The verdict regarding the settlement of Qatsir is
perhaps the most important of the verdicts ever handed down by the Supreme
Court in recent years. It considered the clash between the policy of
Jewish settlement in Eretz Israel and the demand of a member of the
Arab minority to be accepted into a settlement that was founded by the
Jewish Agency. This clash was not considered directly in the judgement.
The majority opinion, voiced by the President of the Israeli Supreme
Court, Aharon Barak, does not decide the issue directly. The majority
opinion determined two principles: First, separate allocation of plots of
land for Jewish and Arab settlement is necessarily discriminatory and
illegal. Second, the principle of equality and the prohibition of
“discrimination” flows entirely from the principles of the State of Israel
as a Jewish state.
In this article, the author attempts to formulate a
critique of the judgement from several points of view:
-
President Barak’s disregarding of the specific
purposes of the Law of the Israel Lands Administration.
-
How does a man who has not served in the IDF bear
the burden of protecting the settlement of Qatsir?
-
Why do members of the majority group not have the
right to reside separately, for the sake of cultivating their way of
life and their culture? This question is sharpened in view of Israel’s
self-definition as “a Jewish and democratic state”. This is said,
presumably, to make it possible for Jews to live a full Jewish life in
Jewish surroundings.
Further on in the article, it is shown that President
Barak’s judgement deviates sharply from previous rulings that were
determined by the Supreme Court, which tried to strike a balance between
the principle of equality and other principles or interests. The principal
criticism is directed toward the determination that the principle of
equality flows from the Jewish character of the State. This position
derives from President Barak’s conception of “the Jewish State” as meant
to express only the universal values embodied in Judaism and Zionism. It
is argued that this position distorts the balance made by the Legislator,
by his anchoring particularistic Jewish-Zionist values to
democratic-universal values. The most profound argument is that the
recognition by the Court of the supremacy of Basic Laws, which anchor
Israel’s values as a Jewish and democratic state, means that every law
must be interpreted in light of the Basic Laws, and the Basic Laws must be
interpreted on the basis of themselves and in light of the values that
they are meant to support, rather than on the basis of values external to
them.
The most important argument of all is that the
judgement constitutes a dangerous shift toward the model of “a state of
all its citizens”, in which the national interests of the Jewish people
are not considered legitimate goals, so that the State may use force to
promote them. Even if on the rhetorical level, the decision-maker denies
the change after all, qualitatively the judgement involved a significant
order, which indicates a dangerous future trend.
In conclusion, the argument is considered that the
model of ethnic democracy, in which there is equality among all the
State’s citizens, but not between all its ethnic groups, is the model that
presents an alternative worthy of the new tendency of the Supreme Court.
This model is the best synthesis which combines the values of Israel as a
Jewish state and its values as a democratic state.
