Israel should avoid replicating South Africa’s National Party shenanigans

By Peter Bailey

Counsel for the government of Israel, in applying for a postponement of the Supreme Court hearing on the Reasonableness Law said “The petitions involve historical, jurisprudential and doctrinal issues on a massive scale, and they likely lack precedent in the history of the High Court of Justice and other authorities. It’s doubtful that they have precedent in the entire Western world”. While there might not be an international precedent on the Reasonableness Law, there is certainly precedent material with regard to a democratically elected government trying to usurp the authority of a High or Supreme Court, and the end result.

The current situation in Israel is very reminiscent of political events in South Africa during the period 1951/1952 following the victory of the right wing Reformed Nationalist Party and its equally right wing Afrikaner Party partner in the 1948 general election. The primary objective of the governing coalition was to  pass legislation that would ensure its continuation as the governing party in a “democratic dictatorship”, by rigging the system. Ridding the voter’s role of the Mixed Race voters, colloquially referred to as Coloured voters, whose rights were entrenched, suited the Nationalist Party’s racial policies, while simultaneously removing a substantial block of voters who supported the opposition. Doing so would almost guarantee the coalition’s ability to hold onto power in future elections. This resulted in the Separate Representation of Voters Act of 1951, disenfranchising Coloured voters. The law was subsequently invalidated and set aside by the Supreme Court of South Africa as being unconstitutional, as it had not been passed by  the required two thirds parliamentary majority, but by the coalition’s slim 9 seat majority in the 150 seat parliament.

Onslaught on Judiciary. South Africa’s old Supreme Court in Bloemfontein when in the early 1950s was being undermined by the Nationalist government in furtherance of its agenda to disenfranchise the Coloured community.

The response from the governing coalition was to pass legislation in 1952 titled the High Court of Parliament Act, which would allow a simple majority in both houses of Parliament to set aside any judgment of the Supreme Court of South Africa. The Legislature consisted of an upper house, the Senate, with its members elected indirectly by the four provinces, and a lower house, the Parliament, elected by White and enfranchised Colored voters. During 1953, the Supreme Court invalidated the High Court of Parliament Act, with the Chief Justice stating:

 “The so-called High Court of Parliament is not a court of law, but simply Parliament functioning under another name … Parliament cannot, by passing an act giving itself the name of a court of law, come to any decision which will have the effect of destroying the entrenched provisions of the (Supreme Court in the) constitution“.

The Government response to the Supreme Court ruling came in 1955 when the Senate was artificially enlarged with government appointed members who would ensure a two thirds majority, and so the Colored voters were soon disenfranchised with a contrived two thirds majority vote.

These attempts by the South African government coalition to set itself above the Supreme Court between 1951 and 1955, bear many similarities to the current attempts by Israel’s governing coalition to empower themselves to overrule the High Court with a simple majority in the Knesset. While the South African right wing coalition was able to manipulate the rules to its own advantage by maintaining popular support, the turn of events in Israel have shown that there is a huge groundswell of public disapproval of the intended law reforms.

Cataclysmic Clash. Determining the future character of the state of Israel, prime minister Benjamin Netanyahu faces off against Esther Hayut,Chief Justice of the Supreme Court of Israel.

Returning to the South African example, once the parliamentary vote was rigged to suit the governing Nationalist Party, there was nothing to hold them back from passing a plethora of discriminatory laws which entrenched the Apartheid policies of the government. These laws encompassed every aspect of life for non-White South Africans, defining who they could marry and where they could live and work. While these three factors were crucial to enable government policies, what became known as Petty Apartheid soon reared its ugly head. White facilities such as parks, churches, shopping centers, cinemas and sporting facilities were soon denied to non-whites, with Black, Colored, and Asiatic South Africans each having to develop their own racially exclusive facilities.         

Parallels between the racist policies of the South African government are very evident in the racist and divisive policies enunciated by the extreme right wing parties in Israel, as well as by some on the extreme right fringe of the Likud.  These extreme racist views do not permeate the whole coalition in Israel, with the ultra-orthodox component more concerned with looking after its own constituency, while the extreme policies are designed to attend to the wants and needs of its own largely nationalist religious supporters. This brings us to the sought after law reforms of the Israeli right wing, where the similarity with South Africa ends, as each component of the coalition wants similar changes to the judiciary for very different reasons and to attain divergent ends. This desire to change the judicial system is the only cement actually holding the current coalition together.

The prime mover of the law reform has been justice minister Yaariv Levin, whose grandfather hailed from Kroonstad, a bastion of Afrikaner nationalism in South Africa’s Orange Free State.  Levin might well have an agenda of his own, but appears to be acting in the best interests of his boss, prime minister Benjamin Netanyahu. Netanyahu is facing several criminal charges with varying degrees of gravity, which he blames on the system, including the police, the attorney general’s office and the judiciary for fabricating. Laws dubbed as the Netanyahu Law have been passed to benefit the prime minister, with the courts apparently reluctant to allow laws with personal benefits to pass muster. So the Likud wants and supports legal reform to help to allow their leader to get off the hook.

Power Broker. Justice minister Yariv Levin, whose forbears hail from Kroonstad in South Africa, introduces plan to curtail power of judiciary that would boost the power of the elected officials over the courts. (Photo Ben Hakoon)

Thrown into the mix are the extreme right wing Religious Zionism and Otzmah Yehudit parties, who would like legal changes allowing them to have free rein in the West Bank to bring about a de facto, and preferably de jure annexation of the territory by Israel. They would then probably look to introducing policies similar to Bantustan policies that held sway in South Africa during the Apartheid years. Creating Arabstans (including Israeli Arabs) looks well suited to fitting their world view of settling the Israel Arab conflict. Nothing less than a totally subjugated Arab population subject to Jewish rule will satisfy Israel’s racist extreme right wing parties.

Next up with a ‘wish list’ are the haredi parties – United Torah Judaism and Shas – representing the ultra-orthodox communities in Israel. They have an interest in changing the legal status in order to obtain maximum financial benefits for their congregants, while keeping their children out of military service. Their support for the coalition has been bought with handouts from Netanyahu that will be paid for by the Israeli taxpayers, with very few ultra-Orthodox counted  among the tax paying public.

Few are Smiling Today. While there was much smiling at the President’s residence in Jerusalem on December 29, 2022, by members of Netanyahu’s new Israeli government, outside today in Israel’s streets, people protest against this government’s assault on the Supreme Court.  (Yonatan Sindel/Flash90)

The needs and desires of prime minister Netanyahu, his right- wing Likud members and his coalition partners remain focused on self-gratification; they are quite prepared to see the rest of Israel suffer the fallout, from destructive damage to the IDF, right through to an economic collapse.

This article began with South Africa and the 1948 National Party victory which ushered in  disrespect for the established rule of law and ended in 1994 with an economic collapse followed by  precisely what the Nats were seeking to avoid: Black majority rule.

Let me end off by expressing the hope that the end result of extreme right and ultra-orthodox aspirations don’t bring about the end of the Democratic Jewish State of Israel.

While the mission of Lay of the Land (LotL) is to provide a wide and diverse perspective of affairs in Israel, the Middle East and the Jewish world, the opinions, beliefs and viewpoints expressed by its various writers are not necessarily ones of the owners and management of LOTL but of the writers themselves.  LotL endeavours to the best of its ability to credit the use of all known photographs to the photographer and/or owner of such photographs (0&EO).

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