Shmuel Rosner
Jewish Journal (Opinion)
January 12, 2012 - 1:00am

It was an important decision and not a trivial one, when Israel’s Supreme Court upheld a law yesterday that prevents most non-Israeli Arabs who marry Israelis from living in Israel. The court was split almost in half: Six justices sided with the majority ruling and five justices – Chief Justice Dorit Beinish included – opposed the ultimate decision. The numbers reflect the magnitude of the dilemma, they reflect the fact that this cannot be an easy decision for any country, and they reflect the delicate balancing act with which Israel has to live. Thus, it is good that five justices did not want to uphold the law, good to have a sizable opposition for such ruling.

The law in question is problematic. It is meant to prevent the immigration of non-Israeli Arabs – mostly Palestinians who live in the West Bank and Gaza – into Israel by way of marrying Arab Israelis. It states that the interior minister can grant citizenship only when an applicant has convinced him that he identifies with the State of Israel or in cases where the applicant or his family members have contributed to Israel’s security.

Civil rights advocates have argued that such a law infringes on the rights of Israeli citizens to a family life. The Israeli authorities claimed that Palestinian immigrants-by-marriage pose a security threat - a claim that is not easy to prove: The number of Palestinians that were allowed into Israel because of marriage and later were caught engaging in terrorist activity is relatively small. Civil rights advocates also argue that the real story behind the law is not one of security but rather one of demography: The state wants to maintain its Jewish majority. It is a claim that’s hard to deny with straight face, and was definitely one of the reasons for lawmakers to propose and support the legislation.

That the court was split, then, should not be a surprise. Here there was a collision of the most basic and most sacred principals of the Jewish State - Israel’s liberal principles vs. Israel’s constant need to stand alert against its enemy; Israel’s democratic nature vs. Israel’s ultimate desire to maintain a Jewish majority and a Jewish character (whatever that means).

One should not be surprised by the nature and tone of response to this ruling of the court. Naturally, Arabs were not happy with the court’s decision. Leftist Israeli lawmakers joined in the condemnation, saying that “the [Supreme] Court’s power has been weakened in the fight against racism.”

At the other end of the political spectrum, Education Minister Gideon Sa’ar mocked the protestations from the left. “Respect for the rule of law and for judicial decisions cannot only be when those decisions are consistent with one’s own world view,” he said, reminding Israelis that speakers on the left are usually the first ones to defend High Court decisions, and the first ones to see any criticism of the court as sign of a weakening democracy.

That the court is influenced by the public mood is a possibility. That it is influenced by realities “on the ground” is also a possibility. This just might be one of these cases where reality has to trump theory. On paper, the law at hand is not an easy one to defend. In reality, eliminating a law that is quite sensible under the current circumstances is also not easy to defend. On paper, the law (and the court’s decision) might seem like a blow to human rights and human dignity. In reality, human rights can’t be defended out of context and can’t be judged as a stand-alone value. Yes, security matters, and, yes – as unfashionable to say it might seem - demography also matters. Preserving a Jewish majority is very important – the core reason for which Israel was established. Is it more important than “human rights”? That is not a fair question. The law doesn’t cancel “human rights” but rather limits one right for some people, for the sake of preserving other rights of other people: the right of Israelis to be safer, and the right they have to defend the character of their Jewish state.

Is this an easy call? I wouldn’t say it is - the legislation and the court have limited the rights of Arab Israelis. I thereby understand the frustration and even the indignation of the people opposing the court’s decision. The Supreme Court, though, is not a one-cause institute for human rights. It has to consider human rights, and security, and long-term goals of the state, and the current state of affairs, and, yes, at times even the public mood – and then balance them all. This time, the scale was tipped towards preserving a controversial law, a problematic law, a difficult and sticky law. Not because it is a good law, but because it is better than the alternative.


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