Attorney General Menahem Mazuz´s decision to allow Israeli Arabs to bid for land owned by the Jewish National Fund is not an ideological decision, as his many Super- Zionist critics seem to think.

It is a legal decision based on a professional and objective analysis of the precedent set by the High Court of Justice on March 8, 2000, when it handed down a landmark decision regarding a neighborhood in Katzir that had originally been earmarked for Jews only. The High Court ruled that the Katzir residents´ committee could not reject the application of an Israeli Arab, Adel Kaadan, on ethnic grounds.

Supreme Court President Aharon Barak wrote in that ruling, "Once the state has been established, it grants equality to all its citizens. Israel is a Jewish state in which minorities live, including the Arab minority.

Every minority member enjoys full equality. It is true that a special key [the Law of Return] to enter the home was given to the Jewish people.

But once a person legally resides inside the home, he enjoys the same rights as everyone else." On the basis of this principle, the court ruled that the government could not give state land to the Jewish Agency to establish a community because according to its mandate, the Jewish Agency could only allocate that land to Jews since it was established to serve the Jewish people. The court ruled that the state could not lend a hand to discrimination against any of its citizens.

The Jewish Agency and the Jewish National Fund (JNF) were both established before the state was created to advance the interests of the Jewish people and the Zionist movement.

They were exclusively Jewish institutions.

The JNF´s mission was to purchase as much of the land of Israel as it could, while the Jewish Agency promoted Jewish settlement on the land, served the Jewish diaspora and represented the Zionist movement and the Jewish people on the world stage.

According to the JNF´s mandate throughout the decades, it held the land as the custodian of the Jewish people and allocated it to Jews alone.

Today, it owns some 2.6 million dunams.

The underlying question that arose in the Katzir petition, and subsequently in the JNF petition, was the relationship between these exclusive institutions and the state, which is bound by the principle of equality. In the Katzir petition, the court ruled that the state cannot relinquish its responsibilities to all of its citizens to non-state and exclusivist institutions.

Buoyed by that decision, three human rights organizations petitioned against the Israel Land Authority (ILA) practice of allocating JNF land to Jews only. The petitions were triggered by a tender issued by the ILA for plots of land in Givat Makush, in Carmiel.

When the ILA awarded several plots to Arabs, Jewish purchasers protested and the land authority hastily withdrew the tender. When it issued another one several weeks later, it wrote that it was bound by an agreement between the State of Israel and the JNF, meaning that Arab bidders were ineligible.

On the basis of a cold-blooded legal analysis of the High Court ruling on Katzir and the similarities between the Katzir and JNF cases, Mazuz concluded that the state would lose the petition if it tried to defend the JNF´s position. His assessment had nothing to do with his own private preferences, which, of course, we do not, and should not, know.

Assuming that Mazuz´s analysis was correct – and it seems perfectly logical - the "fault," if there is one, lies with the High Court of Justice which set the precedent five years ago. During those five years, the Knesset could have passed a law to bypass the Katzir decision. It did not dare do so, because it knew that such a law would be blatantly undemocratic. (© 1995-2004, The Jerusalem Post 01/27/05)