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High Court rejects NGOs' petition against Nakba law

By Noa Yachot and Roi Maor

The High Court of Justice dismissed on Thursday a petition contesting the so-called “Nakba Law,” which enables the state to reduce public funding for institutions that commemorate the Palestinian catastrophe of 1948. Read the ruling here (in Hebrew only).

The law, passed in March of last year, originally sought to criminalize the commemoration of the Nakba Law. Its latest version, called Amendment 39 to the Budget Foundations Law, threatens to withdraw public funds from bodies considered to have acted to associate feelings of mourning with the establishment of Israel’s independence. From the petition to the Supreme Court:

If the Minister of Finance sees that an entity has made an expenditure that, in essence,
constitutes one of those specified below (in this section – an unsupported expenditure), he
is entitled, with the authorization of the minister responsible for the budget item under
which this entity is budgeted or supported, after hearing the entity, to reduce the sums
earmarked to be transferred from the state budget to this entity under any law:
1. Rejecting the existence of the State of Israel as a Jewish and democratic state;
2. Incitement to racism, violence or terrorism;
3. Support for an armed struggle or act of terror by an enemy state or a terrorist
organization against the State of Israel;
4. Commemorating Independence Day or the day of the establishment of the state as
a day of mourning;
5. An act of vandalism or physical desecration that dishonors the state’s flag or

A three-justice panel rejected the petition submitted by the Association for Civil Rights in Israel and Adalah – the Legal Center for Arab Minority Rights, who argued that the law constitutes a dangerous violation of free speech. The three sitting justices refused to rule on the merits of the law’s constitutionality. Instead, they argued that the legal question is not yet “ripe” for a decision, because no institutions have yet suffered the law’s effects.

In joining the decision of Justice Miriam Naor, outgoing Supreme Court President Dorit Beinisch wrote:

On a declarative level, the law does indeed raise difficult and complex questions, but the law’s constitutionality is dependent from the outset on the interpretation of its provisions, and that will be made clear only at the stage of its implementation.

The petitioners claim that the mere fact of the law constitutes a violation of free speech, a chilling effect on public discourse and a blow to the right of Palestinian citizens of the state to express their identity and historical narrative.

In response to the decision, ACRI said:

The court, in its decision, ignores the fact that the blow both to free speech and to the rights of Arab citizens is already taking place in practice, before the implementation of the law. Because the law’s wording is broad and vague, many bodies are likely to censor themselves so as not to place themselves at risk. The High Court missed an opportunity today to make it clear to the legislators that there’s a limit to the assault on human rights in general and on the Arab population in particular. We will continue to monitor cases of concrete harm and will consider another appeal to the legal system.

This is a classic move for Israel’s High Court. The justices are famously reluctant to rule on highly contested, politically charged questions, and will always prefer to delay and avoid decision on such matters. In this case, they are clearly hoping that the elaborate mechanisms mandated by the law before funding can be reduced, as well as some discretion by the executive authority, will mean that the more controversial provisions of the law are never implemented. If they are wrong, and a future case, contesting a specific funding decision, does reach their desk, they will be faced with a highly problematic choice: either rule it unconstitutional and face the wrath of those who already believe the court is post-Zionist and leans to the left (and are acting to undermine its authority at every turn), or uphold it, thereby exposing how shaky Israel’s commitment to free speech has truly become.

For more on the Nakba Law:
The new Nakba Law: Privatizing freedom of speech
Israel’s Nakba Law: Is it time for civil disobedience?
Nakba Law: Inside Pandora’s Box
Why Jews need to talk about the Nakba

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    1. YE

      The submission of the court is clearly complete. The (in)decision reeks of fear. Justified fear perhaps, but what use is such a tamed court?

      Reply to Comment
    2. Woody

      As the occasional legal commentator here, I have to point out that the US Supreme Court would also have rejected this petition on the basis of ripeness. Sure, a court should be able rule on the “constitutionality” of laws passed by the government. In Israel, there is no constitution, so it’s a stretch to force them to review its abstract merits against the Basic Laws. Furthermore, until someone has been harmed by the law, there is no damage to assess. That is, all of the arguments about the law in court would be lacking in concrete references – how would the court balance the issues or have facts to apply to the law? It might not even set a precedent if it was decided because it can’t be compared to the situation in a future suit. I doubt the petition was filed to achieve any real gains, just to build pressure against the law, since these legal orgs already know what their arguments in court will be when someone is harmed by it.

      Reply to Comment
    3. Michael W.

      Can someone clarify this for me? If an individual or an institution decides to the commemorate the Nakba, will it be thrown in jail or fined?

      Reply to Comment
    4. Mikiesailor

      Woody: Where did you go to law school? A declaratory judgment is routinely considered by the US court system when constitutional rights are invoked. This is pure cowardice by the Israeli Supreme Court, nothing more. The ‘chilling’ efffect of such laws is evident. Why do you think the writers and commenters on this site refuse to write on boycott issues or BDS? The Israeli legal system appears to be joke beyond repair. And speaking of ‘ripeness’ or ‘standing’ is a non-starter where basic rights are involved.

      Reply to Comment
    5. directrob

      Micheal W, withdraw state funding, read the article … first quote.

      Reply to Comment
    6. Michael W.

      Considering that they haven’t burned their citizenship papers already, continue to vote in these kangaroo elections, and petition these kangaroo courts countless times, perhaps this opponent has some moral standing?

      Question, do you live in this state?

      Reply to Comment
    7. Suppose a Palestinian-Israeli NGO decides to celebrate May 15 (not Israeli independence day, Gregorian calendar) — or November 15 for that matter — as Nakba day. Does this trigger that part of the Nakba law?

      Reply to Comment
    8. Woody,
      In the past (but not now methinks), the US Supreme Court would strike down a speech law for its chilling effect alone; no actual harm need be documented. The Court refrained from extending this universal standing to any other right (I think). Now retired Chief Justice Barak employed universal standing as a core judicial principle: one could sue before the court, as these two NGO’s did, solely on the basis of harmed principle. The three panal court declining present review is not only avoiding the Nakba Law but overturning Barak’s concept of judicial review. Barak, now retired, is losing; and his view would most likely lose over a charged issue, as this one. That is, the two NGO’s have done the conservative wing of the Court a favor by bringing this petition.
      As far as I can guess, from the law’s summary above, mourning the foundation of Israel on some other day is not covered–so long as you do not destroy any symbol (burn a flag). Good thought to find a way around the law.
      The issue of patriotism underlying the Nabka Law is tense in the US as well. Flag burning is constituionally protected by a single vote (at the time). Texas had a law against it; the law was stricken by a 5-4 vote. Strangely, liberal Stevens was in the minority, while newly appointed conservative Scalia was with the majority. Stevens served in WW II and said flag burning is too painful for those who served. I suspect similar statements are made in Israel.

      Reply to Comment
    9. Woody

      @Mikie: Are you serious? A declaratory judgment on a constitutional issue? Art III Sect 2 requires “actual cases of controversy” and the Declaratory Judgment Act, limited by the Constitution, is limited to “cases of actual controversy”. Your interpretation is fantasy, though not a bad idea. I’d be interested in cites for the “routinely considered by the US court system” claim, since I suspect they’re civil cases like patent, and not Constitutional issues – you may be confused. I graduated Cornell Law – I’m admitted in NY. And Declaratory Judgment is an Equitable Relief in present practice (i.e. reaching back to the 30s). This is basic Con Law.

      @Greg: Exactly my point – SCOTUS wouldn’t strike down a speech law now or any time in the recent past for “chilling effect” absence an actual case or controversy. Yes, this could be a reason to decide a case that is ripe, but there are no facts available if this Israeli case were to (in our hypo here) come before SCOTUS. This is also a case that would most probably be about “funding” where standing, even if a harm was found, would be near impossible to establish. By all accounts, in the abstract this is not a speech case, I’m sorry. As someone who has worked at Adalah, I respect their work and look forward to a ripe case when it arises. My comments are a caution on the look-out for +972 sensationalism – which I’ve noticed in the past six months.

      As to Israeli law and Barak precedent. I think it’s possible that this petition could be a mistake, as you suggest, as it hands the conservative wing the ability to disallow universal review, without ever having to defend/debate the merits of an actual case. The lack of an independent judiciary means Barak’s tact was never permanent anyway. Not that they couldn’t win on those merits in the future, but at least then the international public would have to listen to specific offensive arguments in the opinion, instead of journalists attributing it to the court when they don’t actually have to make them because of the way the decision arose. This is my observation.

      Reply to Comment
    10. Woody

      @Mikie – as to the Israeli court system being broken beyond repair. Obviously. The problem lies in the lack of an independent judiciary. It doesn’t even matter what the court thinks when the Army can ignore it and the Ministry of Justice and threaten to take away their power. It’s not dissimilar from Pakistan’s court.

      Reply to Comment
    11. Woody

      The fact that +972 won’t mention boycott is probably because they know they’d lose the case if it came up and they would be shut down for a while in the interim. It could also have to do with the fact that it’s not populated by radicals, but career journalists or aspiring career journalists who are stuck inside of the Israeli paradigm. That fact says nothing about soundness of the recent decision, which as I pointed out, would be the same under under SCOTUS. Now if +972 wanted to risk their mission to create a case/controversy, then we’d have something to work with, but like I said, they’d probably lose and all that would result is a clearer articulation of what’s wrong with the country by the court. It’s a balancing act to operate under fascism, I just want to keep it clear that the US isn’t some haven for justice either when compared to Israel.

      Reply to Comment
    12. Woody,
      That the present USSC would not entertain a free speech case based solely on the chilling effect of a law or administrative act does not imply the principle has no value. The Plessy Court in the late 1880’s allowed obviously unequal access to services by race; it was wrong then as now. The Roberts Court is no hero of mine.
      Yes, I have heard some journalists on 972 say they are afraid of being shut down through damages. If they are shut down they can say less, and perhaps find other employment difficult with the taint of the loss. I think the USSC would not allow this law; you well know proving defemation much harder in the US than the UK; and I think Scalia would see the chilling effect on political speech of the boycott law horribly obvious. What is more, no damages have to be proved under the law; only potential, and that without an independent determination (Israel has no juries). The standards of free speech in the US are far superior to those under current Israeli law. One cannot burn an Israeli flag; one can burn an American one. Note also O’Conner’s stance on abortion, where she asserted the judiciary cannot wait for harm to be done to make a decision. Things are not as crisp as you make them; nor is the USSC in any case a model for Israel.
      Nor is it clear Israel does NOT have an independent judiciary. The Knesset usurpted soverignty at foundation; it was elected as a Constituent Assembly to write a constitution. A Consitutional Assembly cannot become a legislature. Barak’s stance during his tenure was to assert that law predated the Knesset, which implies the Knesset can be constrained by prior law. Universal standing asserted that the Knesset was embedded in the law, not the other way around. I think it a desperate notion to create an independent jurisprudence; but whether or not the judiciary is independent remains to be seen. As I have said too many times on this blog, the High Court could declare the Declaration of Independence a constitutional document and protect their independence through its defense. At the same time, the court should call–plead would be a better word–for a constitutional convention. Israel has been in a slow motion constitutional crisis for decades. I see no other solution on the horizon than the High Court taking refuge in the Declaration (which is a remarkable document); but I also think that may be some time away–unless the Knesset decides draconian control of the judiciary. Take heart (or not)! The non-fascists of the Knesset may still succeed in creating an independent judiciary.

      Reply to Comment