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