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).