Yom-Kippur in 1973 was a defining moment. Will Yom-Kippur 2023  prove to be another?

By David E. Kaplan

It is 50 years this October since the Yom-Kippur War of 1973 and Israel is again at war – this time with itself.  As Israel over the years since ’73 tamed threats from without, today its greatest threat may lie from within.

According to the Jewish People Policy Institute (JPPI)’ in its 2023 Annual Assessment published on Wednesday, about 37% of Israelis currently hold or plan to acquire a foreign passport with the intention of emigrating. This figure is ALARMING, ringing like the all-too familiar siren warning of an incoming missile. According to the JPPI, this staggering high percentage from a country that in recent years featured high in polls of the ‘top happiest countries in the world” underscores the deepening crisis within Israel and raises questions about the nation’s resilience. The discontent on the street is not as Justice minister, Yariv Levin sees it that “They failed at the ballot box, and now they want to cancel election results.” On the contrary, the “they” as L:evin calls the protestors, feel that in 2023, they suddenly feel they are on the wrong train, going in the wrong direction! One option is to get off before it crashes.

In a year marked by significant turmoil and polarization, due to the governing coalition’s judicial overhaul  coupled with turbulence in areas of religion and state, the JPPI report paints a troubling picture of Israeli society.

An increasing number of Israeli citizens of 2023 see the real danger to their country lying not in Tehran but in Jerusalem. As a metaphor of this change in perspective, Netanyahu’s address at the UN was before a near empty auditorium. This is a marked change from previous appearances before the General Assembly. Even listeners at home who used to hang at his every word, not this year. Few bothered to tune in as too few believe and trust him anymore. His words may still be polished parlance but they are the parlance of a Pinocchio.

And here lies a quirky irony that as the Jewish state reaches out to former enemies striking glorious accords, within Israel today the present government of Netanyahu now sows inglorious discord.

Encapsulating this scenario in a timely metaphor of the ‘State of the Nation’ was again an outbreak of hostilities on Yom-Kippur. This time not on border battlefields, but on the streets of Tel Aviv and between Jews. The largest confrontation was on Dizengoff Square as worshipers began the opening prayer of Kol Nidre. Extremists from the religious right-wing camp, supporters of the Netanyahu governing coalition, attempted (in defiance of municipal and High Court rulings barring gender segregated prayers in PUBLIC places)  to forcibly set up a partition to separate men and woman. In response, counter-protesters disrupted the segregated prayers and the issue devolved into fisticuffs with two arrests.

Even though the ban on gender segregation had been issued by the Tel-Aviv municipality and upheld by the Supreme Court,  this proved no impediment for Itamar Ben-Gvir, the far-right Minister of National Security from calling for a protest prayer later in the week in Tel Aviv. He has since under pressure from his more responsible colleagues called it off. Instead of fulfilling the role of his portfolio by providing ‘security’, Ben-Gvir was typically doing the exact opposite. Displaying disrespect for the judiciary and disdain for those not sharing his views, Ben-Gvir said in a video posted Tuesday on X:

“I say to those anarchists that tried to eject worshipers on Yom-Kippur — I and my friends from Otzma Yehudit are coming on Thursday to the same spot, let’s see you try and eject us.”

And this is Israel’s Minister of National Security who is himself a threat to  national security.

And so, the usually solemn Day of Atonement – Yom-Kippur – saw new controversy over the fate of Israel’s democracy. After nearly 10 months of street protests from Israelis who fear the government is on a tragic trajectory to erode protections for women and minorities and impose an ultraconservative version of Judaism on the public, the flare up on Yom-Kippur added fuel to the fire. If any further evidence was needed to show that the wounds Israel today suffers are sell-inflicted, we have to look no further than its leadership. What the chaos in Tel Aviv did not need need was Ben-Gvir fanning the flames with his rabble-rousing rhetoric nor the prime minister, Benjamin Netanyahu who characterized what transpired as “leftist protesters rioting against Jews.”

Where does Israel go from here with a government which is failing to read the landscape? Is this not what happened in 1973 when it failed to read the military machinations of Egypt and Syria? Today it fails to read the mood on the street as it embarks on policies that are anathema to far too many people. Impervious to entreaties from Israelis and Jews across the world, this extreme right-wing coalition persists on its judicial overhaul that is set to overhaul the Israel we know and it’s relationship with the Jewish diaspora. At a time when we should be strengthening our ties with Jewish communities around the world, this government is alienating them.

The situation reminds this writer of the war room in Tel Aviv in October 1973, captured so brilliantly in the recently released movie ‘Golda’ with Helen Mirren superbly cast as Golda Meir. Taken by surprise in attacks on its two major fronts with Egypt and Syria, Israel faced annihilation.  “We came so close Henry,” says Golda to US Secretary of State Kissinger at one of their meetings. Most of the action in the movie takes place not on the battlefields but in in the underground command centre in Tel Aviv, not too far  from Kaplan Street, the epicenter of today’s protest movement. Was it the directors intent or was it coincidental that the war room in one sense was visually like a battlefield with so much smoke that it was a struggle to see clearly. In the battlefield it’s from the conduct of war, in Golda’s war room it was from incessant cigarette smoke.  Was the smoke the director’s metaphor for a blinding fog –  failing to see beyond the lurking dangers?

DEFINING TIMES

Fifty years later from that defining war, are our leaders today again failing to see the damage they are inflicting on the nation and the Jewish people by their misguided proposals and policies?

Writing in the Times of Israel, Canaan Lidor writes that “Seen more broadly, the dispute over the Dizengoff Square prayer service is a sobering example of how an initiative that once transcended Israel’s religious-secular divide has this year deepened it, amid the ideological clash over religion and state in connection with the government’s judicial overhaul.”

As this country moves and trips after one self-inflicted crises after another, what this Yom-Kippur has shown is that people should really pray for is for reason to prevail! The signs are not good.

“That men do not learn very much from the lessons of history is the most important of all the lessons that history has to teach,” said Aldous Huxley. 

It’s a lesson that Israel’s present leadership is failing to grasp as it careers headlong  along its “March of Folly”.

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).

The Reckless Assault on the Supreme Court

By Raymond Wacks Emeritus Professor of Law and Legal Theory

(Courtesy of The Montréal Review)

The Ashes are slowly fading into a (bitter) memory. England came agonisingly close to winning the historic cricket contest against Australia.[1] One event, however, will be especially hard for English supporters to forget. On the final day of the second test at Lord’s, Jonny Bairstow was given “out” stumped when he wandered out of his crease believing the ball to be dead. While the law was correctly applied by the umpire, his controversial verdict was widely criticised as not being within the spirit of the game.

Suppose that the rancorous reception that greeted this strict interpretation of the laws of cricket led the International Cricket Council to declare that in future, umpires’ authority to declare a batsman stumped would be discharged by the chief administrative official of the ICC placed at a strategic position on the field. Umpires might legitimately wonder whether this encroachment upon their powers did not constitute so gross a violation of their responsibility that they should, at the very least, wish to protest. Imagine that such limitations persisted until they were told that they no longer had the power to decide whether a batsman was out. Their task would largely be confined to calling wides, no-balls, boundaries, and byes. Every diminution in their power would now constitute an affront to their office. A point would be reached when they cease to exercise the very function for which they have been appointed.

The same is true of judges. Unchecked executive discretion reduces them to impotent spectators of executive action – a grotesque distortion of their calling. No government relishes the pesky interference by courts with its political agenda. And this is no less true of democratically elected governments. Nor is the hostility towards judges the monopoly of any ideology: it is expressed by both left and right.

So, for example, the Conservative Party in the United Kingdom has recently witnessed a recent backlash against the escalation of both the extent and scope of judicial review (JR) since the Supreme Court’s notorious ‘prorogation’ decision in 2019 which unanimously ruled that the government did not have the power to suspend Parliament.[2] And in the United States, the Supreme Court is under fire from the Democrats for its judgment that the Constitution does not confer a right to abortion.[3] Moves are therefore afoot in the Congress to neutralize the perceived rightward shift during the Trump administration by adding four justices to the bench. These crusades are injudicious.

The Israeli government, in seeking to curtail the powers of the Supreme Court, is not only undermining the rule of law, but endangering the country’s celebrated democratic system. And in this enterprise, Israel is in questionable company. There are echoes of the South African apartheid government’s crackdown on the judiciary, the erosion of whose powers it assiduously advanced by legislation that prevented judges from ruling on the legality of the detention of its opponents.[4] And PiS, Poland’s ruling party, has branded judges ‘self-serving, unelected elites who substitute their own preferences for those of voters’.[5] This charitable appraisal was followed by the enactment of stringent limitations on the autonomy and independence of the courts.

DEMOCRATIC CHOICE

Populists seem to have little difficulty simultaneously flaunting and flouting the rule of law. The legal system is censured for corroding the rule of law and depriving the people of its benefits, while the law is employed to frustrate democratic values. But, it may be asserted, are not democratically elected legislatures entitled to express the will of their voters even if – as we have seen for months on the streets of Israel – their actions are widely rejected? And does JR not weaken this vital democratic exercise of choice? Surely, it is argued, parliaments are a better, and more representative, forum for the deliberation of important social, political, and moral questions. Legislatures, in other words, have democratic legitimacy. Unelected judges do not. [6]

Two sorts of argument are typically deployed both in support of and against JR. The first asserts that JR is good (or bad) because it delivers better (or worse) results than other procedures for resolving rights disputes. The second claims that JR is good (or bad) because it produces a procedure that is (or is not) consistent with democracy. In other words, public deliberation is good for democracy; JR facilitates public deliberation; therefore JR is consistent with (or contributes to) the conditions of democratic rule.

LEGITIMACY

It is generally assumed that legislatures enjoy democratic legitimacy, while courts generally lack it. But this must surely depend on the circumstances obtaining in respect of both institutions. A Supreme Court’s legitimacy is likely to be strong where – as in Israel – popular support is based on the nature of its powers, its record, or the method by which its members are appointed.

Such legitimacy may, however, turn on the institutions and rights that actually exist or are recognised. The right to vote is obvious, but is the system of ‘first past the post’ (FPTP) more or less democratic than proportional representation (PR)? Complex questions arise when we attempt to evaluate which rights are essential. Are we concerned with the outcome or the means by which they are reached?

The method of appointment of Supreme Court judges is also on the Knesset’s agenda. The legitimacy of the judiciary often turns on how judges are elevated to the bench. Where appointments are generally perceived to be fair, transparent, and non-political, the prospect of the courts enjoying popular democratic legitimacy is obviously enhanced.

JUDICIAL AUTHORITY

To support judicial oversight is not to deny that judges may be influenced by subjective moral, political, or ideological considerations, but that is less likely to occur than in the case of elected legislators answerable to their party or constituency. Furthermore, detached from the rough and tumble of parliamentary rhetoric and oratorical persuasion, judges have both the time and, in many cases, the expertise, to examine both sides of the argument presented to them in an atmosphere, one hopes, of tranquil reflection and deliberation.

Judicial authority is a potent process by which perceived failures in democratic outcomes may be ‘corrected’. It is also generally true that disagreements between judges are generally based on principle rather than popularity. Another advantage of the procedure is that courts are able to safeguard non-majoritarian representative democracy. It also empowers individuals to vindicate their rights against government. Misgivings about its undemocratic nature may be offset by its general legitimacy rooted in its contribution to the protection of individual rights.

There is a paradox in the qualms expressed by those who rail against the alleged hegemony of judges. While on the one hand, JR, especially in its strong form, is perceived as a force that destabilises the separation of powers and the democratic principles which are its constitutional underpinning; the rule of law is, on the other hand, actually enhanced by the power of courts to ensure that government actions comply with the constitution. I believe that to diminish judicial authority is to weaken a major pillar of democratic government.

It is time for Prime Minister Netanyahu, after a tenacious spell at the crease, to accept that his wicket has fallen, and, in the interests of his country, stride graciously to the pavilion.

About the writer:

Raymond Wacks, Emeritus Professor of Law and Legal Theory, graduated from Wits law school in 1969 having served on the Executive of the SRC and as President of the Law Students’ Council. He left South Africa in 1970 to pursue research at Oxford where he spent the next decade. In 1982 he returned to SA to take up the chair in public law at the University of Natal, Durban. 
Wacks is the author of fifteen books, several of which have been translated into more than a dozen languages on legal philosophy, privacy, and justice. He is also the co-author of five books, and editor of ten. His monograph, The Rule of Law Under Fire was published by Hart in 2021. Oxford University Press published the sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory in 2021, as well as the third edition of Law: A Very Short Introduction which appeared earlier this year.

[1] England and Australia compete biennially for a small urn that is believed to contain the ashes of a wooden bail. Following the latter’s victory in 1832, a British newspaper published an ‘obituary’ of English cricket which declared that its ‘body will be cremated and the ashes taken to Australia’.

[2] R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.

[3] Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 US ___ (2022), overruling both Roe v Wade  410 US 113 (1973) and Planned Parenthood v Casey 505 US 833 (1992).

[4] See Raymond Wacks, ‘Judges and Injustice’ (1984) 101 South African Law Journal 266;  Raymond Wacks, ‘Judging Judges’ (1984) 101 South African Law Journal 295 (in reply to J Dugard, ‘Should Judges Resign? – A Reply to Professor Wacks’’(1984) 101 South African Law Journal 286); Raymond Wacks, ‘Judges and Moral Responsibility’ in Wojciech Sadurski (ed), Ethical Dimensions of Legal Theory, Poznan Studies in the Philosophy of the Sciences and Humanities (Amsterdam, Rodopi, 1991) 111.; Raymond Wacks, ‘Law’s Umpire: Judges, Truth, and Moral Accountability’ in Peter Koller and André-Jean Arnaud (eds), Law, Justice, and Culture (Stuttgart, Franz Steiner Verlag, 1998). See too David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford, Clarendon Press, 1991).

[5] The Economist, 23 January 2020, ‘Poland’s ruling party should stop nobbling judges’. See Martin Krygier, ‘The Challenge of Institutionalisation: Post-Communist “Transitions”, Populism and the Rule of Law’ (2019) 15 European Constitutional Law Review 544.

[6] The case is made most powerfully by Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) Yale Law Journal 1346. His preference for parliamentary rather than judicial decision-making would appear logically to commit him to supporting the Israeli government’s proposals. The rationale for JR is, of course, equally robustly, advanced by Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (New York, Oxford University Press, 1996). I consider these competing contentions in more detail in Raymond Wacks, The Rule of Law Under Fire? (Oxford: Hart Publishing, 2021), 62-65.

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).

Something is happening in Israel today that fills its citizens with trepidation

By Stephen Schulman

I sleep ill at night, my slumber is restless and I do not breathe easy. I sleep ill because I am worried. I worry about my beloved country. I worry about our children and our grandchildren. I worry for their future here and how this country will be, for what I see at the present leaves me deeply unsettled.

Over half a century ago, I left South Africa the land of my birth and came to live in Israel. Like many of my friends and fellow graduates of a Zionist youth movement, who came too, I was imbued with an idealism to help contribute to a Jewish state that was both liberal and democratic. After completing our studies, we left our families and came alone. We were not cockeyed optimists. We were perfectly aware that Israel was a young state born in especially difficult circumstances, coping with many problems. There was much to be done, but we wished to do our part. With the passing of time, we worked in our professions, did our army service, married and raised families. We are part of the country and feel pride in its achievements. However, something has changed, bad things have been happening and I am filled with trepidation.

”Ashkenazim may you burn in hell.”  “Not for nothing did six million die. I’m proud.  If only six million more would burn.”  Words that would make Goebbels, Streicher and all their despicable followers, knowing that their vicious antisemitism was alive and flourishing, beam with happiness and satisfaction. If anyone in his/her naiveté thinks that these foul utterances issued from the mouth of a most extreme neo-Nazi, they err gravely.  They were said by forty-nine-year-old Yitzhak Zarka, a Jew from Ma’ale Efrayim, a settlement in the State of Israel, who was relating to the anti-judicial overhaul protestors.

Zarka, in spewing his vicious and venomous hatred desecrates the memory of the six million martyrs, man, woman and child who were murdered in the Holocaust. It also deeply insults and defiles all the Holocaust survivors both from Europe and the Arab countries that fell under the yoke of Nazism. It insults the memory of my late father-in-law Meir who lost his entire family and my late mother-in- law Tsilla who while surviving the war, lost her father and a brother. It insults the memory of my dear friends: Yehuda whose family was persecuted in Libya and Uri who hailed from Iraq.

This individual’s sick jubilation over the Holocaust and his fervent desire for another one to occur to all the Jews of Ashkenzi (European) descent living in Israel and in the Diaspora does not suffice. In a feverish mind stoked and warped by a consuming and blind hatred, all logic and decency has long been defenestrated. In a twisted, perverted line of thought defying all comprehension, he curses them, for in his eyes, not only were the six million who perished deserving victims but they and all their descendants are of the same ilk as their murderers.

In any enlightened country, and as is happening in Europe, such pronouncements are considered a clear contravention of the law and would arouse public opprobrium. It goes without saying that the speaker or writer of them would be speedily hauled into court and prosecuted.

The Holocaust and the persecution and expulsion of Jews from the Arab countries is seared in Israel’s conscience. Zarka’s vituperative statement is clearly a criminal offense and it would be expected that the arm of the law swiftly reach out for him. It would be expected that he be publicly condemned by members of the government for his harmful statements.

Shockingly and shamefully, not so in present day Israel!

We have yet to hear of his prosecution, and silence reigns supreme. It is a silence both disgraceful and ominous and the reason is quite simple. Zarka is not just (like most of us) another common garden variety citizen. Zarka is a member of the Likud Party. Zarka is not a simple party member either. Zarka is a  faithful, veteran Likud activist who is highly esteemed by fellow members and greatly valued for his efficacy in garnering votes mainly among his fellow Sephardic (Jews who have come mainly from the Arab countries) citizens . Zarka is even more highly esteemed by quite a few Likud ministers in the present government for giving them his vital support in obtaining them a high placing in party elections. There is a well known adage: “Never bite the hand that feeds you votes!” Therefore this influential gentleman must be assiduously cultivated, his affection and loyalty secured and scrupulous care taken not antagonize him and earn his enmity. So, when he has a celebration like a birthday party, there is always an impressive bevy of fawning Likud party notables, including the Speaker of the Knesset and assorted ministers, bearing gifts, bowing and scraping, waiting patiently in the long line to congratulate, flatter, embrace and be photographed with the man of the moment.  Not for nothing is there a picture of him hugging and bussing our prime minister.

Bibi Netanyahu in his usual spin declared that the miscreant would be expelled from the party – which Zarka’s wife promptly denied and said would never happen. And, as to be expected, on the morn, he mumbled some lame excuse and claimed his grandfather was a Holocaust survivor. What difference does that make?

I sleep ill for there is a bad smell in the air. It is the stench of moral and ethical putrefaction. It is the stench caused by politicians, choosing to turn a blind eye and prefer self interest over moral obligation to their citizens. It is amoral Realpolitik at its ugliest. Not one Likud member of the Knesset, not one single minister from the same party, to their everlasting shame, has opened his/her mouth. It is not only the silence of assent. It is the silence that condones an egregious act that deeply offends so many citizens and harms the country’s social cohesion. It is the official stamp of silence that makes such behaviour the norm.

To add insult to injury, there are many of the party faithful who see no wrong, view it as a trifling incident and justify such behaviour. “I do not remember any other party that expelled any of its members for excessive anger,” was one mealy mouthed pronouncement.

Growing up in South Africa, antisemitism was par for the course and I experienced it in various ways. Nevertheless, never in my darkest dreams did I think that I would have to live in Israel in July 2023 to encounter it in its vilest and most toxic form and see its purveyor speak with impunity. Never in my darkest dreams, did I think that I would see such abominable behaviour accepted with equanimity by members of his party. Never did I imagine that not one minister in the coalition government (and our small country is gifted with 31 of them!), to their everlasting shame, would open his/her mouth in condemnation and disassociate him/her self from the speaker.

South Africa has Julius Malema, notorious for his abhorrent racism. It appears that we might have his doppelganger living here. How many of his repulsive clones walk around in our country?

Tragically, this sick behaviour is not an aberration. It is symptomatic of this culture of public and political discourse that is now eroding the very foundations of our society and has become a norm. Civility, politeness, mutual respect and common decency have long gone the way of the dinosaurs with rudeness, vulgarity, intolerance, insults and disrespect superseding them. Verbal violence: bullying, threats and intimidation is becoming commonplace.

Is this an exaggeration? Look no further than the floor of the Knesset and the behaviour of certain ministers. A few days ago, our Minister of Transport’s car was stopped at gates of an army base by a security guard. As she felt that her entrance was unnecessarily delayed and her pride hurt, in her arrogance and rage she ordered her driver to proceed regardless. Ignoring his pleas that he would run over personnel, she repeatedly shouted at him:

“Drive, drive, drive!”

With such an example it is no wonder that violence is no longer limited to being verbal and has become part and parcel of daily life.

My sleep is troubled. This is not the country I envisaged and I worry for the quality of its future. It took many generations to build but is being rapidly destroyed. What shall it be like for our grandchildren?

About the writer:

Stephen Schulman is a graduate of the South African Jewish socialist youth movement Habonim, who immigrated to Israel in 1969 and retired in 2012 after over 40 years of English teaching. He was for many years a senior examiner for the English matriculation and co-authored two English textbooks for the upper grades in high school. Now happily retired, he spends his time between his family, his hobbies and reading to try to catch up on his ignorance.

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).

Following Israelis expressing their anxieties within society today from protest to poetry, lay of the Land  publishes another in our ongoing series. From fractures in Israel society to a sharp rise in terrorism, the son of Holocaust survivors reflects through this poem of living on the edge. Even something as mundane as commuting on a bus, becomes in Jerusalem today an existential experience.
Is it paranoia or reality?
David E. Kaplan  Lay of the Land Editor

UNTIL 120 – A REALITY CHECK

By Solly Kaplinski

Every morning
I normally take the 6.57 Egged bus
to the light rail station in French Hill
The train is usually packed
but invariably, someone stands up for me
a sort of back handed compliment:
respect for the grey hair and
me coming to terms with my ageing self
– and my impending mortality
Until 120, I tell myself

The 70 faces are all present and accounted for
women burying their faces in the Shacharit prayers
lips moving furiously
young soldiers and border police
high spirited and seemingly deep in superficial conversation
eyes darting in all directions
reluctant children going to school glued to their cellphones
vatikim with empty agalot off to the shuk
Our cousins are also on board conversing animatedly
and a tower of babel cacophony of tourist and worker languages

Such a normal slice of life – like anywhere else in the world
the rush hour for those who open up the morning.
But my usual paranoid self gets the better of me – as always…
I am a child of Holocaust survivors you know
and I have lived with exploding buses and burnt-out restaurants
and Jew butchers on the loose
And I cast suspicious eyes on my fellow travelers
looking for anything out of the ordinary:
someone in disguise
an over-stuffed duffel bag
a hand in a bulging pocket or
holding a scrunched-up Rami Levi sakit
ready for coiled action

I step out into the sunshine and blue sky
at the Hechalutz station
And there’s a spring in my walk
I’m almost at the office

Until 120, I tell myself

_______________________________________

Shacharit: early morning prayers
Vatikim – seniors
Agalot – small shopping trollies
Rami Levi – a discount supermarket chain
Sakit – a plastic shopping bag
Hechalutz – pioneer

About the writer:

Solly Kaplinski headed up Jewish Day Schools in Cape Town, Toronto and Vancouver before making Aliyah with Arleen almost 25 years ago. His professional life in Israel is bookended by working at Yad Vashem and then at the American Jewish Joint Distribution Committee (JDC). Solly is also the author of the novella A World of Pain: A Redemptive Parable? His three daughters, their spouses and an egalitarian minyan of grandchildren all live in 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).

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.

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.

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.

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.

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).

Disentangling the toxic from merit-based judicial elitism

By Lawrence Nowosenetz

Bitter divisions are wracking Israeli society over the recently passed reasonableness legislation. This legislation is part of what was a planned package of judicial reforms by the coalition government. The reforms are touted as being necessary to restore democracy and return the will of the voters  to the elected representatives of the voters of Israel. The judges of the Supreme Court of Israel have been accused of overstepping the mark, entering politics, and making policy decisions based on their notions of reasonableness of government action and even legislation.

There is more than an undercurrent of criticism of the judges. Various commentators and politicians have stated that the  judiciary is undemocratic as it is unelected, and the judges are an elite and unrepresentative of a large part of  Israeli society.  The criticism of the selection of judges at present, is that the judges control this process and appoint their own peers. Thus a small self-appointed elite is making the important decisions and is out of touch with the wishes and needs of the electorate.  The reforms sought  are said  to aim at remedying this injustice and place the appointment of the judges in the hands of politicians and importantly the majority of whom are coalition government politicians. What can be wrong with this? Government by the people, for the people.

Sounds great except that it is not so simple. There are some gross distortions of social justice and violations of robust established principles of justice and good governance.  Misunderstandings about the role of the judiciary and gross disrespect for the rule of law also inform this most abused idea of elitism being at the root of all the evil within the judiciary.   

We are living in a populist era where the idea of a select few having a privileged position in society is looked upon with disfavour. We have become so obsessed with the notion of equality and our aversion of discrimination that we have lost sight of the moral basis of elitism, which is merit. We are all equal in worth and all men and women were created in the image of G-d. This is a noble immutable and just social principle except that it overlooks  one thing: We are not equal in ability. The more able are entitled to the fruits of their talents and contributions towards the welfare of society.  This entitlement is based on merit and not on patronage, popularity, political favour  or background.  Elitism is toxic when it is undeserved. George Orwell satirised this in his famous novel Animal Farm where the corrupt political doctrine “some are more equal than others” made a huge impact on  our thought.  We need to disentangle  toxic from  merit-based  elitism.      

Judges  are not public representatives and never were meant to be elected. Indeed popularity, particularly temporal political approval, is no criterion at all for fitness for judicial office. As eminent US law professor Allan Dershowitz has remarked,  the judiciary is actually anti-majoritarian. He has supported the existing  Israeli system of judicial selection as  better than the US system where the US Supreme Court is perceived as being politicised. To state the other side of the coin, judges are and should be  an elite. Peer recommendation plays a legitimate role. Senior jurists  are in the  best position to evaluate the competence and fitness of their colleagues. Successful societies  need top  jurists  who have earned their place by skill, character, experience, maturity, independence, and service to society.  Their loyalty is to the State and the protection of the rights of all that are affected by the laws. The State is not the same as the government. Political ideologies and governments come and go but the State binds every citizen to respect the founding values and rule of law. Judges are only answerable to the rule of law.    

We have elites in all walks of life and professions. Not only judges. We have engineers and scientists who design weapons and technology to protect  us from attack by our enemies.  There are skilled surgeons who save lives and improve the quality of our lives by their expert medical knowledge and dedication. There are hi-tech entrepreneurs who have gifted the world with innovations and  computer solutions which have brought huge investments, profits and tax revenues flowing to Israel.  They are the elites of the Start-Up Nation. None of these people were placed in their positions because they were popular or demographically representative. They succeeded on merit, and it made no difference what background they came from.   

Judges are in a similar expert category although they differ in that they are public officials. They constitute the third layer of government but unlike the two layers of the legislature and the executive, the judiciary is independent of them. That is the essence of the separation-of-powers doctrine. Each has separate spheres of power and competency. Judicial independence is not limited to independent decision making, but also to independence in their appointment from political influence.   This is an international standard protected by various declarations of the UN the EU and other international legal bodies.     

Judges are trained professionals and not ideologues or politicians. They are trained in concepts of rights, procedures, and legal theory. They gain  experience in real situations and have to distinguish conflicting claims of fact and law. They are required to uphold the rule of law.  They are required to make decisions which may conflict with their personal political convictions and have to distance themselves from  predisposed  personal political or social views.  The best of them have an independent outlook which does not change according to the governing politics of the day. Strong moral character and a commitment to basic justice defines them.    

Judicial review is a topic which has engaged lawyers since the landmark U.S. Supreme Court case of Marbury v Madison in the early 1800’s that established the principle of judicial review in the US, meaning that American courts enjoy the power to strike down laws and statutes that they find to violate the Constitution.

Law is work in progress. There is no definitive state of the art about the powers of courts to intervene in legislative and executive action. This is a balancing act within a county’s constitutional  framework.  Law develops slowly and sometimes painfully as do social values.  We  cannot however turn back the clock. The role of the judiciary not only in Israel but in other democratic jurisdictions is constantly evolving. The days of parliamentary supremacy are waning. We have seen  the slippery slope to political absolutism. It has led to the violations of basic rights, dictatorship and worse, as seen in Nazi Germany and Apartheid South Africa. Judges have to ensure the law meets the standards of successful, free, and prosperous democratic societies.  Paul Kruger, the President of the old Boer Republic of the Transvaal (ZAR) in South Africa at the turn of the twentieth century, called ‘judicial review’ the work of the devil. Neither he nor his republic lasted long. 

In countries with an English common law tradition, the courts have always had what is known as an inherent jurisdiction. This includes the power to fill lacunae or vacuums in the law. This includes  an interpretive function based on principles of justice.  Indeed Jewish values are based on  justice rather than  legal rules.  The Torah speaks of tzedek tzedek tirdof (justice  justice shall you pursue) rather than  mishpat mishpat tirdof  (law, law shall you pursue).  

The South African Constitution, internationally held in high regard, states in Section 173 :

 “The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process and to develop the common law taking into account the interests of justice.”  

The judges of the Supreme Court have few modern common law sources at its disposal as a result of the youth of the State of Israel and the repeal of English common law precedent in 1980. It therefore has to reach far wider and deeper in developing a system of law based on justice. Its inherent jurisdiction was recognised in the Israel Foundations of Law statute of 1980:

“Where a court facing a legal question requiring  decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel’s heritage”.  

The best lawyers  are required for  this daunting task. It requires wisdom, insight, a solid grasp of established legal norms and values, as well as the roots of Israel’s heritage. Surgeons are not second-guessed for their professional decisions unlike judges who are subjected to degrading and disparaging criticism. People are  often displeased with the outcome of a case and the immediate reaction is that the court is predisposed to favour or not favour a certain person or group. Few bother to examine the reasoning behind the decision.

It is up to the judiciary to interpret laws and apply the rule of law.  Their role is to fill legal gaps  (lacunae). Israel is replete with such gaps as it has no formal constitution,  a Bill of Rights, nor a developed common law. Judges thus have declaratory powers and in this respect they have the last say as to what the law is. This does not mean they are exercising judicial supremacy. They are rather custodians of the higher legal values which constitute the foundational legal  basis of the country. They do not generate legislation; they only exercise quality control and only decide on cases which are brought to them. The fact that they interpret laws and have declaratory powers about the cases before them does not make them dictators nor legislators. Anyone who reads the judicial decisions and  legal literature will soon realise that judges follow a policy of caution and a reluctance when  entering  the arena of government policy  and interfering with  existing laws.   Indeed in the past 30 years of judicial activism, there has  been    approximately one decision on average per year which has overturned  a law.  Judges make law as a last resort. Not a first resort.

The work of the Israel Supreme Court has been oversimplified and distorted in the public discourse raging in Israel. The loud voices proclaim that the court, an unelected elite, imposes its own agenda on government: It  obstructs  the will of the people.   These are at best misleading allegations and at worst shocking and discrediting misrepresentations about the conduct of the judiciary. Many of the loud  supporters of judicial reform possess no expert knowledge and experience in legal theory and practice. Seldom is there any  meaningful discussion of the offending judgments and there is no attempt to examine and analyse the reasoning of these activist  decisions. Some writers  have  made the absurd claim that  ‘reasonableness’ depends on the whim or subjective preference of the judge. This is grossly false. The very legal notion of ‘reasonableness’ is an objective test and stringently applied. Established jurisprudential criteria are carefully weighed up.  

Judges are highly disciplined professionals governed by strict ethical rules. They are restricted from public comment and cannot defend these accusations.  It subverts the social  order for the trust and confidence of the judiciary to be maligned. Criticism needs to be based on sound legal principles based on international best practice and not ad hominem attacks on the background and ethnicity of judges. This leads to tearing down the legitimacy of the courts and undermines respect for the justice system.  

It is time to value and respect the elites in the judiciary who are the guardians of our freedom and also the custodians of righteous  Jewish values according to the heritage of Israel.

About the writer

Born in Pretoria, Lawrence Nowosenetz obtained his BA at University of the Witwatersrand and LL.B at the University of South Africa. Admitted as an attorney and advocate in South Africa, he practiced at the Pretoria and Johannesburg Bar and worked as a human rights and labour lawyer at the Legal Resources Centre, a public interest law firm. Awarded a Fulbright Scholarship, Lawrence completed an internship in the USA and is presently a part-time Senior Commissioner at the Commission for Conciliation Mediation and Arbitration (CCMA) as well as a panelist at Tokiso Dispute Settlement – the largest private dispute resolution provider in South Africa. He has also served as an Acting Judge of the Hight Court, South Africa.

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).

You cannot hide it nor disguise it; Israel is facing a political crisis. It’s a crisis not only of the state but the state of its people. From a decidedly happy people, we are a people less than happy at the new direction of their country since January 2023 caused by Prime Minister Netanyahu’s governing coalition’s unpopular and controversial overhaul of its judicial system. This is causing anxiety.

Some have found an outlet of this anxiety by expressing  what they are feeling not only in protest and prose but also in poetry. Here below is a poem by a Lay of the Land contributor from Israel’s southernmost resort city of Eilat.

David Kaplan (editor)

HELPLESS

By Fonda Dubb, Eilat

Sometimes I feel  my heart beating fast
My breath breathing faster
How can I stand aside and say or do nothing
I loathe the words that are spoken
I loathe the division that is so split and divided
I loathe the violence
That like an inferno rips the country apart.
It affects me so deeply
That I have to write
In the hope that there will be a change of heart
That I can look in the mirror and say
I did something!!
So I feel forgiven
But just for a little while
It takes time to adjust ones thoughts to one of gratitude for the many things bestowed on me
Family and friends to brighten up our days
Eilat with its beauty of mountains and sea.
They are not in the conflict of helplessness that I experience
They are G-d given
The joy of nature, of flowers and trees, butterflies and bees
They too like the birds that sing and fly at night are a gift of life.
I count my blessings every day
To remind myself of the many gifts of life
So never to forget that the opposite of helplessness is light and joy in the miracles of life.
It is my fervent prayer that we all believe in gratitude
To change our thoughts to one of prayer and forgiveness to make a better world to see the ” other side of life”.
Just to be kind to one another is goodness itself
to rid the helplessness we feel and see
A belief that one hand will stretch out and touch each another
So we can cling to hope that will never be abandoned
But will forever with our gratitude
Be intertwined together
While we pray for peace in our blessed land.

*Feature picture: A protester lies in foliage during a demonstration in Jerusalem July 24, 2023 against PM Netanyahu and his governing coalition’s judicial overhaul. (photo: Ronen Zvulun/Reuters).

About the Poet:

A former South African who daringly in her own unique way challenged the apartheid regime by teaching dance and cooking in “Black areas” in the Eastern Cape and Northern Transvaal, Fonda Dubb today resides in Eilat, Israel. (See article: The Right Moves). Her lifelong concern for others has led to her receiving numerous awards, most notably in 2012 the ‘Woman of the Year Miller Prize’ for volunteerism from the Mayor of Eilat.

In recent times, Fonda has taken to writing poetry drawing from her experiences both in South Africa and Israel, her values, as well as the natural beauty of Eilat. Her guiding star she says, is “a yellowing piece of paper” that hung in the consulting rooms of her late pathologist cousin, Dr. Johnathan Gluckman, who exposed the truth with his post-mortem of the famed Black anti-apartheid activist, Steve Biko, who met his untimely death in police custody. The words on that piece of paper read: “Good men have only to remain silent for evil to prevail”. These words says Fonda, “always stuck with me and influenced my way of thinking.”

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).