Case Number
HCJ 4112/99
Date Decided
7-25-2002
Decision Type
Original
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
The subject of the Petition is whether city councils within whose jurisdiction resides an Arab minority have a duty to use the Arabic language – alongside the Hebrew language – in all city signage. The Petitioners maintain that in cities where there is an Arab minority all city signs must include writing in Arabic as well. On the other hand, the Respondents believe that such a general duty does not exist, and that the matter is subject to the discretion of the various municipalities.
The Supreme Court held:
A. 1. Posting direction signs within a city municipality’s jurisdiction is subject to the council’s authority. This derives from the municipality’s general authority to provide services for public benefit, as said in section 249 of the Cities Ordinance [New Version] (hereinafter: The Cities Ordinance). A special power has been granted to the municipality to post signs as to street names, as said in section 235(4) of the Cities Ordinance. Municipalities serve as “local street and traffic signs authority” according to section 18 of the Traffic Regulations 1961. These provisions empower municipalities to install direction signs within the municipality’s jurisdiction. The text of the provisions includes no explicit instruction as to the language of the signs.
2. Article 82 of the King’s Order in Council on the Land of Israel 1922 (hereinafter: The King’s Council) establishes that Hebrew and Arabic are official languages. It additionally provides that for purposes of local governance, all official notices by the local authorities and city municipalities in areas determined by order of the High Commissioner be published in Hebrew and in Arabic. Such orders were not published. In such circumstances, even assuming that city signage falls under the definition of “official notices,” article 82 of the King’s Order in Council does not place an obligation on local authorities and municipalities to post city signs in the official languages so long that the areas where a duty of posting applies have not been defined.
3. It cannot be said that Article 82 of the King’s Order in Council has no significance in terms of resolving the problem underlying this Petition. This Article established a highly important provision. According to it, Arabic is an official language. This gave it a “uniquely superior status.” It is not like other languages that citizens of the state or its residents may speak. The official status of a language radiates into the body of Israeli law and influences its operation. This influence is reflected, among others, in the weight that the official status of the language is attributed among the range of considerations that the competent authority must take into account when exercising a governmental authority. The “geometric” location of this influence is within the interpretation of the governmental authority in light of its purpose.
B. 1. At the basis of the authority to install city signs stands the need to realize the public interest in providing appropriate and safe service. City signs must be installed so that residents of the city may be able to find their way around the city and its streets and to receive information about municipal services and to be warned about traffic or other hazards. This leads to a conclusion that in those areas of the city where there is a concentration of an Arab minority it must be ensured that alongside writing in Hebrew, there will also be writing in Arabic. This unique purpose lays the foundation for the conclusion that in areas out of neighborhoods where there is a concentration of an Arab minority but are used by all residents of the city – such as main roads – there is reason for Arab writing on city signs. At the same time, this unique purpose also includes the need for clear signage that does not include an endless variety of details and icons in one language or another.
2. The first general relevant purpose for this matter is that which goes to protecting one’s right to one’s language. One’s language is part of one’s personality. It is the tool through which one thinks. It is the tool through which one communicates with others. Language is attributed special significance when the language of a minority is concerned. Language reflects culture and tradition. It is an expression of social pluralism.
3. The Declaration of Independence stipulated that the State of Israel “shall ensure freedom of religion, conscience, language and culture.” The individual was granted the freedom to express oneself in whatever language one may desire. This freedom derives from the constitutional right to free expression as well as from the constitutional right to human dignity. Against this freedom of the individual stands the duty of the governing authority to protect this freedom.
4. The second general purpose that must be taken into account is ensuring equality. Where part of the public cannot understand city signs, its right to equally enjoy the municipality’s services is infringed. Since language is highly important to the individual and to here development, it must be ensured that her possibilities as an individual not be limited because of her language.
5. The third general purpose to consider is the status of the Hebrew language. The State of Israel is a “Jewish and democratic” state, as stated in section 1A of Basic Law: Human Dignity and Liberty. One of the most important expressions of this character of the State of Israel is that Hebrew is its primary language. Any action by the municipal governance that may harm the Hebrew language harms one of the basic values of the State of Israel and conflicts with the general purpose of the law that grants local authority the power to perform that action.
6. The fourth general purpose that must be considered is that recognition of the importance of language as a component in national unity and the definition of a sovereign state. Language is not merely the expression of the individual’s identity. Language is also an expression of the public’s identity. It is the basis that links the individuals to be members of one society. It is the key to social unity in Israel. Hebrew does not belong to one group in Israel or another. It is the asset of the nation as a whole. A common and uniform language in the state has significance with language is the tool through which members of the society communicate with one another through developing the individual and the collective. Therefore the general purpose, which goes to unity and uniformity, also includes preventing a state of “Babylon” of languages, where no one understands each other.
7. The unique purpose, which is providing proper and safe services, leads to the conclusion that there should be Arabic writing in these terms as well. The service provided by the municipality must allow the Arab residents to find their way around the parts of the city where they do not live. The general purposes of protecting one’s right to their language and the need to ensure equality also support this conclusion. The status of the Hebrew language, as a primary language, is not meaningfully compromised. It has not been argued that in areas of a municipality where there is a concentration of Arab residents the writing must only be in the Arab language. The claim is for adding writing in Arabic – alongside writing in Hebrew – on city signs in areas where there is not a significant Arab population of residents. It is hard to see how this harms the Hebrew language. Even were there such harm, it is miniscule compared to the harm to one’s right to their language and to the need to ensure equality and tolerance.
8. Writing in a great variety of language on city signs ought not be permitted, even if within the municipality are many who speak those languages. The Israeli speaks Hebrew, and those who speak different languages – and no one prevents them from doing so in their own affairs – learn the Hebrew language, which is the primary language of Israel. Once they do so, equality is ensured as well. However, in this balance we must allow writing in Arabic, in addition to Hebrew, on city signage. This conclusion is a result, on one hand, of the great weight that must be attributed to values regarding one’s right to her language, equality and tolerance. On the other hand, this conclusion is also a result of the absence of harm to the supremacy of the Hebrew language and the slight harm that using Arabic on city signs causes national unity and the sovereignty of the state.
9. The uniqueness of the Arabic language is twofold: first, Arabic is the language of the largest minority in Israel, which has resided in Israel for a very long time. It is a language connected to cultural, historical and religious characteristics of the Arab minority in Israel. It is the language of citizens who, despite the Arab-Israeli conflict, wish to live in Israel as loyal citizens who hold equal rights with respect for their language and their culture. The desire to ensure co-existence in respect and mutual tolerance and equality justifies recognizing the Arab language on city signs, in such cities where there is a significant Arab minority. Second, Arabic is an official language in Israel. Many are the languages that Israelis speak, but only Arabic – alongside Hebrew – is and official language in Israel.
10. Per Justice D. Dorner: Realizing the freedom of language is not limited to protecting the Arab population from prohibitions on using its language, but requires the authorities to allow the Arab minority to live its life in the State of Israel in its language. The presumption is that Arab citizens in Israel may know only Arabic, and in any event master this language alone. The status of the Arab language as an official language is inconsistent with limiting signage only to particular areas within the responding municipalities. This limit, too, has an offending connotation.
C. (The Dissenting Opinion – by Justice M. Cheshin)
1. Outdoors signage by local municipalities ought to be seen as covered by the definition of “official notices” in Article 82 of the King’s Order in Council, only that the High Commissioner did not make any order under its authority in Article 82, and in any event the local authorities are not obligated to post signs in the Hebrew and Arabic languages. The mere existence of Article 82 – including the power it grants to the government to impose duties on local authorities in Israel in regards to publishing “official notices” – prevents setting rules that would bind the Respondents in the matter, as long as the Petitioners have not exhausted the route that the legislation and case law set for them in order to obligate the government according to its authority in Article 82 of the King’s Order in Council.
2. The Declaration of Independence guarantees freedom of language to all, calls for liberty for every person to use whichever language they choose. The Declaration provides a liberty-type right, and against this right there is no parallel duty imposed on the government, aside from the obligation not to intervene in choices and the duty to prevent others from interfering with the holder of the liberty to use the liberty granted. The government’s duty is merely to fail to act in the area of language, and has no positive obligation to act.
D. (The Dissenting Opinion – by Justice M. Cheshin)
1. Signage within the jurisdiction of a municipality is as any other services the municipality provides its residents. All of these are daily needs, which are within the authority and responsibility of the local authority, and the latter shall do according to its wisdom and its discretion – while considering the welfare of its residents, their best interests and their convenience. One the other hand, where the municipality exceeds its mandate – to properly serve its residents – and enter into realms which require national determination, the Court shall order the municipality to remove itself from handling such matters and focus on that with which it has been charged. The Court shall again remind the municipality that resolutions to state-wide matters are to be left to the authorities of the central government rather than to local authorities, and that local authorities ought to remain within their own four walls and avoid regulating state- or nation-wide issues in the guise of resolving municipal issues.
2. The purpose of the signage is to serve the daily needs of residents. The purpose of the signage is a functional purpose rather than any other purpose. Signage is not meant to serve a state-wide purpose or a state-wide goal. City signs were not meant to satisfy one’s spirit and by their nature were not meant to realize and achieve high and lofty ideologies.
3. The Petition here assumes that the Arab residents leads his life in the city where he lives, and thus the cities where there is a not insignificant rate of Arab residents are obligated to post signs in Arabic. However this premise is wrong. The municipal lines of cities are currently arbitrary, and since the distinction between the Respondent cities and the cities and town in their area is very artificial, the Court would be hard pressed to limit the dual language duties only to the Respondents here. However it is exactly this overbroad outcome demonstrates that the functional argument is flawed at its foundation and that limiting the duties only to the Respondents cities is highly arbitrary and artificial.
4. Signage by the municipality must be done in a language that is clear to residents. Outdoor signs do not fill their purpose properly when passersby cannot understand what is written upon them. In this case, no complaints were levied by neither residents of the Respondent cities nor by the residents elected officials in regards to the city signage. The Court has not even one shred of evidence as to Arabs who have lost their way only because of the absence of Arab writing of names of side streets in Jewish neighborhoods. The Court has not been told a thing about Arabs being harmed because they had faced difficulties in understanding the Hebrew on street signs, and it received no data as to the rate of Arabs who cannot read Hebrew.
5. The Petitioners did not introduce a specific and concrete dispute that demands resolution. The Petition does not reveal the distress of a particular person. The Petitions unfolds merely a theoretical and general grievance as to Arab residents who live within the Respondents’ jurisdiction and who experience hardship in reading street signs. The Petitioners did not meet their minimal threshold requirement imposed on anyone seeking relief from the High Court of Justice – that is, the requirement to support their petition with some factual foundation, never mind a solid factual foundation.
E. (The Dissenting Opinion – by Justice M. Cheshin)
1. The rights recognized by Israeli law are rights whose subject is the individual, a person qua person. Rights, as a general rule – and subject to exceptions – are granted only to the individual. The Court recognized the need to balance individual rights and the needs and best interest of society as a whole, but the social collective in itself has never been the subject of rights. Israeli law does not recognize a collective right – a right against which there is an obligation to act – to cultivate the identity and the unique culture of a particular population group. The right of the individual, of any individual, stands – subject to exceptions – to engage in cultural activity as they wish, however there is no duty imposed upon the state to help a minority to preserve its language and culture and to develop them. The State may decide that it wishes to assist in preserving and advancing a particular language, however such a decision, a decision on the national level, is the prerogative of the government.
2. The Petitioners’ Petition here is that the Court take a clearly political step, no less – that the Court determine, as a legal precedent, that Arabs in Israel are but citizens entitled to equal rights (and duties). The Petitioners wish for the Court to hold that Arabs in Israel are a national and cultural minority, that preservation and advancement whose independent identity the state is obligated to support. However such finding is a political determination of the highest order and the authorities empowered to reach such a decision are the political authorities – not the Court. The Court must not create a collective, general right of the Arab population – as a minority group – to cultivate and to preserve its national and cultural identity with the State’s assistance, before the legislature has its say and before a deep national conversation is held. The Court was not designed to fill a legal norm with political ideology, and it shall not do so.
Keywords
Constitutional Law -- Freedom of language, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Constitutional Law -- Freedom of Expression
Recommended Citation
Barak, Aharon; Dorner, Dalia; and Cheshin, Mishael, "Adalah -- The Legal Center for Arab Minority Rights in Israel v. City of Tel Aviv-Jaffa" (2002). Translated Opinions. 22.
https://larc.cardozo.yu.edu/iscp-opinions/22
