The Supreme Court yesterday upheld Israel's right to determine who enters and may reside in it, albeit by a razor-thin majority. For now the view that held sway was that of retiring Deputy Chief Justice Mishael Cheshin, who argued that "Israel isn't obliged to open its gates to citizens of an enemy state, with which it is engaged in armed conflict."
Cheshin maintains that Hamas's ascendancy to power has turned the PA into a full-fledged enemy. Certainly under such circumstances, schemes for family reunification, whereby Israeli Arabs can bring in Palestinian spouses, "run counter to the common sense of self-preservation."
He was opposed by Chief Justice Aharon Barak, who stressed that legislation curtailing Arab "family reunification" inside Israel is "by nature discriminatory as it applies only to one ethnic component of Israel's population."
Justice Edmund Levy provided the crucial vote upholding the July 2003 temporary provision to the Citizenship and Entry Law, despite his agreeing with Barak that its violation of basic rights is "disproportionate to any security interests it safeguards."
Levy recommended the the government be granted nine months to formulate new legislation. Justice Minister Haim Ramon already undertook to do so within two months. Levy's position thus created the slender 6-5 majority that keeps the present provision effective.
It is striking that the narrow minority of justices did not consider that Israel has the same right to preserve its character as countries far less imperiled, like Denmark. Realizing that if present immigration trends continue unchecked, Copenhagen will become a city with a Muslim majority in two decades, the liberal Scandinavian state instituted severe limitations on the entry of foreign spouses who marry Danish citizens. Similar get-tough legislation has been enacted in other European countries such as Holland.
There is no comparing Israel's acute vulnerability with the situation in Western Europe. Israel is openly threatened with annihilation - not just physically, by a potential Iranian nuclear capability, but demographically, by Palestinian claims of a "right of return."
Nor is the 2003 provision, to which our chief justice is opposed, fundamentally new. That essentially restores the status quo ante that existed before the Oslo agreement. During the decade or so in which our citizenship requirements were relaxed under Oslo, some 140,000 new Arab residents took advantage of the provision. Many regard this as "the right of return by the back door."
The government has tended to argue for the stop-gap return of the pre-Oslo practice based on security concerns, such as the fact that some terrorists or terror-facilitators were allowed to become citizens. We agree with Barak, however, that the argument that citizenship requirements should be restricted in this way mainly as a means to keep terrorists out is a weak one.
Israel's right to regulate who enters and settles in it must not rely on a single issue, even if existential like self-defense against hostile newcomers. What if (unfortunately a vast "if") Palestinian terrorism were to cease? Would this mean that Israel had no demographic concerns, or that our right to maintain our Jewish majority had become less fundamental and inalienable that that of Danes who fear losing control of their own country's character?
Israel does not prevent Israeli Arabs from marrying anyone they wish. Israeli Arabs who wish to marry Palestinians can set up their households across the Green Line or anywhere in 23 Arab states. Some of these states, which will no doubt be at the forefront of those proclaiming that Israel is a racist state, themselves overtly prohibit Jewish residency, or even officially prevent Jews from entering their countries or their own citizens from even visiting Israel.
That said, the contentious provision is badly constructed and repeatedly repaired with equal clumsiness. Interior Minister Roni Bar-On has described it as "patchwork."
As indicated by the divisions of the court on this issue, the task of balancing the human rights of Israelis, be they Jews or Arabs, and safeguarding the nation's future creates difficult dilemmas. The law needs overhauling, but without losing the essential premise that Israel retains the right to protect itself and its future generations.