March/April 2000


by Rabbi Aharon Dov Halperin
Mar. 16 '00 / Adar Bet 9, 5760

In This Article:
1. Rebuilding an Ancient Homeland 
2. Court Adopts UN Motion 
3. Not Retroactive 
4. Understanding The Motive 
5. Equality Before The Law

On the seventeenth of October, 1975, the United Nations passed its now famous declaration equating Zionism with racism. Some 70 member states supported the declaration, while 29 opposed it and 27 abstained. Israel and its allies were shocked by the decision, and for 26 years thereafter, successive Israeli governments exerted enormous efforts to have it annulled. The Arabs and their UN sympathizers, including many dictatorial regimes, claimed that two central practices of the State of Israel define it as a racist state: the provision of land by the Jewish Agency on which to build Jewish settlements, and the "Law of Return," which grants automatic immigration rights to Jews.

In response, Israel and its supporters conceded that although technically, Israel was practicing a form of "discrimination," there could be no more ethical or righteous policy than to provide the Jewish nation - a people forced to wander the earth for 2,000 years, from inquisition to pogrom to Holocaust - with its own state in its ancient homeland. As such, it was noted, policies aimed at strengthening the Jewish state were simply a classic example of what has become known as "reverse discrimination."

Last week, we all witnessed a pitiful about-face on this issue. Israel's Supreme Court actually decided that the 1975 UN resolution was correct - that Zionism is, in fact, "racism." Those unfamiliar with the ruling may mistakenly believe that it merely involved a private petition that may only coincidentally produce more far-reaching results. True, the petitioner was a private party, an Arab couple - the Kadans - insisting on being accepted into the Jewish community of Katzir. That was their specific claim, but it was rooted in a more fundamental argument that the State of Israel cannot, by the way of the Jewish Agency, establish Jewish communities since such a policy is discriminatory, even racist. Our Supreme Court agreed, and ruled in favor of the Kadans not in just their private petition, but on the fundamental principle that lay at the basis of the petition.

Our High Court effectively breathed new life into the Arab world's decades-long goal of destroying the State of Israel. The Katzir ruling represents not just an affirmation of the UN "Zionism is Racism" declaration - but signals the court's openness, in principle - and perhaps in practice - to dismantle the Jewish state. With this ruling, Israel's High Court is essentially stating that the thousands of Jewish communities founded by the Jewish Agency since the early days of the state were illegal from their very inception. There is even a clear indication in the ruling that Chief Justice Barak would have been prepared to apply his ruling retroactively, but did not do so, "since the present petitioners did not request the court to rule on such a question!"

There is no doubt in my mind that from now on, the Arabs can - and will - shift their entire war against the State of Israel to the "turf" of Israel's very own Supreme Court. Whereas, over the last several years, Arab energies successfully ate away at Israel through the Oslo process, dismantling the state can now be done more directly and efficiently in a perfectly legal fashion. After its success with the Kadan family and the negation of the Jewish Agency law, Arab interests will almost certainly target the Law of Return. They know well that Israel's enlightened High Court will be hard-pressed to reject such a petition, since the logic of such a claim would be identical to that of the Kadan petition. Soon, by way of the same logic, Israeli Arabs will launch a case that questions the very legality of the State of Israel.

Various theories have been bandied about in an effort to explain why Israel's High Court would take such a suicidal step. Some voices in the country's political Right suggest that the court is teaching us about the supreme value of democracy, a value, which, for the court supersedes the right of Israel to exist as a Jewish state. These Right-wing analysts counter with a quote from the late President Chaim Herzog, who once asserted that when there is a clash between democracy and the state's existence, the latter takes precedence. We are asked to believe that Chief Justice Barak just made the opposite calculation. He believes, it is said, that democracy supersedes the value of Israel as a Jewish state.

Now, perhaps if the Knesset, and not the court, had nullified the Jewish Agency law, I may have accepted this kind of explanation. Such a Knesset decision would have been immoral and even infuriating, but it is not impossible for me to imagine the majority of Israeli legislators establishing that in Israel, democracy is more crucial than the Jewish state itself.

But - and here is where I differ with the analysts I mentioned earlier - I cannot subscribe to the theory that the Supreme Court deems democracy the overriding principle of Israeli society. What could be more anti-democratic than a group of people - members of a narrow elite - who continually foist their narrow, elitist philosophy upon the Knesset and the nation? Instead of simply interpreting Knesset laws, the court over the past several years, has declared all matters justiciable! What could be more antithetical to democracy than a ruling (Katzir) with which at least 80% of the Knesset and general population strongly disagrees?

If the court held democracy supreme, why did it disqualify the late Rabbi Meir Kahane from running for Knesset? If our High Court was indeed concerned with democracy, why has it resisted for years the licensing of Arutz Sheva radio? What could be more anti-democratic than stifling the free speech of half the nation, on the basis of some obsolete telegraph law from the 1930's?

Some of you readers may be saying to yourself: "Okay, so let's say I agree that the Supreme Court is somewhat dictatorial and perhaps threatening to Israeli democracy. "But," you may argue, "the court holds one fundamental principle dear: equal rights for all of Israel's citizens, regardless of race, religion, or creed. It's this very principle that the court allowed the Kadans to build a house in Katzir!"

Dear readers, you may then be disillusioned when you hear of another Supreme Court decision, a copy of which is on my desk as I write. The case involved an Israeli Jew, Eliezer Avitan. Some years ago, the Israel Lands Administration founded a settlement near Be'er Sheva for the express purpose of providing a permanent community for Bedouins. Avitan petitioned the court to permit him to purchase a home in that settlement. Like the Kadans, he claimed that not permitting him to do so was discriminatory.

Our enlightened, unbiased Supreme Court rejected his petition. "The principle of equality is designed to serve a just goal," writes the court. "It is not aimed at providing mere technical 'equality' for equality's sake. The state [of Israel] has a specific interest in promoting Bedouin settlement, and it is for this reason that the court has no interest in permitting the petitioner to acquire a house in the community in question."

Follow the court's logic? It is forbidden to establish a community for Jews - what interest does the state have in providing communities for Jews? For the Kadans, the principle of equality thus reigned supreme. The same court, however, says that the state does indeed have an interest in settling Bedouins, and in this case the principle of equality takes a back seat.

Attorney Elyakim Ha'etzni said recently that the next hareidi protest against the Supreme Court should not simply be attended by hareidi and other religious people. Anyone who identifies with the colors "blue and white," who truly cares about the survival of the State of Israel, must also raise their voices.

Let us close by praying to G-d to "restore our judges as in days of old, and our advisors as they once were."

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