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The Status of Arabic in Israel: Refiections on the Power of Law to Produce Social Change

Published online by Cambridge University Press:  04 July 2014

Ilan Saban  and
Muhammad Amara
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Abstract

The status of Arabic in Israel gives rise to question. Israel is a rare case of an ethnic nation-state that grants the language of minority group with a legal status which is prima facie one of equality. Both Hebrew and Arabic are the official languages of the State of Israel. What are the reasons for this special state of affairs? The answer is threefold: historic, sociological and legal. In various ways the potential inherent in the legal status of Arabic has been depleted of content, and as a result of that, as well as other reasons, the socio-political status of Arabic closely resembles what you would expect the status of a language of a minority group in a state that identifies itself as the state of the majority group to be. This answer, however, is another source of puzzlement – how does such a dissonance between law and practice evolve, what perpetuates it for so long, is change possible, is it to be expected?

We present an analysis of the legal status of Arabic in Israel and at the same time we proceed to try and answer the questions regarding the gap between the legal and the sociopolitical status of Arabic. We reach some of our answers through a comparison with the use of law to change the status of the French language in Canada. One of these answers is that given the present constellation in Israel, the sociopolitical status of Arabic cannot meaningfully be altered by legal means.

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Articles
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Israel Law Review , Volume 36 , Issue 2 , Summer 2002 , pp. 5 - 39
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

1 We are using “binational” here as a short term for “multinational” states too. Canada is to be discussed in some detail below. For multilingualism in Switzerland, see Article 70 of the Swiss constitution. In the Belgian constitution there is no article devoted to “official languages,” but see Article 189 on the languages of the constitution. For an important discussion of the multilingual (and multinational) states, see, McRae, Kenneth D., “The Principle of Territoriality and the Principle of Personality in Multilingual States,” (1975) 4 International Journal of the Sociology of Language 5Google Scholar.

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5 The literature dealing with the legal status and socio-linguistic status of Arabic in Israel is important. However, much of the literature date before the quite important developments of the last decade, and for the most part the theoretical perspectives of most writings are somewhat different than the one adopted here. See, inter alia, Landau, Jacob M., The Arab Minority in Israel, 1967-1991: Political Aspects (Tel Aviv, Am Oved, 1993) 64–65CrossRefGoogle Scholar [Hebrew]; Rubinstein, Amnon and Medina, Barak, The Constitutional Law of the State of Israel (Tel Aviv, Schocken, 5th ed., 1996) 97–105Google Scholar [Hebrew] [hereinafter: Rubinstein and Medina]; Fisherman, Haya and Fishman, Joshua, “The Official Languages of Israel: Their Status in Law, and Police Attitudes and Knowledge Concerning Them” in Savard, Jean-Guy and Vigneault, Richard, Multilingual Political Systems, Problems and Solutions, (Quebec, International Centre for Research on Bilingualism, 1975)Google Scholar; Tabory, Mala, “Language Rights in Israel,” (1981) 11 Israel Yearbook on Human Rights, at 272–306Google Scholar [hereinafter: Tabory]; Landau, Jacob M., “Hebrew and Arabic in the State of Israel: Political Aspects of the Language Issue,” (1987) 67 International J. of Sociology of Language, at 117–133Google Scholar; Gold, David L., “A Sketch of the Linguistic Situation in Israel Today,” (1989) 18 Language and Society, at 361–388CrossRefGoogle Scholar; Kretzmer, David, The Legal Status of the Arabs in Israel (Boulder, Colorado, Westview Press, 1990) 39-40, 165–166Google Scholar [hereinafter: Kretzmer]; Spolsky, Bernard, and Cooper, Robert, The Languages of Jerusalem (Oxford, Clarendon Press, 1991)Google Scholar; Koplewitz, Immanuel, “Arabic in Israel: The Sociolinguistic Situation of Israel's Arab Minority,” (1992) 98 International Journal of the Sociology of Language, at 29–66CrossRefGoogle Scholar; Ben-Rafael, Eliezer, Language, Identity and Social Division: The Case of Israel (London, Oxford Clarendon Press Contact, 1994)Google Scholar; Spolsky, Bernard, “The Situation of Arabic in Israel” in Suleiman, Yasir, ed. Arabic Sociolinguistics: Issues and Perspectives (Richmond, Curzon Press, 1994) 227–234Google Scholar; ACRI (The Association for Civil Rights in Israel), Comments on the Combined Initial and First Periodic Report Concerning the Implementation of the International Covenant on Civil and Political Rights (ICCPR), 168; Adalah – The Legal Centre for Arab Minority Rights in Israel, Legal Violations of Arab Minority Rights in Israel (1998) 66–70Google Scholar [hereinafter: Adalah Report]; Israel (The State of Israel), Implementation of the International Covenant on Civil and Political Rights (ICCPR)- Combined Initial and First Periodic Report, (1998) 22, 329, 360–361Google Scholar; Shohamy, Elana and Donitsa-Schmidt, Smadar, Jews vs. Arabs: Language Attitudes and Stereotypes (Tel Aviv, The Tami Steinmetz Center for Peace Research, 1998)Google Scholar; Spolsky, Bernard and Shohamy, Elana, “Language in Israeli Society and Education,” (1999) 137 International Journal of the Sociology of Language, at 93–114CrossRefGoogle Scholar; Spolsky, Bernard and Shohamy, Elana, Languages of Israel: Policy, Ideology and Practice (Clevedon. Multilingual Matters. 1999)Google Scholar: Merin, Yuval, “The Case against Official Monolingualism: The Idiosyncrasies of Minority Language Rights in Israel and the United States,” (1999) 6 ILSA J. Int'l & Comp. Law, at 1Google Scholar.

6 Drayton, (1934) 3 Laws of Palestine 2569, 2588Google Scholar.

7 1 L.S.I. 7, at 9.

8 H.C. 4112/99, Adalah et al. v. The Municipality of Tel-Aviv-Jaffa et al., 56(5) P.D. 393 [hereinafter Adalah v. The Municipality of Tel Aviv-Jaffa].

9 Tabory, supra n. 5, at 274.

10 “Use of Official Languages” [1920] Official Gazette of the Government of Palestine [no. 28] 5, paras. 2–5Google Scholar. This Mandatory Order has been forgotten. The probable reasons for this unawareness are outlined elsewhere. See Saban, Ilan, “A Lone (Bilingual) Cry in the Dark?” (2003) 27 Iyunei Mishpat 109, at 137–8Google Scholar [Hebrew]. Thus, the parties to the most important petition to the High Court of Justice regarding the status of Arabic (Adalah v. The Municipality of Tel Aviv-Jaffa, supra n. 8) were unaware of its existence.

11 See esp., Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights, esp. Chs. 2&3 (New York, Oxford University Press, 1995)Google Scholar [hereinafter Kymlicka, Multicultural Citizenship]; Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, Ch.l (New York, Oxford University Press, 2001)CrossRefGoogle Scholar [hereinafter Kymlicka, Politics in the Vernacular]. See also, Saban, “Minority Rights in Israel,” supra n. 3, at 247–256; Saban, “Minority Rights: A Framework,” supra n. *.

12 Kymlicka, Multicultural Citizenship, ibid., at 26.

13 Kymlicka, ibid., at 111–2.

14 Lijphart, Arend, Democracies in Plural Societies: A Comparative Exploration (New Haven, Yale University Press, 1977) 25, 38–41Google Scholar.

15 Cf., Lijphart, ibid., at 36–38.

16 Compare, for example, what occurs in the context of the religious-secular rift among the Jewish majority community in Israel: the way in which symbols whose source is religious are adopted by the entire Jewish national community, but after being invested with non-religious, national significance. See Liebman, Charles and Don-Yehiya, Eliezer, Civil Religion in Israel: Traditional Judaism and Political Culture in the Jewish State (Berkeley, University of California Press, 1983), at 165–166, 228–229Google Scholar.

17 For the profound political and economical ramifications of Canada's movement towards bilingualism, see Magnet, Joseph E., The Official Languages of Canada, (Quebec, Editions Yvon Blais. 1995)Google Scholar [hereinafter: Magnet]; Saban, Ilan, The Legal Status of Minorities in Democratic Deeply-Divided Countries: The Arab Minority in Israel and the Francophone Minority in Canada (2000) (Ph.D. thesis, the Hebrew University, Jerusalem)Google Scholar [Hebrew] [hereinafter Saban, , The Legal Status of Minorities], esp. at 150–1Google Scholar.

18 On the difference between an “official language” on the one hand and a “recognized,” “national,” or “working” language on the other, see: McRae, supra n. 1; Magnet, The Official Languages of Canada, supra n. 17; Klein, Claude, Israel as a Nation-State and the Problem of the Arab Minority: In Search of a Status (Tel Aviv, International Center for Peace in the Middle East, 1987)Google Scholar.

19 See Adalah Report, supra n. 5, at 66–70; Barzilai, Gad, Communities and Law: Politics and Cultures of Legal Identities (Ann Arbor, University of Michigan Press, 2003) 110–14CrossRefGoogle Scholar [hereinafter: Barzilai, Communities and Law].

20 For a more extensive discussion of the language rights that are given to the French language in Canada, see, inter alia, Magnet, supra n. 17; Saban. The Legal Status of Minorities, supra n. 17, at Ch.5.

21 Cf. Barak, Aharon, Purposive Interpretation in Law (Jerusalem, Nevo, 2003) 402Google Scholar [Hebrew].

22 Canada was discussed above; for the Swiss and Belgium contexts see, supra n. 1.

23 Tabory, supra n. 5, at 284–85

24 The Law and Administration Ordinance, 1948 S.H., Article 10.

25 The Interpretation Law, 1981 S.H. 302.

26 See the following two petitions, H.C. 2203/01, DCI – Defence for Children International (Israel Section) v. National Insurance Institute of Israel (Unpublished decision) and H.C. 8875/00, Jerusalem Center for Social and Economic Rights v. National Insurance Institute of Israel (on file with authors.)

27 See Criminal Procedure Law (Consolidated Version), 1982, S.H. 1982, at 41.

28 See the claims and the submitted affidavits in Adalah's petition: H.C. 792/02, Adalah v. The Director of the Courts (on file with authors.)

29 Barzilai, Communities and Law, supra n. 19 at, 110–14.

30 H.C. 105/92 Ram Engineers v. Municipality of Nazareth Illit 47(5) P.D. 189. [hereinafter: Ram Engineers case].

31 The Knesset and Prime Minster Elections (Consolidated Version) 1969 S.H. 106.

32 The Citizenship Law, 1952, S.H. 146.

33 H.C. 527/74 Khalf v. The District Committee for Planning and Construction, Northern District 29(2) P.D. 319; Rubinstein and Medina, supra n. 5, at 102-104; Kretzmer, supran. 5, at 166.

34 The Arab-Palestinian educational institutions are denied self-government rights; denied the autonomy enjoyed, for example, by the orthodox and ultra-orthodox Jewish educational systems. Neither is the Arab-Palestinian minority granted special representation rights; the world-view and history of the minority do not feature in the general curriculum of state schools in Israel.

For discussions of Arab education in Israel, see, inter alia, Al-Haj, MajidEducation, Empowerment, and Control: The Case of the Arabs in Israel (Albany, State University of New York Press, 1995)Google Scholar; Kretzmer, supra n. 5, at 120-1, 152-4, 169-172; Khalid Abu-Asba, , The Arab Educational System in Israel: Existent Situation and Possible Structural Alternatives (Givat Haviva, The Institute for Peace Research, 1997)Google Scholar [Hebrew]; Ichilov, Orit and Mazawi, Andre Elias, “Choice in Education and its Social Significance in the Arab Community in Jaffa,” (1997) 38 Megamot 421–432Google Scholar [Hebrew]; Abu-Saad, Ismail, “The Bedouin Educational System in a Changing Social Reality” in Peled, Elad, ed. Fiftieth Year Jubilee to Israel's Education System (Jerusalem, The Ministry of Education, 1999), at 1101–1111Google Scholar [Hebrew]; Amara, Muhammad H. and Mari, Abd Al-Rahman, Issues in Language Education Policy of Arab Schools in Israel (Givat Haviva, The Institute for Peace Research, 1999)Google Scholar [Hebrew]; Jabareen, Yousef T., “Education with Identity” (1999) 1 Adalah Notebooks 26–29Google Scholar; Rabin, Yoram, The Right to Education (Jerusalem, Nevo, 2003)Google Scholar [Hebrew]; Saban, “Minority Rights in Israel,” supra n. 3, at 269–271, 278–280; Saban, “Minority Rights: A Framework,” supra n. *.

35 Another important issue that is too lengthy to discuss here is the lack of group-differentiated rights (from the three types) of mass communication in the media. The (in) visibility of Arabic and of the Arab-Palestinian minority itself in the publicly-financed electronic media and in the powerful private electronic media in Israel, and the lack of minority operated television channel or radio station which could be a forum for discussing, setting and promoting the minority agenda(s). There is only one radio station controlled by minority members, and it is private and regional. See, inter alia, Saban, “Minority Rights in Israel,” supra n. 3, at 285–7.

36 On the issue of unilateral bilingualism, see Smooha, Sammy, “Existent and Alternative Policy towards the Arabs in Israel,” (1980) 26 Megamot 15–18Google Scholar [Hebrew]; Al-Haj, 1995, at 110.

37 Proposed Law (Order in Council – Amendment – Official Language) 1999 – P/579.

38 Ram Engineers, supra n. 30.

39 Ibid, at 217. For a comprehensive discussion of ethnic relations in Nazareth-Illit, see, Rabinowitz, Dan, Overlooking Nazareth: The Ethnography of Exclusion in a Mixed Town in Galilee (Cambridge, Cambridge University Press, 1997)CrossRefGoogle Scholar.

40 For a more thorough discussion, see Barzilai, Gad, “Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli-Arab-Palestinian Community,” (2002) 34(3) Israel Law Review, 425-451, at 438–9Google Scholar; Adalah Report, supra n. 5, at 67.

41 See Reg. 15 (b) of the Tenders Requirement Regulations, 1993.

42 See the letter of the Attorney General to the legal counsels of the government ministries from November 17, 1999 (copy kept with authors).

43 See the agreement that gained the status of a ruling: H.C. 4438/97 Adalah v. Ma'atz (Public Works Department) (Unpublished decision). See also the agreement that gained the status of a ruling in H.C. 2354/93 The Association for Civil Rights in Israel and the Committee for Social Development in Haifa v. Municipality of Haifa (Unpublished decision). And see especially the ruling in Adalah v. The Municipality of Tel Aviv-Jaffa, supra n. 8, (on the issue of the language of municipal signs).

44 Magnet, supra n. 17, at 35–40, 65–67; Saban, The Legal Status of Minorities, supra n. 17, at 204–209.

45 See the important analysis of this cross-cutting issue of “naming” and language in Israel, in Benvenisti, Meron, Sacred Landscape (Berkeley, University of California Press, 2000), esp. 52–54Google Scholar.

46 We are grateful to Attorney Jamil Dakwar from Adalah for drawing our attention to this unresolved issue.

47 Supra, n. 8.

48 For the text of Article 82, see the text accompanying n.6 supra.

49 See, supra n. 10.

50 This point appeared in the Supreme Court's jurisprudence even earlier; in H.C. 12/99 Jamal v. Sabek, 53(2) P.D. 128.

51 Ibid., para. 25 of Chief Justice Barak's ruling [references deleted, emphasis added]. See also the opinion of Justice Dorner, paras. 6 and 7 in her ruling. One should add, that the nature of the Arab-Palestinian minority as a “native minority” was also emphatically held by the official Commission of Inquiry into the October 2000 events [the Or Commission, which dealt with the violent clashes between Arab citizens and the police, accompanying the outbreak of the second Intifada in the Occupied Territories; these clashes ended with twelve Arab Palestinian citizens of Israel and one Palestinian resident killed by the police.] See the Or Commission Report, (2003) Part 1, para.5.

52 Kymlicka, Multicultural Citizenship, supra n. 11, at 95–96.

53 Amara, Muhammad H. and Mari, Abd Al-Rahman, Language Education Policy: The Arab Minority in Israel (Dordrecht, Kluwer Academic Publishing, 2002), at 83Google Scholar.

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55 Amara, “The Place of Arabic in Israel, ibid., at 64–65; Amara, Muhammad H., “The Sociolinguistic Fabric of the Arab Minority in the Hebrew State” in Amara, Muhammad H. ed. Language and Identity in Israel (Ramallah, MADAR- The Palestinian Forum for Israeli Studies, 2002) 89, at 98–99Google Scholar.

56 Canada consists of 10 provinces. The relations between the Federal Government and the provinces are structured and enshrined in the Canadian Constitution. Most Canadian francophones (who by 1991 were 6.4 millions out of 27.4 millions Canadians, or 23.5%) reside in Quebec, in which they form a decisive majority. By force of the Canadian Constitution's allocation of powers and as result of their control of the province of Quebec, the francophones have been holding very impressive self-government rights. See, inter alia, McRoberts, Kenneth, Quebec: Social Change and Political Crisis (Toronto, McClelland & Stewart, 1993)Google Scholar; Young, Robert A., The Secession of Quebec and the Future of Canada (Montreal, McGill University Press, 1995)Google Scholar.

57 McRoberts, ibid., at 427–35; Saban, The Legal Status of Minorities, supra n. 17, Ch. 4–5.

58 Magnet, supra n. 17, at 24–35; Saban, The Legal Status of Minorities, supra n. 17, Ch.5.

59 Smooha, Sammy, Autonomy for Arabs in Israel? (Israel, Beit Berl, 1999), at 109–110Google Scholar [Hebrew]; Saban, Ilan, “Up to the Limits of the Zionist Paradigm” in Lazar, Sarah Ozacky et al. , eds. Seven Roads: Theoretical Options for the Status of the Arabs in Israel (Israel, Givat Haviva, 1999), at 97–99Google Scholar [Hebrew].

60 Saban, “Minority Rights in Israel,” supra n. 3, at 296–297.