9 November 1995) (this is considered a touchstone case in the constitutional legal history of Israel, in which the normative status of Israel's basic laws was discussed as well as the Court's power on judicial review).

15 Government and Legal System Organization Act (1948).

16 See, eg, Wael & Co (n 4) opinion of Justice Salim Jubran; Adalah (n 3) opinion of Justice Dalia Doner.

17 See, eg, sources at n 4.

18 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 25.

19 Wael & Co (n 4) opinion of Justice Eliakim Rubinstein, paras B and H.

20 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 25 (author's translation).

21 Adalah (n 3) opinion of Justice Mishael Cheshin; Mar'ei (n 4) opinion of Justice Mishael Cheshin.

22 Adalah (n 3) opinion of Chief Justice Aharon Barak.

23 ibid, opinion of Justice Dalia Dorner.

24 ibid, opinion of Justice Mishael Cheshin, para 10.

25 ibid paras 10–12.

26 Consider Saban and Amara (n 4) 21 (‘In sum, the scope and strength of the legal obligation with regard to the status of Arabic is more limited than is commonly thought’); Saban, Ilan, ‘Appropriate Representation of Minorities: Canada's Two Types Structure and the Arab-Palestinian Minority in Israel’ (2006) 24 Penn State International Law Review 587Google Scholar (‘It is true that Israeli law prima facie grants the Arab language the status of an official language; however, for various reasons, its official status holds little weight in practical terms’).

27 An assumption that Chief Justice Barak admits not to be made without doubts: Adalah (n 3) opinion of Chief Justice Aharon Barak, para 13. For the sake of clarity, it is worth noting that although Chief Justice Barak ultimately accepted the petition, he did not ground this on s 82 but rather on freedom of language and the rights to dignity and to equality as promised for the Arab minority in Israel in the Declaration of Independence: ibid paras 16–18.

28 See Education Regulations, regs 2 and 9(b), which recognise separate education systems in both the Arabic language and the Hebrew language.

29 s 2(11) of which recognises ‘the language, culture, history, heritage and unique tradition of the Arab population’.

30 reg 5 of which requires the council to recommend an educational and pedagogical policy that would guarantee the equality of Israeli Arab citizens while taking into account their unique language, culture and heritage.

31 s 3(3).

32 s 61 of which requires the government to broadcast in Arabic in order to meet the needs of the Arabic speaking population. The election laws allow for Arab voters to vote in their language by providing them with the ability to select a party ballot under the Arabic letter and name that the Election Committee has determined to correspond with the Hebrew version; voters can vote using the Hebrew ballot or the Arabic translation: Knesset and Prime Minister Elections Act, 1969 (integrated version), s 76(b); Local Government Act, 1965, s 51(b) (elections); Local Councils Order, 1958, s 184 (district councils); Local Government Act, 1975, s 7(c)(2) (electing a chairman, his deputies and their terms). Three out of these four laws explicitly provide for the use of a handwritten Arabic ballot, containing the Arabic letter alone: see Regulations for Knesset and Prime Minister Elections, 1973, reg 82(6); Local Councils Order, 1958, s 184(c); Electing Local Government Chairman Act, s 7(c)(4), all of which allow a handwritten Arabic ballot containing only Arabic writing. A similar provision does not exist in the Local Government Elections Act; however, the Court in Mar'ei (n 4), in a majority opinion, broadly interpreted the statute, determining that a handwritten Arabic ballot may be used, even for local elections.

33 UNGA Res 181(II) The Future Government of Palestine (29 November 1947), UN Doc A/RES/181.

34 Saban and Amara argue that the reason that s 82 of the King's Order recognises Arabic as an official language in Israel ‘owes its origins to certain historic and political constellations’; however, this recognition carries ‘almost no practical sociolinguistic consequence’: Saban and Amara (n 4) 8 and 34.

35 Adalah (n 3) opinions of Chief Justice Aharon Barak and Justice Dalia Dorner.

36 HCJ 2203/01 AVI – The International Association for Children Rights DCI – Israel v The National Insurance Institute (15 December 2005).

37 Wael & Co (n 4) opinion of Justice Salim Jubran.

38 Crim File (District Court – Jerusalem) 333/09 The State of Israel v Husin (5 January 2010), para 8.

39 Civil File (Jerusalem Court of Peace) 2636-09 Mustafa v Ali (24 June 2012) (all the litigants and witnesses in this case were Arabic speakers; it was only the Court that needed translation into Hebrew. The Court held that the legal status of Arabic as an official language is derived from s 82).

40 Adalah (n 3) opinion of Justice Dalia Dorner, para 6.

41 See HCJ 680/88 Shnitzer v The Military Censor (10 January 1989), para 8; Re'em (n 4) para B(4).

42 See Mar'ei (n 4) (Justice Mishael Cheshin assumed that voters in Arab villages might only know Arabic); see also Wippman, David, ‘Symposium: Human Rights on the Eve of the Next Century: Aspects of Human Rights Implementation: The Evolution and Implementation of Minority Rights’ (1997) 66 Fordham Law Review 597, 605Google Scholar.

43 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 12; opinion of Justice Mishael Cheshin, paras 12–15.

44 Adalah (n 3) opinion of Chief Justice Aharon Barak, paras 14–18; opinion of Justice Dalia Dorner, paras 5–7; Re'em (n 4) opinion of Chief Justice Aharon Barak, para 13.

45 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 6; opinion of Justice Mishael Cheshin, paras 55–62.

46 ibid, opinion of Chief Justice Aharon Barak.

47 ibid, opinion of Justice Dalia Dorner, paras 6–8.

48 ibid, opinion of Chief Justice Aharon Barak, para 23; opinion of Justice Dalia Dorner, para 6.

49 ibid, opinion of Chief Justice Aharon Barak, para 23.

50 ibid, opinion of Justice Dalia Dorner, paras 6–8.

51 ibid.

52 ibid, opinion of Chief Justice Aharon Barak, para 21. The word ‘Israelis’ refers to all citizens of the state of Israel, Jews and Arabs alike. Is it really true that Hebrew is also the language of Arab citizens?

53 Consider Pinto (n 12). Pinto is an expert in the field linguistic rights and is among the leading scholars in Israel who has written extensively on the legal status of Arabic in Israel; see, eg, Pinto, Meital, ‘On the Intrinsic Value of Arabic in Israel – Challenging Kymlicka on Language Rights’ (2007) 20 Canadian Journal of Law & Jurisprudence 143CrossRefGoogle Scholar.

54 Consider Pnina Sharvit Baruch, ‘The Ramifications of the Nation State Law: Is Israeli Democracy at Risk?’ Institute for National Security Studies, 1 August 2018, https://www.inss.org.il/publication/ramifications-nation-state-law-israeli-democracy-risk; Amal, Jamal, ‘Israel's New Constitutional Imagination: The Nation State Law and Beyond’ (2019) 18(20) Journal of Holy Land and Palestine Studies 193, 210Google Scholar.

55 Brandes, Consider Tamar Hostovsky, ‘Basic Law: Israel as the Nation State of the Jewish People: Implications for Equality, Self-Determination and Social Solidarity’ (2020) 29 Minnesota Journal of International Law 65, 79–80Google Scholar.

56 Consider Saban and Amara (n 4) 35 (‘We thus hold to our conclusion as outlined above: no deep change in the lingual reality of Israel is forthcoming either in the short or medium term’).

57 On this matter see the comments of Advocate Gur Blai, legal adviser to the Constitution, Law and Justice Committee in the Knesset, stating that to the best of his understanding it is largely agreed between the members of the Committee that Arabic should be considered as enjoying a second official legal status, but not a special status; thus Hebrew is the state language: Protocol No 15, Joint Committee of the Knesset Committee and the Constitution, Law and Justice Committee discussing the Bill on Basic Law: Israel – the Nation State of the Jewish People, 10 July 2018 (in Hebrew), https://main.knesset.gov.il/Activity/committees/Pages/AllCommitteeProtocols.aspx?ItemID=2073485.

58 Grey, Thomas C, ‘The Constitution as Scripture’ (1985) 37 Stanford Law Review 1, 14Google Scholar.

59 Barak, Aharon, Purposive Interpretation in Law (Princeton University Press 2005) 370CrossRefGoogle Scholar.

60 R v Big M Drug Mart Ltd [1985] 1 SCR 295 (Can), 344; Peter Hogg, Constitutional Law of Canada (4th edn, Carswell 1997) 819.

61 Hunter v Southam Inc [1984] 2 SCR 145 (Can), 156.

62 Kelsen, Hans, General Theory of Norms (M Hartney trans, Clarendon Press 1991) 346CrossRefGoogle Scholar; Steyn, Johan, ‘Interpretation: Legal Texts and Their Landscape’ in Markesinis, Basi (ed), The Coming Together of the Common Law and the Civil Law (Hart 2000) 73, 81Google Scholar.

63 Tomas, James C, ‘Statutory Construction When Legislation is Viewed as a Legal Institution’ (1996) 3 Harvard Journal of Legislation 191, 203Google Scholar.

64 Barak (n 59) 86–88.

65 Munzer, Stephen R and Nickel, James W, ‘Does the Constitution Mean What It Always Meant?’ (1977) 77 Columbia Law Review 1029CrossRefGoogle Scholar.

66 Barak (n 59) 81–94.

67 Amar, Akhil, ‘Intratextualism’ (1999) 112 Harvard Law Review 747CrossRefGoogle Scholar.

68 Tribe, Laurence, American Constitutional Law (3rd edn, Foundation Press 2000) 67Google Scholar.

69 Powell, H Jefferson, ‘Rules for Originalists’ (1987) 73 Virginia Law Review 659CrossRefGoogle Scholar.

70 Tribe (n 68) 40.

71 Dubois v R [1985] 2 SCR 350 (Can), 356; Tribe (n 68) 70.

72 Wael & Co (n 4) opinion of Justice Salim Jubran, paras 21–22.

73 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 25.

74 ibid, opinion of Justice Mishael Cheshin.

75 Re'em (n 4) 216, opinion of Justice Dov Levin.

76 ibid.

77 ibid.

78 Mar'ei (n 4) 142, opinion of Justice Mishael Cheshin.

79 Adalah (n 3) opinion of Chief Justice Aharon Barak, para 13.

80 BL 31534-05-18 (The Court for Local Issues in Tel-Aviv-Jaffa) The State of Israel v Mehgistv Desslg Zelalem (10 February 2019), para 3. It is worth noting that the Court did not refer at all to the term ‘official language’ either with regard to Hebrew or with regard to Arabic.

81 Protocol No 15, Joint Committee of the Knesset Committee and the Constitution, Law and Justice Committee (n 57).

82 Rubinstein and Medina (n 2) 1172, fn 2.

83 Adalah (n 3).

84 Consider also Saban (n 26) 590; Yitzhaki, Dafna, ‘The Status of Arabic in the Discourse of Israeli Policymakers’ (2013) 19 Israel Affairs 290, 337–38CrossRefGoogle Scholar.

85 Saban (n 26) 589–90.

86 Yitzhaki (n 84) 352–54 (Analysis of data from a series of focus group sessions shows the linguistic rights and privileges that may be derived from a group's indigenous status – that is, from the fact that it existed as a unique group prior to the establishment of the state); Pinto, Meital, ‘Taking Language Rights Seriously’ (2014) 25 King's Law Journal 231, 232–44CrossRefGoogle Scholar (arguing that ‘existing arguments supporting restrained judicial interpretation of language rights are ill founded’). Consider also Pinto, Meital, ‘Who is Afraid of Language Rights in Israel?’ in Nachtomy, Ohad and Sagi, Avi (eds), The Multicultural Challenge in Israel (Academic Studies Press 2009) 26Google Scholar; Jabareen, Yousef T, ‘The Politics of Equality: The Limits of Collective Rights Litigation and the Case of the Palestinian-Arab Minority in Israel’ (2013) 4 Journal of Race and Law 23Google Scholar.

87 Pinto (2014), ibid 240.

88 Bill: Basic Law: Israel – The Nation State of the Jewish People, 13 March 2018.

89 Consider Saban and Amara (n 4) 6–9; consider also Amal (n 54) 211.

90 eg, HCJ 5555/18 MK Akram Hasson v The Knesset.

91 GCA 815/19 Gareeb v Fidam Select (in Liquidation) Company no B89058 (5 Feb 2019) (author's translation).

92 HCJ 8676/18 Kabaha v Minister of Justice (14 May 2019).

93 Wattad, Mohammed S, ‘Israel as a Jewish vs. Democratic State’ in Siniver, Asaf (ed), Routledge Handbook on the Israeli-Palestinian Conflict (Routledge, forthcoming 2021)Google Scholar.

94 Cohen-Almagor, Raphael and Wattad, Mohammed S, ‘The Legal Status of Israeli-Arabs/Palestinians in Israel’ (2019) 1 GNLU Law & Society Review 1Google Scholar.

95 HCJ 73/53 Kol Ha'am Co. Ltd. v. Minister of the Interior (16 October 1953) 871, 885.

96 See generally Wattad, Mohammed S, ‘Israel at 70: The Rule of Law and the Judiciary’ (2018) 23(3) Israel Studies Journal 172Google Scholar; Hofnung, Menachem and Wattad, Mohammed S, ‘The Judicial Branch in Israel’ in Reuven Hazan and others (eds), The Oxford Handbook of Politics and Society in Israel (Oxford University Press 2018) 1Google Scholar.