Since the protests erupted, opponents of judicial reform have warned of its consequences. The jurists emphasize that the main victims will be minorities in general and Arab society in particular. For minorities, they often explain, the High Court of Justice is the last bastion of defense that reform seeks to undermine. Shikma Bressler, one of the protest leaders, put this equation on Twitter: "There is no symmetry between those who want to protect minorities and those who want to abandon them, between those who oppose the regime and its supporters." However, from the beginning of the demonstrations until today, those who hardly participate in the protests are the Arabs themselves. What's behind this lack of involvement?
One answer concerns the national nature of the protest. The demonstrations are flanked with Israeli flags and are often accompanied by speeches by former chiefs of staff and generals. Some of the Arabs who still showed interest in it encountered violence by some of the demonstrators when they forcibly removed the PLO flags they were waving, and its harshest sanction was the cessation of volunteering for reserve duty.
Prof. Amal Jamal of Tel Aviv University explains that "the protest from the outset marked the limits of participation under the Israeli flag and demanded the preservation of democracy as if it belonged to them, the preservation of existing democracy as if it were a real democracy. Preserving the status quo is not something that Arab society can live by; it is not enough. Arab society expects much more from the protests. It cannot participate under the Israeli flag, which symbolizes democracy that discriminates against it.
"The Jews did not want Arab participation with the Palestinian flag, so that the Israeli right would not delegitimize the protest. Arab society understood this very well. It is in favor of the struggle and wants to expand its discourse, but with passive participation and with the understanding that emphasizing the Palestinian flag and language may lead to friction within the protest and split it, because there will be those who will not be able to tolerate it and therefore it will weaken it and allow the right to delegitimize it. Absenteeism strengthens the protest, but there is an expectation that the discourse of the protest will expand, that it will not be possible to separate the struggle for democracy from the occupation, and so on."
Another explanation seems to lie in the reluctance of the organizers and center-left parties to cooperate. Unlike jurists, protest leaders rarely mention in their messages the implications of the reform on the rights of minorities and Arabs. The week Justice Minister Yariv Levin announced the reform, two separate demonstrations were held in Tel Aviv. One by the organization "Standing Together," which focused the protest on issues of discrimination against minorities, and the other by organizations that protested the legal reform and marched with torches. When an attempt was made to hold a joint protest on Saturday night, the media reported that the Yesh Atid party opposed the demonstration.
Demonstration against the reform, Tel Aviv. "To preserve the Zionist state", photo: Coco
MK Aida Touma-Suleiman protested: "When Yesh Atid gives an order not to come to a demonstration against the rise of fascism because of the participation of Arabs and left-wing organizations, apparently the hatred for these is greater than the hatred for fascism itself." In February, Lapid, Gantz, Lieberman and Michaeli held a press conference against the reform, but the Arab MKs were not invited. MK Ayman Odeh attacked them, claiming that "the center-left is so afraid of being called 'leftists' that they behave completely right-wing. They will continue to rant and exclude Arabs, we will be outside with the demonstrators." Earlier, Bressler had spoken out against the Hadash chairman: "Ayman Odeh voted to dissolve the Knesset because of narrow political considerations, he has direct responsibility for what is happening here."
In another case, protest organizers in Haifa canceled a speech by Hadash secretary general in the city of Rim Khazan at the last minute. This was after she was asked to correct her speech, which criticized the occupation and discrimination against Arabs. She refused.
A similar thing happened to jurist Dr. Rawia Abu Rabia. "The organizers of the Kaplan protest approached me to talk about violence in Arab society, but they set me a condition that I not talk about the occupation. "If this is what freedom of expression looks like in protest of democracy for Jews only, then in my life I don't know what to say anymore."
"Hate in the eyes"
At the beginning of the month, that tension exploded. Just recently, on 1 July, members of the protest organization Brothers in Arms attacked protesters from the Bloc Against the Occupation. Alon Green of the Bloc wrote that "brothers in arms attacked the 'Bloc Against the Occupation' in Kaplan and prevented us, activists from the bloc, the Standing Together movement, Breaking the Silence and other organizations, from holding up a sign against settler terrorism and pogroms. If that's what their democracy looks like, they'd better lose. We are fighting for democracy and equality for everyone and everyone." Alon Brown-Rotman said: "Brothers in Arms thugs started beating up the participants in the anti-occupation march. I breathed in some pepper spray that someone sprayed, and another thug scratched my neck enough to bleed a little. Lousy fascists. They shouted 'straightening the line' and entered us like a column of Special Patrol Units, pushing and hitting. Tear up signs and flags. Hatred in the eyes. They decided they didn't want us to be there, quickly organized and started beating up to make it clear that we should run away."
When the sister of Iyad al-Halak, who was killed by a policeman, took to the protest stage in Jerusalem in June and read Surah al-Fateh from the Quran, jurist Prof. Eyal Gross wrote sarcastically: "Things that won't happen on the main stage of the protest in Tel Aviv – luckily there is no censorship in Jerusalem." Following the exclusion of the Arabs, Jordanian-Palestinian writer and journalist Mahmoud al-Rimwai published an article in which he claimed that "democracy in the eyes of the protesters is for Jews only."
Haaretz journalist Dia Haj Yehya posted a picture on Twitter of a demonstrator wearing a hijab and carrying a sign saying "Iran is another moment here." Hajj Yehya wrote: "It's a hijab, it's worn here too, in Taibeh, in Nazareth, in Kafr Qasim, and in Iran. It is outrageous to turn it into an extreme symbol." If it wasn't clear enough how the great democrats treat Muslims, then an article by B. Michael in the same newspaper made it clear: "Religious parties should have been outlawed long ago. They do not accept the burden of the foundations of democracy."
The tension and differences in views between the center-left and Arab society are compounded by criticism in Arab society of the High Court decisions. In February 2023, a gathering was held in Nazareth at the initiative of the Israel Democracy Institute and the Boqra news website. In a discussion with opinion leaders and jurists in the Arab public on the question of the lack of Arab participation in the protest, many of them criticized not only the leaders of the protest, but also the lack of protection that the Supreme Court provides them in a number of cases.
Attorney Muhammad Naamaneh, until recently a representative of the Israeli Bar Association on the Judicial Selection Committee, emphasized that many hold the position that "we should not take part in a place where they don't want us." Attorney Muhammad Dahla noted that "the Jewish public is fighting for democracy, which from the outset was mainly democracy for Jews. The question arises whether the Jewish public holding the demonstrations will be willing to change the nature of the demonstrations in order to allow Arab participation." Vandira Assadi explained, "The protest has no confidence among the Arab population, because we see that people who trampled on human rights are speaking in the squares in the name of human rights. We have no place in the existing protest."
Nevertheless, almost all the participants argued that Arab society should hold its own separate protest. Prof. Muhammad Wated, Dean of the School of Law at Safed Academic College, added: "This is not the time to settle accounts with the Supreme Court, nor is it the way to settle accounts with it. We should all be worried today. We don't have the luxury as citizens, and as Arab citizens in particular, to sit on the fence and not lift a finger."
Reality proves that Prof. Wated's call has not been adopted in Arab society. Here's an example. The chairman of the Israeli Bar Association, Amit Bahar, uses the chamber to oppose the reform legislation, similar to his predecessor Avi Himi. The Chamber employs many Arab lawyers, led by Attorney Wael Halaila, chairman of the United Arab Faction. "We have a position on all public issues, and we aspire to promote Arab lawyers to judicial positions and positions in the public service," he told Israel Hayom, but to what extent does the reform set the agenda of the Arab list? Well, "It's really not on our agenda. We don't come from this place like the right-wing list. In Jewish society there is agitation and more interest in light of the issues before the entire public, regarding the revolution or legal reform. In Arab society, it's true that this matter is important to us, but that's not the main thing."
Losers less
The Israel Democracy Institute has begun examining the attitudes of the public, including the Arab population, regarding the reform. If it was assumed that the vast majority opposed, the survey revealed a different situation. In January, 41% of Arabs responded "I don't know" to a question about the reform, 40% said they opposed, and 18% said they supported it. According to this survey, 93% of Arab respondents did not participate in any protest against the reform, and only 6% participated. In the next survey, in February, the Institute stopped examining the rate of support for the reform, but continued to examine the participation rate. 85% of the Arabs responded that they did not participate in the protest. In a March survey, 89% of Arabs responded that they had not participated in protests. In the months that followed, the institute conducted three more surveys, but stopped asking about the participation rate in the protests.
"The Arab group has already lost 'a lot' and has only 'little' left to lose by what is proposed in the so-called legal reform, in contrast to the camp that opposes the government's initiative, which actually feels that it is going to lose as the Arabs have lost so far. Given the privileges that this camp has enjoyed over the years, it indeed has a lot to lose," Prof. Michael Kraini, former dean of the Hebrew University's Faculty of Law, told Israel Hayom.
Prof. Kraney recently published a detailed article in Tel Aviv University's journal "Legal Studies" titled "The Third Camp in the Arena of the Struggle for Legal Reform:
The Arab-Palestinians," in which he explained the Arabs' abstinence from the protests. Like Prof. Jamal, Prof. Kraney believes that the protest seeks to preserve the existing democratic situation, which they consider intolerable. In this context, he harshly criticizes it: "Where would these opponents be when democracy in Israel has repeatedly failed to protect the rights of Palestinian Arabs, whether inside Israel or within the occupied territories – a failure to which the Supreme Court has sometimes also participated? In the imaginary scenario in which opponents of the reform resent the third camp and ask it, 'Where are you?' this camp replies with great restraint, 'Where have you been?'"
Kraney writes that Arab society agrees with conservative jurists about the democratic deficit created by the High Court of Justice in Israel, "but unlike this camp, the third camp thinks that the democratic deficit existed before judicial activism was formed, and that it is inherent in the very definition of the State of Israel as a Jewish nation-state. The deficit was also inherent in the legal practice that has developed vis-à-vis Palestinian Arabs since the establishment of the state until today." In addition, it reviews the harm caused by the High Court of Justice to the Arab minority in Israel, with the court sometimes even preempting the legislature's harm. Thus, for example, he mentions several rulings that made it difficult for Arab families on both sides of the Green Line to unite, even before the famous law was passed.
In a conversation with Israel Hayom, he hints at why the Arabs are not moved by the narrowing of the grounds of reasonableness: "Military rule was not ruled out as unreasonable, the occupation regime and control of another people were not ruled out as unreasonable, the expropriation of Arab lands for the establishment of Jewish settlements was not ruled out as unreasonable." However, according to the Arab camp, the reform will not reduce the deficit but widen it. "Through the legal process, it was at least possible to shout, to flood and sometimes to influence, even if not fully," Craney says. According to him, even the little that exists today will be taken.
On Sunday this week, the Arab sector held a demonstration at Fordyce Junction in the north. The protest was not against the reform, but against the rising crime in the Arab sector. In contrast to the relatively soft hand used by the enforcement system on the protest demonstrators, in front of the Arab demonstrators a line of policemen stood up with guns drawn and tear gas canisters. "I think that there is another dimension that should be taken into account," notes Craney, "the rampant crime in Arab society – it certainly delegates what this minority prioritizes in terms of its priorities. Again, given the small marginal loss expected if the reform is advanced, the loss of human life seems more important."
Before the cause of reasonableness
Dr. Hassan Jabarin, chairman and founder of Adalah, also believes that the agenda of the Arab population is different from that of the Jewish population. "Between the protest and the government, it is clear that Arab citizens are protesting against the government, but what has preoccupied them mainly in recent years is the war on crime in Arab society, which concerns the personal security of every home in our society. There is hardly a family that has not been affected, near or far, by this state of crime. This is more important than any discussion of the grounds for reasonableness when there is danger to life itself – certainly when the person responsible for the security of Arab society is the public security minister who acts against the Arabs."
But like Jamal and Craney, Jabarin raises a deeper reason for the Arabs' absence from the protests. "The protest movement insists on emphasizing the identity of the state as Jewish and democratic, that is, an Israeli-Zionist state. While the motive that brought the masses to the streets was reform, the struggle within Israeli Jewish society is over the identity of the state. The protest camp wants an Israeli-Zionist state, while the other side wants a religious, settler Jewish state. This is the real struggle. In the midst of this struggle, the Arabs have no place. They are neither for this nor for it. They are in favor of an egalitarian civil state without ethnic supremacy. Therefore, the essence of the protest clashes with the political perceptions of Arab citizens."
In other words, the protest calls for a lacking democracy.
"True, and Arab citizens cannot be an integral part of this protest. There were attempts at first, but conflicts arose within the protest over its messages, and more. The main messages of the Arabs are: As long as there is occupation there is no democracy, as long as there is no equality there is no democracy. But the emphases of the protest are different. My criticism of the protest is that it focuses mainly on integrity and does not focus on human rights."
In addition, Jabarin believes that the royal clothes worn by the High Court of Justice as a protector of minorities are based on erroneous Jewish discourse, and that in practice the king is naked. "We brought petitions before the High Court of Justice against racist and discriminatory laws, and the High Court allowed them all," he says, listing "twice the Family Unification Law, the Admissions Committees Law, the Nakba Law, the Boycott Law, the Impeachment Law, the Law to Increase the Electoral Threshold, all the Jewish High Court justices approved the Nation-State Law. Can we say that the High Court of Justice is the protector of the minority? After all, he failed at just that. You also don't hear the right wing attacking the High Court of Justice for defending the Arab minority – because it doesn't. So why should the Arabs flock to Kaplan to defend the status of the High Court?"
Regarding the grounds of reasonableness, Jabarin explains that "this was supposed to be the main ground protecting the rights of Arab citizens. When we petitioned and argued that not providing school transportation to children in the unrecognized villages in the Negev, who walk a long distance, is extremely unreasonable, the High Court rejected the petition. There is much talk about the High Court decision that required the government to protect schools near the Gaza Strip, and that the government's decision not to do so is unreasonable, and here the High Court protected the lives of Jewish citizens.
"At the same time, however, a petition was filed with the High Court of Justice to provide protection to the unrecognized villages, after a man had already been killed there by rockets during Operation Protective Edge. The lack of Iron Dome protection led to death. This time, the High Court ruled that it does not interfere in operational decisions of the military. When the danger to life is to Jewish children it is unreasonable, when the danger to life is to Arab children it is reasonable. Apparently, according to the High Court of Justice, what is reasonable in matters concerning Arab citizens is what is perceived as reasonable by the Jewish-Zionist consensus in Israel."
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