A day of mourning – more – for Arab members of the Knesset – Juliette RECH

14 September 2006. Aharon Barak, 70, reached the age limit for the presidency of the Israeli Supreme Court on that day. The man bows out in the court of the highest court of the country, in front of a crowd of several hundred people who greatly exceeds the staff of the Court. His notoriety is suspicious. The austerity of its function generally does not reserve such popularity to those who occupy it. But Aharon Barak has far exceeded his role as a servant of the law. The religious right, then destined to exert a growing influence, accuses it of having perpetrated a coup d'etat. The "putsch" dates back more than ten years back to February 1992.
Several Likud deputies then took advantage of the collapse of party discipline to pbad two fundamental laws, one on professional freedom and the other on the "dignity and freedom of the individual". Parliamentarians are probably not aware of opening a confrontation that continues today.
Judge Barak soon seizes the opportunity to enshrine the two laws at a level equivalent to a Constitution, which Israel does not formally dispose of, among other things because of the hostility of religious parties to any form of sanctified "supralegality" above Jewish law. In the Bank Hamizrahi case, judged on November 9, 1995, Aharon Barak recognizes the superiority of the Basic Law over "dignity and freedom" over ordinary law. It is on this same legal basis that five years later, the Court rules that Adel and Iman Qaadan have the right to buy a house in the new locality of Katzir, which a private communal regulation had excluded them on the grounds that the couple was not Jewish. A divine anger falls on the judge. One of the leaders of the ultraorthodox camp launches in the Knesset: "Even if you agree to proclaim that the Ten Commandments now form the Constitution of the State, we would refuse, because of the power of interpretation of the Supreme Court. Although Israel may be Jewish as England is English, according to a formula by Chaim Weizman, the right wing of the right believes that the state is in danger.

Nation-State Law
The "Nation-State" Bill, adopted on Wednesday at 62 votes to 55, is the first dynamite stick placed at the foot of the foothills that Aharon Barak has dedicated 27 years of his career to building around the rule of law. "This is a decisive moment in the annals of Zionism and the history of the State of Israel," Benjamin Netanyahu said at the end of a painful parliamentary session, where a hundred amendments were Hardly debated and voted. The vote of the text at third reading is the epilogue of a legislative battle that lasted seven years. Since his birth certificate, August 3, 2011, the project officially named "Basic Law: Israel, the nation-state of the Jewish people" has certainly lost much of its substance. Two controversial clauses were withdrawn at the last minute. One legally covered the creation of urban communities on the basis of religion or nationality, which the Supreme Court had banned in the Qaadan case. The other required the courts to rely on the Halakha (Talmud-based Jewish law) in the absence of civil jurisprudence. These two provisions were the most "operational" of the text. They would have provided powerful legal tools to discriminate against Arab citizens.

The Arab demoted
The final text is a page and a half very airy. Much of it states evidences, such as "The name of the state is Israel" (Clause 1A), "The flag of the state is white with two blue stripes around the edges and a blue star of David in the center" (2B ), as well as several provisions on the official calendar, the days of rest, the national anthem, the symbols of the State and the openness of Israel to Jewish immigration. Taken separately, these provisions do not change anything. But the fact of grouping these general truths into one and the same text confers on the law the physiognomy of a true Constitution. The law brings together issues that are no longer really in question with other issues that have emerged from the dormant status quo, such as the official language. No law has ever said clearly what the language of the State of Israel was. Hebrew and Arabic are used in all government documents, signage in major cities is trilingual (Hebrew, Arabic and English), and the Knesset's bylaw does not explicitly prohibit MPs from using Arabic in parliamentary debates. Hebrew obviously dominates public life overwhelmingly, simply because the majority of Israeli Arabs are Hebrew, and the reciprocal is not true. The new text puts an end to the ambiguity: "The language of the state is Hebrew" (4A) and "The Arabic language has a special status in the state" (5A).

A step towards "Greater Israel"
Provisions 1B and 1C go further. The first states that "the State of Israel is the national home of the Jewish people, in which they fulfill their natural, cultural, religious and historical right to self-determination". Defenders of the law present these words as a simple transcript of the 1948 Declaration of Independence. But the terms "natural, cultural, religious and historical right to self-determination" do not appear anywhere in the 1948 text, which cites another "type" of right to self-determination, universally recognized by all national groups. Conversely, religious, historical and cultural references are exclusive. It was enough to legally prohibit the same right to non-Jews. Clause 1C, however, reinforces: "The right to exercise national self-determination in the State of Israel is unique to the Jewish people.
The text gives the misleading impression of legislating on a fait accompli. Invited Wednesday evening on the set of I24 News to debate the law with former MP Michael Kleiner, the former Israeli ambbadador to France, Daniel Shek, questioned his opponent: "Why legislate on something that is obvious? Personally, I do not feel the need to have legislation that affirms the raison d'être of this state, the State of the Jews. The question seems candid to a man like Mr. Kleiner. The latter split the Likud, which he criticized for the sluggishness of his convictions on the occupied territories, to create the Kherout movement, pleading unvarnished for the annexation of the Territories and prescribing dubious solutions to the adjacent demographic problem. Israel is a Jewish state because Jews are the majority and therefore politically dominant. The nation-state law has a soft focus on the boundaries of the state to which it attributes its symbols, its official language and its calendar. It secures its Jewish character even in a configuration where Jews would no longer be the majority. For example, if the Territories were formally annexed. The response of law rapporteur Avi Ditcher (Likud) to Arab MPs this morning speaks volumes: "We have pbaded this Basic Law to prevent any hint or attempt to turn the State of Israel into a nation of all its citizens. The term "state of all its citizens" is a finding of Azmi Bechara, Arab MP Balad until 2007. The wording sought to circumvent a 1985 law, which prohibited parties denying the Jewish character of State to participate in elections. It had opened a public debate on the discriminatory consequences for the Arabs of the Jewishness of Israel. The new law puts a key trick on the debate.
On the night of Wednesday to Thursday, the head of the United Arab List, Ayman Odeh, rose to the rostrum of Parliament to use his statutory speaking time. Before beginning his speech, he hoisted a black flag at the highest point of the floor of the badembly.

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