Eleven judges of the Israeli Supreme Court decided in a narrowly split vote [6 in favor, 5 against] this week [on 11 January] to continue a ban that has been in effect since 2003, during the height of the Second Palestinian Intifada, on allowing Palestinian spouses to reside legally with their Israeli husbands or wives [and their children] inside Israel.
A Haaretz editorial on 13 January stated that: “In a 2006 ruling, 6 out of 11 justices said the law was unconstitutional, and in the current ruling, 6 out of 11 justices said the law, which was made more strict after the first ruling, was constitutional. That’s a disappointing outcome, in part because the first ruling was made not long after the terror attacks of the second intifada, while the current ruling was made during a period of calm, due in part to coordination between Israel and the Palestinian Authority…”
The Haaretz editorial continued: “The title that Justice Asher Grunis gave his opinion – ‘Human rights are not a prescription for national suicide’ – is also disappointing. No one disagrees with this, but Justice Elyakim Rubinstein, who arrived at the same judicial conclusion, recognizes that ‘a small group – those men and women in Israel’s Arab minority who want to marry residents of the region – must pay a heavy price for greater security for all Israelis, including their own’ … The dissenting opinion properly balances the security needs of all citizens and the rights of individuals; the law should be annulled and replaced with security checks of any candidate for residence in Israel when family unification is involved. The ruling touches on the balance between security needs and individual rights, but the public will understand it as a demographic ruling – one that protects the Jewish majority while harming the rights of Arab citizens.” This Haaretz editorial is posted here.
Gideon Levy wrote in an opinion piece published in Haaretz today that: “Let’s speak plainly: This is about transfer. Not by the army, the settlers or the extreme right, but expulsion under the aegis of the law and with the court’s seal of approval. The ruling of the justices in Jerusalem means breaking up thousands of Israeli families whose mother or father will be expelled … The ink is not yet dry on the Entry Into Israel Law before Israel continues its ethnic cleansing by means of the Citizenship Law. Thus will our encampment be pure. And who shall we thank and bless? The ‘leftist’ and ‘liberal’ court. In the masquerade of defense of the High Court, one mask stands out as particularly deceitful – that of High Court President Dorit Beinisch. A do- gooder, she voted against the shameful ruling. But she drew out the process until an initial justice on the case who opposed the law, Ayala Proccacia, retired and was replaced by a justice who would say yes to the law”.
Levy apparently thinks this was a deliberate strategy in the part of Beinisch, a kind of balancing act. Levy wrote that “Beinishc wanted to have her cake and eat it too – to seem enlightened while not further kindling the anger of the right against her court. Beinisch understands the limitations of power, her supporters say, and realized that the rope could not be pulled too tight, lest it break. Well, Madame President, that rope has indeed broken. A court that neutralizes itself with its own hands and abuses its office out of fear of its enemies is not a court. Long before the Citizenship Law, the rope was no more than a broken reed of support for the protection of human rights in Israel, particularly as long as these rights face off against the molech of security, which the court worshiped almost slavishly; the ruling on the Citizenship Law has now only given the final seal of approval to the end of the sham.” This is posted here.
In another opinion piece in Haaretz today, Yoram Rabin wrote that “In an unprecedented step, one of the most controversial in the history of Israeli constitutional law, the Supreme Court has upheld the constitutionality of a law that prevents family unification in Israel between citizens of the state and residents of the Palestinian Authority (as well as citizens of Iran, Iraq, Lebanon and Syria). The Citizenship and Entry into Israel Law is a special case; it is a law with a different dominant purpose in the legislative process and in the examination of its constitutionality. When the law was first passed in 2003, its main purpose was state security. It was passed during the second intifada, on the initiative of the Shin Bet security service, after a number of cases – the exact figure is disputed – in which entry permits to Israel were used for terrorist activities. Over time, however, a new purpose arose, a demographic goal. At the end of the day the justices unanimously accepted the state’s argument that the law’s purpose was security-based. At the same time it is quite clear that at least some of the judges in the majority opinion ‘talked security’ while ‘thinking demographics’. Some even admitted as much. Justice Miriam Naor noted that the purpose of the law was security but that it had demographic implications – although these issues were ‘indivisible’. Justice Eliezer Rivlin explained that ‘European states are toughening the conditions for immigration, for demographic reasons’. Justice Edmond Levy, who was in the minority opinion that sought to overturn the law, explained that Jews must be in the majority in a Jewish state and denounced what he claimed was the implication that the minority justices ‘put their seal of approval on the so-called right of return of the 1948 refugees’. Levy said ‘the result might have been different’ [How, exactly?] if the state had not insisted on using the security argument instead of putting forth arguments regarding ‘the composition of Israel’s population, or appropriate immigration arrangements’. The indivisible link between the security and demographic arguments was also raised in 2006, the last time the Supreme Court deliberated on the citizenship law. On that occasion, justices Ayala Procaccia and Salim Joubran questioned the credibility of the security argument, proposing that the true purpose of the law may be to use immigration law to prevent an increase in Israel’s Arab population. The citizenship law episode is over. The cabinet will soon be asked to discuss a bill that puts forth a comprehensive immigration arrangement. That is the place to ask whether such an arrangement is ‘also expected to address the demographic question – that is, the question of the meaning of a Jewish state and whether that meaning includes the need to foster the existence of a Jewish majority in Israel’, as Rivlin proposed”. This opinion piece is posted here.