KATZIR IN THE KNESSET: WHY A SHAKY DECISION SHOULD BE LEFT ALONE

In a landmark decision in March 2000, the Israeli Supreme Court ruled that the long-standing policy of transferring state land to the Jewish Agency, whose mission from pre-state times has been to develop Jewish communities in the land of Israel was illegal discrimination. The case came about when an Israeli Arab citizen was blocked from moving into Katzir, a town built by the Jewish Agency in 1982 in an effort to establish a more favorable demographic balance in the area, which abutted the '67 border. The decision has to be considered the one of the most audacious examples of the Barak Court's activism. Implying the principle of equality into Israel's land allocation laws, the Barak Court ruled that the Israeli government could not directly or indirectly (through the Jewish Agency) discriminate against Israeli Arabs in the issue of housing. The decision was a courageous judicial declaration of minority rights in a democracy. Unfortunately, this declaration was based upon little more than the ideals of the justices. The status of non-Jewish minority has never been clearly defined under Israeli law. Israel has no equivalent to the Equal Protection Clause (nor a binding constitution, despite the claims of the Barak Court to the contrary) While non-Jews in Israel have some of the most essential democratic rights (voting, freedom of expression,etc.) most public institutions and services are separate and decidedly not equal. This, more than anything connected with the occupation of Palestinians, is the biggest stain upon Israeli democracy.

From the moment the Katzir decision came down, it was inevitable that it would be challenged in the Knesset. As Israel has no constitution, in theory any Court decision can be overturned by Knesset legislation. Thus, the National Religious Party has proposed a bill that will explicitly allow state land to be alotted solely to Jews. Proponents of the bill feel that such authority is essential to preserve Israel as a Jewish state - by establishing Jewish communities in areas of pre-67 Israel that are demographically suspect (the Gailee) or especially vulnerable (border areas).

The proposed bill is a disaster on many levels. First, it is repugnant to the principles of democracy and not essential to Israel's existence as a Jewish State (unlike for example, the Law of Return). It is one thing to limit the rights of specific Israeli Arabs that identify with Israel's enemies and seek to destroy the state - it is another to treat all non-Jews in Israel as a fifth column that needs to be suppressed. Second, it is likely to create a constitutional crisis that is for the moment avertable. The response of the Barak Court to this legislation will be to rule it unconstitutional, holding that it violates the Basic Law: Human Dignity and Liberty. That would be unproblematic if it weren't for the fact that said Basic Law wasn't even passed by a majority of the Knesset, let alone adopted through a heightened constitutional process. The precariousness of the Barak Court's assertion of judicial review has led it to tread lightly until now, striking down only low-profile legislation. A decision to strike down Knesset legislation designed to overturn Katzir will bring the issue of the Court's authority front and center. Third, if the bill is designed to minimize the threat Israeli Arabs pose to Israel's security, it is woefully misdirected policy. Segregating and degrading Israeli Arabs will only heighten their alienation from Israel and enhance their identification with the Palestinians. On the other hand, if Israeli Arabs were given equal access as individuals to the economic and educational opportunities of Israel society, they are more likely to have a stake in the survival of the state. At the present time, opposition to the bill is centered on its potential damage to Israel's image. Far more attention needs to be paid to the bill's potential damage to Israel's reality