The changes in the legal system and their effect on the regime and the Palestinian minority in Israel

Summary

The new proposed legislation that will be passed as part of the new government’s coalition agreements are liable to cause harm to the weakest segments of Israeli society, and in particular Palestinian citizens of Israel.

Laws related to strengthening Jewish settlement, reinforcing Jewish identity in the education system, changing the policy on immigration to Israel and punishment of terrorists, as well as extending the pretexts for disqualifying candidates or lists from Knesset elections will now be protected from judicial review, even if it is found that they discriminate against Palestinian citizens of the State.

The assignment of broad powers to the Minister of National Security in order to deal with so-called “nationalist crime” and the creation of a designated unit that will report directly to him are liable to exacerbate the over-policing suffered by the Arab population for so many years.

Within Arab society, one can identify two basic approaches to the grassroots demonstrations against the changes in the judicial system. The first shows interest in the expected changes and understands that even if the current situation is bad, it could be much worse. In contrast, the other approach is not involved in what is happening ¬ – not out of apathy towards the situation but rather a deep feeling of despair and a lack of trust in the State’s institutions.

Introduction

The changes being made to the Israeli Basic Laws, some of which have already passed First Reading in the Knesset, have aroused strong objections and emotions among the Israeli public and primarily the Jewish public. These changes will lead to fundamental changes in Israel’s regime and will transform it from a democracy into a regime controlled solely by the government, with no proper checks and balances.

The changes have five main components: (1) Government control of the Judicial appointment Committee and the transformation of the process for appointing judges—and in particular Supreme Court judges—from a professional process to an essentially political one.[1] (2) The restricting of juridical review of Basic Laws and limiting the courts to the review of only regular laws, and even then only in the case of laws that explicitly violate a basic right anchored in a Basic Law. It is worth mentioning in this context that there are several fundamental human rights that are not protected by the Basic Law: Human Dignity and Freedom, which is the basic constitutional arrangement meant to provide protection of human rights in Israel, such as the right to equality, the right to demonstrate and the right to freedom of religion.[2] (3) The passing of an override clause that will make it possible to reapprove a law annulled by the Supreme Court because it violates human rights and is therefore not proportionate.[3] (4) Abolition of the pretext of reasonableness as a basis for invalidating administrative decisions.[4] (5) Changing the status of the legal counsels in the government ministries to positions of trust.[5] The thread that connects these changes is the transfer of decision-making authority in important matters—which affect the day-to-day lives of the country’s citizens and their rights—to the coalition majority, i.e. the government, as reflected in the slogan, “Returning governance to the public”.

Apart from these proposed laws, which focus on changing existing Basic Laws, regular laws are being approved and proposed laws are being submitted that are based on coalition agreements signed by the 37th government of Israel, and which also threaten the essence of the Israeli regime. However, and unfortunately, they are not getting the same level of attention as the other changes. What is contained in this legislation has an impact on all disadvantaged and oppressed groups, including women,[6] the LGBT community, Palestinian citizens of Israel and the Palestinian people living under occupation for over than 50 years. However, it appears that the Palestinian minority in Israel is less involved in the weekly demonstration on Saturday nights than the first two groups. Furthermore, representatives of the Arab parties in the Knesset were absent from most of the discussions in the Constitution, Law and Justice Committee, which is involved in approving the aforementioned changes. Nonetheless, it is important to mention that some Arab speakers did participate in demonstrations throughout the country and they made their voice heard in the speeches. In one unfortunate case, at a demonstration in Haifa, the Secretary of the Jewish-Arab Hadash party chose not to speak, in protest against the attempt to rewrite parts of her speech that related to, among other things, the connection between the erosion of democracy and the continuing Israeli occupation.[7]

This article focuses on the influence of some of the proposed and already approved changes on the Palestinian citizens of the State and will suggest explanations for their limited participation in the protest. First, I will present the two main fundamental principles within the coalition agreement between the Likud party on the one hand and the Religious Zionist and Otzma Yehudit parties on the other, which in my view will have the largest potential impact on the Palestinian minority in many domains. I will then present the laws that have already been passed and the proposed laws that have been tabled in the Knesset or submitted to the Constitution, Law and Justice Committee. Finally, I will address the complexity underlying the limited participation or non-participation of Palestinian citizens in what is happening.

The fundamental principles in the coalition agreements

Religion and the state and Jewish identity

Paragraph 89 of the coalition agreement between the Likud and the Religious Zionist faction states that: “The government will work to strengthen Jewish identity by means of legislation, allocation of resources and various other actions as described in this agreement.” Although this is only a brief statement, it accurately reflects what will be happening in the near future. The strengthening of Jewish identity by means of the allocation of resources and other actions by the government will directly affect the shaping of the Israeli space. This is reflected in the spirit of Paragraph 7 of Basic Law: Israel – the National Home of the Jewish People (“The Nation-State Law”), which specifies that “The State views the development of Jewish settlement as a national value and will operate in order to encourage it and strengthen it.” Although the policy of Judaizing the Galilee and the Negev has always been the policy that determines the character of the Israeli space, it will now appear within binding legislation that will enjoy immunity from judicial review, even if it becomes clear that it leads to discrimination against the Palestinian citizens of Israel. The arrangement is meant to be implemented as part of the decision to establish new Jewish settlements, the marketing of land to those who serve in the military and to reserve soldiers, the provision of various benefits to individuals serving in the security forces, the expansion of the powers of the acceptance committees in community settlements, etc.[8] Moreover, the coalition agreements include an explicit commitment to cancel long-term obligations by the previous government that were part of the “Economic Program to Reduce Gaps in Arab Society by 2026” (Government Decision 550 on October 24, 2021). This will adversely affect Arab municipalities, which are already located at the bottom of the Central Bureau of Statistics’ socioeconomic ranking.

The aforementioned also affects the formulation of policy for the allocation of the education budget to the strengthening of Jewish identity,[9] which includes the provision of benefits for demobilized soldiers (including higher education) and increased scholarships for students and those who complete National Service. Further excess budgeting for the Jewish population will widen the already large gaps between the budgeting of Arab educational institutions and that of Jewish ones. Another related issue that appears in the coalition agreements and which will affect the minority rights of Palestinians relates to the amendment of the Law Prohibiting Discrimination in Goods, Services and Entry into Places of Entertainment and Public Places, 5760 – 2000. Among other things, the amendment will make it possible to refuse to provide service “based on religious beliefs (mainly Jewish).”[10] Hence, it will also be possible to refuse to provide Palestinian citizens with housing in a Jewish settlement based on protecting the religious beliefs of the settlement’s residents. I would mention that according to that same law, it is currently not permitted to discriminate against an individual on the basis of religion or nationality. Essentially, the proposed amendment will change the current legal situation and will in practice allow exclusion on the basis of religious beliefs, which in Israel align with national identity.

Basic Law: Immigration

Another important fundamental principle that is likely to have an impact on Arab minority rights is paragraph 93 of the coalition agreement with the Religious Zionist faction. It states that “The government will formulate a national and Zionist immigration policy and will work to legislate a basic law for immigration.” Essentially, this paragraph anchors the temporary directive in the Citizenship Law that prohibits family unification between Palestinian citizens of Israel and residents of East Jerusalem on the one hand and their spouses from countries defined as “enemy states”, i.e. the West Bank and Gaza, on the other hand, as a constitutional directive. The Supreme Court has already ruled that the current arrangement violates the right to equality and the right to dignity, even though it is proportionate since it is temporary.[11] The suggested “upgrade” of the directive to a constitutional arrangement combined with the expected changes to restrict judicial review means that this arrangement will not be subject to judicial review.

Laws that have been approved and proposed laws that have been tabled in the Knesset

The law to deprive Arab terrorists of citizenship or residency

Less than two months after the establishment of the government, a law was approved with 94 votes that authorizes the Minister of the Interior to rescind the citizenship or the residency of anyone who fulfils the following three criteria: (1) he was convicted of a terrorist act; (2) he was sentenced to prison; and (3) he or someone on his behalf received compensation from the Palestinian Authority for the act.[12] The third condition of the law differentiates between Jewish perpetrators and Arab perpetrators. Not only does the law directly contradict the international law that prohibits depriving an individual of his legal status, it is also discriminatory and racist and is aimed exclusively at Palestinian citizens and residents. Alongside the efforts to have this law passed, the coalition is already preparing a legislation for collective punishment and the rescinding of citizenship and exile for convicted family members who hold Israeli (“blue”) identity cards.[13]

A proposed Basic Law: the Knesset (amendment - expanding the pretexts for preventing participation in elections)

Currently, paragraph 7a of the Basic Law: the Knesset lists three main pretexts for disqualifying a party from the Knesset elections. The first is if the list or one of its candidates is opposed to Israel being a “Jewish and democratic” state. The second is if the list or the candidate supports the armed struggle of enemy states or a terrorist organization against the State of Israel (the “support of terror” pretext). The third is if the list or the candidate incites others to racism.

In January 2023, Member of Knesset Ofir Katz of the Likud tabled a proposed law that expands the pretexts for disqualifying candidates or lists from participating in Knesset elections. The proposed pretexts include: an expanded support of terror pretext, according to which “support for terror” will also apply to a one-time expression of sympathy or support for an armed struggle against Israel; the disqualification of a party even if it joined another list in order to run for the Knesset; and the cancellation of the Supreme Court’s power to confirm or reject a disqualification decision. Furthermore, the proposal states that the status of the court will allow it to only hear appeals of those decisions. Since the Arab lists and candidates have their qualification questioned routinely based on one of the first two already existing pretexts,[14] it is reasonable to assume that this extension will primarily affect Arab candidates and Arab parties.[15]

Policing

One of the most important issues affecting the Palestinian minority is policing, which appears in the coalition agreement with the Otzma Yehudit party in the section, “Zionism, national security and development of the Negev and Galilee”. This section seeks to provide extended powers to the Minister of National Security and makes police policy subject to the (political and not necessarily professional) agenda that the minister wishes to promote. The agreement includes a commitment to set up a designated unit in the General Security Service that will operate among Palestinian citizens and the separation of the Border Guard from the police, which will then report to the Minister of National Security – all this in the spirit of crushing so-called “nationalist crime”.

The Palestinian population in Israel has for many years suffered from a policy of over-policing.[16] The creation of another unit and the expansion of the minister’s unique policing powers (when he himself has a criminal conviction for interfering with a policeman’s fulfillment of his duty and membership in a terrorist organization), which will promote a racist agenda, will only increase the phenomenon of over-policing and infringement of the Palestinian minority's rights.

Why has there been only a moderate Arab response to the changes?

Before I address this question, three observations should be made as a basis for understanding the complexity of the Palestinian minority’s reality as citizens of the State and their stand on the current legal changes.

First, similar to other communities within Israeli society, it is impossible to relate to the Palestinian minority as a monolith community. It is composed of a variety of groups with different positions on many issues, including the issue of regime change and its impact on the Palestinian minority. Second, the Palestinian minority in Israel is an integral part of the Palestinian people, part of which is under occupation and another part of which is in the diaspora. All of them share a history that unites them as a people. They experienced the Nakba; some of them became refugees while others lost their property; and some lost their loved ones. The repeated cycle of escalation in the occupied territories makes it difficult to formulate a stable plan of joint action within Palestinian society and in certain cases as part of a Jewish-Arab coalition. It is worth mentioning at this point that it is beyond the scope of this essay to expand on the multiple adverse effects of the coalition agreements and the fundamental principles of the 37th government on the Palestinian population, which has been under prolonged occupation for more than five decades. This will further entrench the occupation and will lead to annexation of the occupied territories, in violation of international law, as well as causing further harm to the essence of Israeli democracy.

Third, the Palestinian citizens of the State suffer from discrimination, marginalization and racism in many domains. This underlies the understanding that Israel is an ethnocentric democratic regime that is exclusive to its Jewish citizens and in which Palestinian citizens are already treated as second-class citizens. To this should be added the “Nation-State Law” of 2018, which provided a constitutional anchor for Jewish supremacy and the (mistaken) idea that this space belongs exclusively to the Jewish people. Moreover, the political representatives of the Arab population suffer from prolonged delegitimization of their participation as citizens in the legislature. They are excluded from critical decision-making processes and in certain cases from decisions concerning issues that directly affect the future of the Arab community.[17]

With respect to the opening question of this section, I believe that it is possible to distinguish between two camps (which are further divided into sub-camps) with respect to the issue of regime change, which is currently on the Knesset’s agenda. One camp is aware of the changes and seeks to cope with the future judicial reality based on the understanding that even if the Palestinian minority is currently in a bad situation, things could get worse. Some of those in this camp are working to make a contribution—albeit a small one—to the awareness of these changes within Arab society by means of the various Arab media. Others are giving speeches and making their voices heard among the Jewish public, with the goal of motivating it as well as changing the judicial situation with regard to the Arab minority – and there are even those who are involved in both efforts. This camp also includes the welcome protests by women’s coalitions, in which Palestinian women feel confident enough to express a position shared with their Jewish compatriots and to protest together with them. In contrast, the second camp is not involved in what is happening and does not want to be—not based on indifference, but rather surrender, pain, a deep feeling of frustration and distrust of the State’s institutions and on the understanding that the situation could not be any worse.

It should be added that apart from the main demonstration in Tel Aviv, most of the demonstrations take place in Jewish cities that surround the Arab ones and neither the time nor the location of the demonstration is publicized among the Arab public. It may even be the case that they find it difficult to physically get to the demonstrations. More importantly, the demonstrations do not include anything that is shared by both populations, since they occur in a clearly Jewish space, in which the Arab minority feel like outsiders rather than being in a place where they can express a position or protest, particularly in view of the (massive) Israeli flags and the singing of Hatikvah, which creates a very Jewish-Zionist atmosphere. Another point that has an impact on the participation of Palestinian citizens is the issue of over-policing which they suffer from, particularly at demonstrations which often end in the killing of demonstrators (such as the Land Day events in 1976 and the events in October 2000). Therefore, it can be assumed that they are deterred from participating in demonstrations that are not connected to what they view as burning issues that affect their daily lives.

The reality in Israel is highly complex. Explaining or characterizing the behavior of the Arab minority is no less so. In my view, participation in the demonstrations is only one of many ways of protesting and non-participation in the demonstration is not necessarily evidence of a lack of interest in what is going on or indifference. Rather, it is the result of the complexity of the day-to-day reality of Arab citizens, as described above.

In conclusion, the State of Israel is at a critical crossroads that will shape its image in coming decades. It must deal with complicated issues including: the internal conflicts resulting from the tension between religion and state; its attitude towards the Palestinian minority living within it; and its continued status as an occupier that is violating human rights every single day. This crossroads can serve as an opportunity to stop, to reconsider the situation and to map out a new way into the future, one that involves real partnership that can carry out the needed changes in the Israeli regime, one that is more democratic, not tainted by occupation, and provides the anchor for human rights.

Dr. Manal Totry Jubran is a senior lecturer in the Faculty of Law at Bar-Ilan University, researcher in the fields of justice and society, legal geography, multiculturalism and minority rights, administrative justice and constitutional justice. She has been awarded grants and prizes for her research work. Her articles have been published in both international and Israeli journals and her research has been presented at conferences in Israel and abroad. She is a member of the Israeli Law Professors’ Forum for Democracy.

*The opinions expressed in MDC publications are the authors’ alone.