In formulating the High Court of Justice's ruling on the Nationality and Entry into Israel Law (Temporary Order), a ruling that makes it possible to deny Arab citizens the rights that Jews have, Justice Mishael Cheshin wrote: "If someday the Knesset legislates an immigration law whose purposes include preserving the Jewish majority in the state of Israel, it is possible that the court will have to examine the demographic consideration in-depth, and the court will take up the matter and vanquish it. However, this is not the case with the matter at hand, as we have not been asked to examine this issue."
But even this loquacious formulation cannot remove the large shadow that was cast yesterday over the Supreme Court, the shadow of Yisrael Beiteinu Chairman Avigdor Lieberman. It is very doubtful that the High Court is capable of protecting Israel's Arab minority against further racist legislation.
"The demographic issue" reverberates through long pages of the court ruling, especially in the form of denial. This ruling must be deemed a masterpiece of denial. Although Justice Ayala Procaccia, one of the minority justices, wrote of the demographic consideration: "Even if it cannot negate the truth of the security consideration, it may affect its weight and strength" (Justice Salim Joubran also wrote in this vein), the bulk of the denial came from Supreme Court President Aharon Barak, who insisted on writing that the matter of the "Jewish majority" is not what motivated the legislator to amend the law. Why did Barak insist on integrating denial of the demographic motive into his opinion?
Perhaps this is the Supreme Court president's contribution to rebutting possible criticism of the court by the legal community abroad. Perhaps he was trying to ensure that the ruling does not afford the legislator a legal basis for continuing to deepen the apartheid legislation. After all, ever since the state's establishment, the security justification has served as a front behind which other considerations stood. The very identification of "the state's security" with "the Jewish majority" is due to this long-standing tradition, which can be seen in the legislation on land ownership. Here, too, the words "the state's security" are camouflage for assuring extra rights for the Jewish majority. The Supreme Court can no longer boast of clean hands. Moreover, the public debate about the law, and the fervent statements in support of it that related precisely to "preserving the Jewish majority," cannot be erased with the sweep of a decision.
Yesterday's ruling mixes the issues of "the Jewish majority" and "the state's security" and places both under the formalistic facade of "immigration policy," making disingenuous use of European legislation against immigration from Third World countries. To this end, Cheshin made use of an article written by Professor Amnon Rubinstein and Liav Orgad ("Human Rights, State Security and the Jewish Majority - The Case of Immigration for Purposes of Marriage"), which was published earlier this year in the Israeli legal journal Hapraklit. Even the article's title points to the connection between "security" and "the Jewish majority."
Cheshin wrote: "Beyond this stands the state's right not to allow residents of an enemy country to enter its territory during time of war." However, Palestinians who live in the occupied territories are not "inhabitants of an enemy state." They are not inhabitants of any state. They have been subjects of the Israeli occupation for over a generation. Moreover, they have no other country, and Cheshin, when he suggested that the petitioners "go to Jenin" during a hearing on the petition in February, knew very well what he was decreeing for Palestinians in the territories, as well as for Arab citizens of Israel: to be squeezed into the place offered to them; to live alongside Jews who come in their tens of thousands from every country in the world; to accept the fact that among the million who came during the past 15 years, one-third are not Jewish, yet they do not endanger "the Jewish majority" - not because they are not "part of an enemy country," but because they are not part of the Palestinian people.
No formalism can force the Palestinian question into a disingenuous formula of "immigration to a European country" or "immigration from an enemy country (we are not, after all, talking about immigration from Syria). We are talking about the life of a single community, part of which lives in a country that discriminates and the other part of which lives, defenseless, under prolonged occupation. The only comfort a fair-minded person can draw from this ruling is the wise words written by Barak: "It is not possible to maintain a sharp distinction between the status of human rights during wartime and their status during peacetime. The line between terror and calm is fine. It is thus everywhere. It cannot be maintained over time. We must take human rights seriously, both during wartime and during times of calm." And he added: "We must free ourselves from the naive belief that when the terror ends, it will be possible to turn the clock back." On the other hand, who could continue to hold this naive belief in light of this ruling?
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