An analysis of the current legal situation
Dr. Aviad Bakshi
It is commonly assumed that there are two official languages in Israel: Hebrew and Arabic. This assumption is not merely an academic theory, but serves as the basis for efforts to strengthen the status of Arabic as a language to be used for public purposes. In other words, many who are under the impression that Arabic has the legal status of an official language seek to maintain it as such.
The purpose of this document is to clarify for decision makers the current legal situation governing Arabic in Israel. This will enable them to make an informed and balanced decision concerning its future status. After the legal ramifications of an official language presented, it will be evident that Arabic is not an official language in Israel.
The State is permitted, and sometimes obligated, to provide linguistic accessibility to government services for speakers of various languages. An official language, though, differs from linguistic accessibility to government services on an as-needed basis, in that it grants a permanent and comprehensive status to the chosen language. An official language is the language in which the government operates in every respect, with all the functional and symbolic significance entailed.
According to Article 81 of the Palestine Order in Council (on which the claim that Arabic is an official language is based), an official language is not limited to enabling citizens to access information, but is the language with which the government operates in general. The official language may be used in courts and government offices, by both the citizens, and judges and officials. Any official government publication must be made the official language(s). The legislature’s choice of an official language therefore expresses a cultural choice concerning the language of government activity, and the public language in its sphere of influence, with all the derivative functional and symbolic significance.
With the establishment of the State of Israel, the Provisional State Council passed the Law and Administration Ordinance and established that any Mandate law shall continue to be in effect, provided that it does not contradict any later legislation or ruling. In light of the full definition of an official language, it would be sufficient to prove that the legislature denied Arabic such a status in a number of key instances to demonstrate that the legislature does not see Arabic as an official language.
The preference of Hebrew as an exclusive official language can be seen from later Israeli legislation, such as: the Criminal Law Procedure Regulations, the Military Justice Law, the Civil Law Procedure Regulations, the Israel Bar Association Law, the Israel Nationality Law, the Planning and Building Law, the Knesset Elections Law, the Physicians’ Ordinance amendment. In contrast with the legislation that gives preference to Hebrew, some Israeli legislation grants equal status to Arabic (and sometimes Yiddish and Russian as well): the Mandatory Tender Regulations, the Television Broadcasts from the Knesset law, the Second Authority for Television and Radio law, the Arabic Language Academy law, and the Films Act. This legislation is generally intended to increase access to information for Arabic speakers, rather than as a symbolic cultural statement.
In light of the all encompassing characteristics of an official language, it is clear that Arabic does have a defined legal status in certain specific legal areas, but that the status of an official language originally granted by Article 82 has long ceased to exist.
The facts parallel the legal situation: Arabic’s status is complex, or more accurately, inconsistent. At times it appears that Arabic has some special status, and at times, it does not. Since, if Arabic were indeed an official language, the government would be required to conduct all its affairs bilingually, we confidently conclude that as a matter of practice, the only official language in the State of Israel is Hebrew.
The question of the status of the Arabic language in relation to the Hebrew language has been raised in the Supreme Court a number of times. A comparison of its rulings from the earlier decades of the State and those beginning in the nineties shows considerable modification. In its earlier rulings, the Court refused to grant Arabic any official status even when legislation explicitly required the use of the Arabic language. In the nineties, the court began to issue rulings that limited the exclusive status of the Hebrew language. For example, in the Kestenbaum case, the court disqualified a ruling that forbade the use of foreign letters alongside Hebrew letters on a private tombstone, but stated that in and of itself, the government’s ability to obligate an individual to use Hebrew was legitimate. In the Romm case, it ruled that an individual could not be legally compelled to make use of Hebrew, but no demand should be made of the government to use Arabic, for example on street signs. In the Adalah case it ruled that local governments in which the Arab minority is more than 6% are obligated to have all street signs in Arabic, but it ruled that the government could not be prevented from marking Hebrew writing next to the Arabic.
The above is concerning the functional status of Arabic in relation Hebrew. But regarding the recognition of Arabic as an official language with an effective status, the Court’s rulings have seen almost no change throughout the years. Even Chief Justice Barak’s Supreme Court, which greatly advanced the status of Arabic in the Israeli public, refrained from basing a ruling on the claim that Arabic was an official language. One of the most telling examples is the refusal of the Supreme Court to issue a ruling in the appeal of Adalah in 2002, in which the organization sought to allow court proceedings in Arabic. (An exception to the above can be found in a ruling of Justice Durner, but she was in the minority.)
In summary, later legislation has invalidated Article 82, and policy and rulings in Israel have granted the status of official language only to Hebrew. Therefore, any legislation that would grant Arabic official language would not be maintaining an existing status quo, but would be a dramatic change with far ranging consequences
Concerning the proposed Basic Law: Israel as the Nation-State for the Jewish People
Countries that have more than one official language are dual- or multi-national countries, which Israel is not. The proposed law, which includes a legal right to linguistic accessibility in Arabic and a “special status,” is far more than that which is granted to minorities in Western countries such as the United States, France, Germany, Italy, and other Western democracies.