Click to increase image sizeClick to decrease image size Notes 1. Several points need to be stressed with respect to these grave incidents, known as the ‘October events’. First, the Arab-Palestinian violence within Israel was limited to stone-throwing (in rare instances firebombs were also thrown). Second, to the discredit of some demonstrators, policemen were not the only target of their violence; occasionally stone-throwing was also directed at Jewish civilians, and in one incident a Jewish civilian was in fact killed. Third, in some cases, particularly in mixed cities, civil violence was perpetrated in the opposite direction, with Jewish demonstrators attacking Arabs and Arab property. Fourth, and most important, these violent events produced a deep distrust between the two communities within Israel. Israeli Palestinians, for their part, experienced a confluence of external repression (of their brethren in the occupied territories) and internal repression. The Jewish majority's experience, however, mirrored that of Israeli Palestinians: They were assaulted both externally (in the territories) and internally. Most of these points are lucidly set out in the report of the official Commission of Inquiry into the October 2000 events (The Or Commission Report, 2003) available [Hebrew] at: http://elyon1.court.gov.il/heb/veadot/or/inside_index.htm. 2. Another, fourth, role of the Supreme Court will not be dealt with here. It concerns the distinction between the performance of the court in a given context and its impact in that context. Addressing the latter would involve examination of what might be termed ‘peripheral radiation’—the influence of the court upon the Arab minority emanating from the significance of general norms that the court defines in contexts other than the minority. This is too wide a question for the present analysis to accommodate. Suffice to say that due to the generic nature of legal norms, it is difficult to design or apply them in a selective fashion. Thus, the norms that were crystallized in cases involving individuals (or groups) versus the state in matters of religion and state, or political, economic, factional or gender-linked strife within the majority community, often have almost inevitable ramifications for individuals outside this community—i.e., Arab citizens. For a discussion of the court's impact via ‘peripheral radiation’, see Ilan Saban, ‘The Impact of the Supreme Court on the Status of the Arabs in Israel’, Mishpat uMimshal, Vol. 3 (1996), p. 541–569 (in Hebrew), especially pp. 551, 557–566. Only in one instance in the present article will I refer to the indirect impact of the court—its contribution to the ascendance of a civil society within the minority. Otherwise I will deal only with the court's performance. 3. The modern origin of the term ‘margin of appreciation’ is probably the jurisprudence of the European Court of Human Rights. The deference it implies varies according to the relevant institution function and status. So, for example, the Israeli Supreme Court has marked the parliament, the Knesset, in its legislative function, for special deference. 4. See C.A. 6821/93, Mizrachi Bank v. Migdal Co-operative Village, 49(4) P.D. 221. 5. Article 8 of Basic Law: Human Dignity and Liberty. A similar provision appears in Article 4 of Basic Law: Freedom of Occupation. 6. For an updated discussion see for example see Yoav Dotan and Menachem Hofnung, ‘Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements’, Law and Policy, Vol. 23, No. 1 (2001), pp. 1–27. 7. Some familiar analogies would seem to validate the Jewish majority fear of this ‘loaded triangle’-type situation. See, for example, the 1960s–70s violence between the Greek majority and Turkish minority in Cyprus that corresponded with the tension between Greece and Turkey; or the Albanian minorities in the Balkans and the Kosovo and Macedonia clashes of recent years. In many of these instances the problems arise from a situation of a ‘double minority’: the instability is engendered by some ‘manic-depressive’ factor in the make-up of each side, as they feel at the same time a minority and majority. The minority, by definition is such in its own state of citizenship, but the majority is often a minority on the regional level and feels besieged. 8. Chief Justice Agranat, E.A. 1/65 Yardor v. Chairman of the Central Elections Committee, P.D. 19(3) 367, p. 385; David Kretzmer, The Legal Status of the Arabs in Israel, Boulder, CO, 1990, pp. 22–31. 9. Gershon Shafir and Yoav Peled, Being Israeli: The Dynamics of Multiple Citizenship, Cambridge, 2002, pp. 276–277; Gad Barzilai, Communities and Law: Politics and Cultures of Legal Identities, Ann Arbor, MI, 2003, pp. 235–239, 243–245. 10. Compared to the long and arduous path to constitutional amendment in the US. Think for example of the poor chances of altering the Supreme Court decisions on abortions, freedom of expression, etc. So, in parenthesis I will comment on the problem of importing into the Israeli discourse the American constitutional debate around Judicial Review as if the two constitutional regimes are identical in this respect. 11. H.C. 840/97 Sbeit v. Government of Israel, P.D. 57(4) 803. 12. H.C. 840/97 Sbeit v. Government of Israel, pp. 814–815. 13. The distinct recent example, however, regards the occupied territories and not Israel proper—the case of the Fence/Wall. See the almost simultaneous opinions of the supreme judicial bodies of the international community and of Israel—the Israeli Supreme Court decision: H.C. 2056/04, Village Council Beit Sureik v. Government of Israel, P.D. 58(5) 807; and the International Court of Justice advisory opinion of 9 July 2004, www.icj-cij.org/docket/index.php?p1 = 3&p2 = 4&k = 5a&case = 131&code = mwp&p3 = 4. One can assume that the rather mild official reactions in Israel to the Supreme Court decision to order substantial relocation of the fence should be attributed to the pending and much harsher opinion of the ICJ. 14. Election Appeal 11280/02 Central Elections Committee for the 16th Knesset v. MK Tibi and MK Bishara, P.D. 57(4) 1 (hereafter, ‘Tibi’). 15. H.C. 651/03 Association for Civil Rights v. Chairman of the Central Elections Committee, P.D. 57(2) 62. 16. H.C. 316/03 Bakri v. Israeli Censorship Board, P.D. 58(1) 249; F.H. 10480/03 Bosidon v. Bakri, P.D. 59(1) 625. 17. H.C. 6698/95 Kaadan v. Israel Lands Administration and Katzir, 54(1) P.D. 258, 276. 18. See for example C.A.4531/91 Nasser v. Associations Registrar, P.D. 48(3) 294, see too the rulings that shielded the Arab parties, inter alia—E.A. 2/84 Naiman v. Chairman of the Central Elections Committee for the 11th Knesset, P.D. 39(2) 225; E.A. 2/88 Ben Shalom v. Chairman of the Central Elections Committee for the 12th Knesset, P.D. 43(4) 221, 250; L.C.A. 2316/96 Isaacson v. Parties Registrar, P.D. 50(2) 529; and the Tibi ruling. 19. See mainly As'ad Ghanem, The Palestinian-Arab Minority in Israel, 1948–2000, Albany, NY, 2001, esp. pp. 170–174; Shafir and Peled, Being Israeli, especially chapters 4 and 10; Shany Payes, ‘Palestinian NGOs in Israel: A Campaign for Civic Equality in a Non-Civic State’, Israel Studies, Vol. 8 (2003), p. 60–90; Barzilai, Communities and Law, especially chapter 3. 20. I find here an interesting case of reciprocal empowerment: the court blazes a trail for the empowerment of organizations and they, in their turn, by bringing before it issues of great moment that had not come its way before, endow the court with greater socio-political significance. 21. For a seminal elaboration of the issue of minority rights (and the distinction between them and equal citizenship rights), see Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford, 1995, esp. chapters 2 and 3. 22. Tibi ruling, p. 22. 23. This point was highlighted in the concluding paragraphs of the Or Commission Report: part 6, sections 40–43 and see a wider discussion of this point also in Ilan Saban, ‘Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel’, New York University Journal of International Law and Politics, Vol. 36 (2004), pp. 885–1003. 24. Kaadan. 25. H.C. 4112/99 Adalah et al. v. Municipality of Tel-Aviv-Jaffa et al. 56(5) P.D. 393. 26. H.C. 4112/99 Adalah et al. v. Municipality of Tel-Aviv-Jaffa et al., p. 418 (emphasis added). 27. For a further discussion of the status of Arabic in Israel, see inter alia, Ilan Saban and Muhammad Amara, ‘The Status of Arabic in Israel: Reflections on the Power of Law to Produce Social Change’, Israel Law Review, Vol. 36, No. 2 (2002), p. 5–39. 28. H.C. 6924/98 Association for Civil Rights in Israel v. Government of Israel, P.D. 55(5), 15. 29. H.C. 6924/98 Association for Civil Rights in Israel v. Government of Israel,, para. 31 of the ruling. 30. See the court's comment in Kaadan case. 31. See the Or Commission Report, part 1, chapter A, section 19 and part 6 section 12. 32. Compare with petition claiming gender discrimination: H.C. 4541/94 Miller v. Minister of Defence, P.D. 59(4) 94; H.C. 453/94 Women's Network in Israel v. Government of Israel, P.D. 48(5) 501; H.C.5325/01 Society for the Promotion of Women's Basketball League v. Local Council of Ramat haSharon, P.D. 58(5) 79. Compare too with petitions against irregular funding of the ultra-orthodox, as in H.C. 7142/97 The Israeli Youth Movement Council v. Minister for Education, Culture and Sport, P.D. 52(3) 433. 33. H.C. 6532/94 Abu-kaf v. Minister of Agriculture, P.D. 50(4), 391. 34. H.C. 240/98 Adalah v. Ministry for Religious Affairs, P.D. 52(5) 167 but compare with H.C. 1113/99 Adalah v. Ministry for Religious Affairs, P.D. 54(2), 164. 35. H.C. 10026/01 Adalah v. Government of Israel et al., P.D. 57(3) 31. 36. H.C. 5108/04 Abu-Guda v. Minister of Education, P.D. 59(2) 241. 37. Moshe Cohen (Elia), ‘To Whom the Burden of Proof?’, Adalah Report, Vol. 1 (1999) pp. 37–39 (Hebrew); Yousef Taiseer Jabareen, ‘Constitutional Protection of Minorities in Comparative Perspective: Palestinians in Israel and African-Americans in the United States’, PhD thesis, Georgetown University, 2003; Eyal Benvenisti and Dalia Shaham, ‘Facially Neutral Discrimination and the Israeli Supreme Court’, New York University Journal of International Law and Politics, Vol. 36 (2004), pp. 677–716. 38. Compare with H.C. 1438/98 Conservative Movement v. Ministry for Religious Affairs, P.D. 53(5) 337, where the court instructed that the petitioner be recompensed for funding it had not received in the fiscal year 1997 from the budgets of 1999 and 2000. 39. H.C. 2814/97 Supreme Follow Up Committee v. Ministry of Education, Culture and Sport, P.D. 54(3) 233. 40. H.C. 11163/03 National Committee of Heads of Arab Authorities in Israel v. The Ministry of the Interior (yet to be published). 41. There is another, important and very controversial, decision of the court (reached in May 2006) that deserves a separate analysis which I will not provide here. It concerns an attack against the constitutionality of a new statue: The Citizenship and Entrance to Israel Act (Temporary Order) 2003. The Act (with only very few exceptions) prevents Palestinians from the occupied territories married to Israeli citizens (i.e. Arab citizens of Israel) from uniting to live in Israel. The official reasons for the legislation were security reasons, but demographic overtones appeared as well (the court generally did not treat them). Six of the 11 judges in the case decided that the statute was not proportional, and therefore unconstitutional. However, the sixth judge sided with the other five judges in declining to provide a remedy against the statute. Thus, by a bare majority, this extremely problematic statute remained valid. It went through slight modifications and a new petition against it is pending. For analysis of the court decision, see, inter alia, Yoav Peled, ‘Citizenship Betrayed: Israel's Emerging Immigration and Citizenship Regime’, Theo. Inq. L., Vol. 8 (2007), pp. 603–628; Daphne Barak-Erez, ‘Israel: Citizenship and Immigration Law in the Vice of Security, Nationality, and Human Rights’, Int'l J. of Constitutional. L., Vol. 6 (2008), pp. 184–192. 42. One reader of a previous draft gently questioned my criticism, since the Israeli court's approach ‘is certainly at one with the approach adopted in other jurisdictions; for instance, a time-honoured tradition in the UK is for courts to suffice themselves with declarations in difficult cases, for instance those concerning matters of resource allocation’. Let me lay out three points that ‘drove my tone’ here: First, there is a special need for the court to be the guardian of ‘discrete and insular minorities’ since these minorities ‘may be [in] a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry’ (US v. Carolene Products Co., 304 U.S. 144 (1938), n. 4). The call for an activist court is thus more persuasive in cases such as Israel, Northern Ireland, Sri Lanka, Macedonia and the like (as opposed to, say, Britain proper or Austria). Second, the argument for involving the court in budgetary considerations is less problematic when group X demands the allocation that was provided to group Y (when no substantive distinction appears), as opposed to asking the court to intervene in the standard of allocation to a social right of one kind or another. Many cases advanced by the Arab minority are of the first kind. Third, since, as explained above, ‘the final word’ is quite clearly in the hands of the Knesset (because most of the Basic Laws are not entrenched), should not the court have more of a ‘margin of appreciation’ than less? Let us compare the relative finality of the Supreme Court in Israel with say the US Supreme Court. The latter's decision is almost ‘eternal’ (unless changed by the court itself). Should we advance then the same pros and cons for judicial review in the case of the US Supreme Court as we do in the case of its Israeli counterpart? 43. See, inter alia, Aharon Barak, Judge in a Democratic Society, Haifa, 2004, especially pp. 157–161.