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PDF FormatThe most disturbing consequence of the virulent reaction to the Haredi demonstration, however, has been the almost universal unwillingness to consider the substance of complaints by the Haredim against the Supreme Court, or even to grant that there could be any substance in them worth considering. In effect, the country has been so wrapped up in trying to find ways to suspend the civil rights of Haredi Jews that it had no time to consider their grievances concerning judicial activism. The refusal to debate this issue is particularly striking given that the placing of limits on supreme courts, and the implications of judicial activism for democratic governance, are hot topics of debate throughout the Western world. And it is especially damaging to democracy because the question at stake, the compatibility of an activist Supreme Court with democratic theory, is such a fundamental one.
Rather than addressing the arguments raised by Haredi critics of the court, Israeli politicians, journalists, academics and jurists employed a number of methods for ducking them. At the heart of their approach was the assumption that the court’s behavior could not possibly be the real reason for the furor. Thus Ze’ev Segal of Tel Aviv University claimed that the court—which has been termed the most activist in the world by such internationally renowned legal scholars as Hebrew University’s Ruth Gavison and McGill University’s Irwin Cotler—is actually not activist at all. Thus in Segal’s opinion, “Recognizing the great judicial restraint that the High Court of Justice has imposed on itself … it can be assumed that what is happening now is preparation for the Jerusalem District Court’s upcoming verdict in the trial of MK Aryeh Der’i [head of the Shas party, on trial for bribe-taking, fraud and breach of trust].... The demonstration … is no more than preparation for what is likely to happen after the Deri verdict, if it is not to [the Haredi leadership’s] liking.”44 Having dismissed the claims of activism as fictitious, Segal is left with the explanation that a quarter of a million people showed up at a demonstration against the rulings of the Supreme Court to practice the response they might use against a possible verdict by a lower court against one man.45
Similarly, it was claimed that the Haredim had simply misunderstood the Supreme Court’s actions. Shahar Ilan, Ha’aretz’s religious affairs correspondent, wrote a story—billed by the paper as news rather than analysis or opinion—called “Three Haredi Fables About the Judges,” with a kicker stating: “Their [i.e., the Haredi] treatment of the court is not based on facts.”46
Do the Haredim have a legal leg to stand on in their arguments against the Barak Court? For the sake of illustration, let us examine one of the cases which supporters of the court have repeatedly touted as an example of its “restraint”: The ruling on yeshiva deferments. In December 1998, the court nixed a five-decades-old arrangement whereby the defense minister was empowered to decide how many deferrals of army service to grant to yeshiva students. The court gave the Knesset a one-year grace period in which to draft a law setting explicit policy for such deferrals, but said that in the absence of such a law, all such deferrals would have to be discontinued. The argument advanced by defenders of the court was that the Haredim could not really be upset over this issue, since the court had merely transferred the decision to the Knesset—which is what the Haredim say they want.47 Yet nothing could be further from the truth. The court explicitly ruled that the current system of draft deferrals was illegal. It permitted this arrangement to remain in force for another year to give the Knesset time to propose an alternative, but did not leave the Knesset the option of restoring the authority to the defense minister, which was the system that the Haredim, and the Knesset majority, had long preferred. In ruling that the deferral policy was patently unreasonable, the Supreme Court also created a public furor against the Haredi community, and thus applied pressure on the Knesset to draft a far more restrictive policy on the use of deferrals.
What further enraged the Haredim—a fact carefully ignored by those who cited this ruling as an example of judicial “restraint”—was that it was based on no law whatsoever, but only on the justices’ opinions. Indeed, the law in effect for Israel’s first five decades granted the defense minister the right to issue draft deferrals, and placed no limitations on their usage. Relying on this law, the court itself had three times previously rejected petitions on this issue. In 1970 and 1981, the court found the entire issue non-justiciable—that is, inappropriate for court decision—on the grounds that the reasonability of wholesale yeshiva deferments was a political rather than a legal question. In 1986, the court suddenly decided the issue was justiciable—though the applicable law had not changed in the interim—but that the defense minister’s policy was reasonable. In the subsequent twelve years, the law still did not change. Yet in their December 1998 ruling, the justices decided that another important change had occurred: A numerical one. In 1986, there were 17,017 yeshiva deferments, or 5.4 percent of that year’s eligible draftees. By 1998, there were 28,772 deferments, or 8 percent of eligible draftees. That quantitative change, Barak wrote, created a qualitative change that made it unreasonable to let the defense minister decide on his own.48
It is hard to imagine a flimsier legal argument than one which says that 5.4 percent and 8 percent are qualitatively different. But even if one accepts the court’s reasoning, the point is that this ruling, like many others the court has made on other issues, was essentially a value judgment by the justices rather than a decision based on law—and it is this to which the Haredim object. Opponents of judicial activism consider it dangerous to democracy precisely because they believe that value judgments of this sort should be made by a nation’s elected representatives rather than by an unelected court. In pretending that the court had merely deferred to the Knesset on the issue of draft deferrals, those who dismissed the Haredi claim against judicial activism were deliberately ducking this argument.49
By denying that the Haredim had a legitimate grievance, the Supreme Court’s apologists were not merely engaging in a harmless form of fantasy. They were effectively saying that no point of view other than their own could, or would, be taken seriously. Such a stance leaves few options for a minority that views its rights and prerogatives as being stripped away by a process it has little hope of influencing. Furthermore, it deprives the country as a whole of serious debate on an issue of fundamental importance to all Israelis: The role and powers that should be assigned to the various institutions of government.
In such an environment, where substantive arguments are suppressed or dismissed, it is also difficult for any sector of society to persuade others that it is genuinely aggrieved. This difficulty came across most strongly in a post-mortem on the Haredi demonstration by columnist Amnon Dankner. “There was clearly no vital, pressing and painful issue for the Haredi public here,” he wrote, “since if there had been, surely such a large Haredi public would have been drawn into violence.”50 Having refused to take the arguments by the Haredim seriously, Dankner in effect tells them that the only way to prove they have real grievances is by turning to violence. The implication that any group wishing to have its interests taken seriously must resort to force is the logical conclusion of a refusal to recognize opposing views when they are communicated peacefully. As most Israelis do not want to live in such a society, it is incumbent upon them to make sure that dissent is permitted, respected and encouraged.
The reaction to the Haredi demonstration shows that the taboo on criticizing the Supreme Court can no longer be tolerated as an evil necessary for preserving the rule of law. It is an evil that not only undermines the rule of law, but also a host of other democratic freedoms and attitudes. The Supreme Court, which has done so much to advance freedom of expression in Israel, must be allowed to be the object of such freedom as well.
Evelyn Gordon is a journalist who writes on legal affairs.
Notes
1. For a more detailed discussion of this issue, see articles in Azure 3, Winter 1998.
2. The “status quo” is the term for a long-standing agreement, reached by Ben-Gurion and representatives of the Orthodox Jewish community in Israel around the time of the state’s founding, to govern issues such as how marriage and divorce would be handled, as well as the public observance of the Sabbath and kashrut.
3. The demonstration had actually been announced in the Haredi press four days earlier. However, it was only after the press conference that it attracted widespread public attention.
4. Ma’ariv, February 13, 1999.
5. Ha’aretz, February 10, 1999.
6. Ha’aretz, February 12, 1999.
7. R. David Yosef claimed that he had referred to Barak as the “enemy of Judaism,” and not the “enemy of the Jews.”
8. Ha’aretz, February 11, 1999.
9. Yedi’ot Aharonot, February 15, 1999.
10. Yedi’ot Aharonot, February 15, 1999.
11. Yedi’ot Aharonot, February 14, 1999.
12. Ha’aretz, February 11, 1999. Other, milder examples include: Prime Minister Benjamin Netanyahu (“the court and its judges are the guarantors of the rule of law in Israel, so they must be honored and not attacked,” Ma’ariv, February 10, 1999); R. Yehuda Amital, head of the dovish religious Meimad party (“an injury to Israeli democracy,” Ma’ariv, February 15, 1999); R. Yehuda Gil’ad, another leading Meimad figure (“this is an attempt to undermine the character of democracy,” Ha’aretz, February 12, 1999); and the Constitution for Israel Movement, which published ads proclaiming “We will not permit the subordination of democracy!” and calling on people to attend the counter-demonstration “in defense of the rule of law,” Yedi’ot Aharonot, February 11, 1999.
13. Ha’aretz, February 14, 1999.
14. Ha’aretz, February 11, 1999.
15. Tom Segev, “The New Reactionary,” Ha’aretz, February 12, 1999, p. B12.
16. Uzi Benziman, “In the State of Vulgaria,” Ha’aretz, February 12, 1999, p. B2.
17. Ze’ev Segal, “The Court of Restraint and Forbearance,” Ha’aretz, February 11, 1999, p. B1. Other papers followed suit. Ma’ariv’s Zvi Gilat, for example, declared that “the rule of law will continue to be in danger.” Zvi Gilat, “The Rule of Law Will Continue To Be In Danger,” Ma’ariv, February 15, 1999, p. 7. Ma’ariv columnist Hemi Shalev termed the Haredi demonstration and criticism “a challenge… to the rule of law.” Hemi Shalev, “To the Honorable Chairman, For Your Eyes Only,” Ma’ariv, February 12, 1999, p. 3. Author Sefi Rachlevsky wrote about the demonstration as “a rabbinic revolt against the government.” Sefi Rachlevsky, “Guilt of the Rabbis, Silence of the Lambs,” Ma’ariv, February 15, 1999, p. 3.
18. Ma’ariv, February 13, 1999. Other examples are Minister without Portfolio Michael Eitan, also cited in Ma’ariv of February 13, 1999; Nahum Barnea,“The Three that Went Astray,” Yedi’ot Aharonot, February 14, 1999, p. 3; and Ran Kislev, “On the Bagatz Front,” Ha’aretz, February 14, 1999, p. 2.
19. Globes, February 15, 1999.
20. Yoel Marcus, “Weaning Them from the State,” Ha’aretz, February 16, 1999, p. B1.
21. There have been threats and occasional attacks against judges and courthouses in Israel, though usually not by Haredim.
22. Zvi Bar’el, “Judge, Don’t Discuss,” Ha’aretz, February 14, 1999, p. B1.
23. See, for instance, the ad in Ha’aretz on February 11, 1999.
24. Ha’aretz, February 14, 1999.
25. Ha’aretz, February 12, 1999.
26. Moshe Zak, “Dangerous Whirlpool,” Ma’ariv, February 15, 1999, p. 6.
27. Yedi’ot Aharonot, February 15, 1999.
28. Ma’ariv, February 12, 1999.
29. Ha’aretz, February 14, 1999.
30. Ha’aretz, February 15, 1999. The highly publicized remarks by Menahem Porush, one of the demonstration’s organizers, threatening “war” against the court if the anti-religious policy was not altered, were made not at the demonstration, but in response to questions from the press after the event.
31. Placards, however, were prominent at both demonstrations.
32. Ha’aretz, February 14, 1999.
33. Ha’aretz, February 15, 1999.
34. Ha’aretz, February 14, 1999. See also Yedi’ot Aharonot, February 14, 1999. The statement failed to explain how attacks on judicial activism threaten academic freedom.
35. Ha’aretz, February 15, 1999.
36. Ma’ariv, February 15, 1999.
37. Ha’aretz, February 15, 1999.
38. Shalom Yerushalmi, “A Show of Strength Before the Elections,” Ma’ariv, February 15, 1999, p. 2. Even the complete lack of violence at the Haredi demonstration was not accepted at face value by all commentators. Michal Capra of Ma’ariv wrote: “This was not a violent demonstration, yet there was nevertheless violence in this enormous human mass. A quarter of a million people of religious faith, of uncompromising devoutness, crowded, aware of its own strength, vengeful.” Michal Capra, “Dividing Up Jerusalem,” Ma’ariv, February 15, 1999, p. 4.
39. Ma’ariv, February 15, 1999.
40. These demands were largely fueled by the deep-seated belief, harbored by many Israelis, that anything done by the Haredim is by definition undemocratic—since, in the words of Nehemia Strasler, a Ha’aretz columnist, their “clear strategic goal is to exchange democracy for theocracy… and to turn modern Israel into the Iran of the ayatollahs.” Nehemia Strasler, “Haredim Without Borders,” Ha’aretz, February 14, 1999, p. B1. David Schwartz, the dean of Bar-Ilan’s law school, offered an interesting variation on this theme: Anything the Haredim do is by definition wrong because most of them do not serve in the army. “Is this a war the national religious, whose sons fall in our wars, should fight together with the Haredim?” he asked rhetorically. Ha’aretz, February 15, 1999. For other examples, see authors A.B. Yehoshua, Amoz Oz, S. Yizhar and David Grossman (“Most segments of Orthodox Judaism are not willing to live by the rules of democracy.” Yedi’ot Aharonot, February 14, 1999), and columnist Ben-Dror Yemini (“Experience shows that the Haredim don’t want balance and compromise… they want to replace the existing imbalance with total submission to themselves.” Ben-Dror Yemini, “No Partnership, No Compromise,” Ma’ariv, February 17, 1999, p. 7). These pre-existing anti-Haredi sentiments were fed by the anti-court demonstration, however, which was used to justify proposals that would normally be considered beyond the pale in a democratic society.
41. Ma’ariv, February 11, 1999.
42. Rachlevsky, “Guilt,” Ma’ariv, February 15, 1999, p. 3.
43. Bar’el, “Judge,” Ha’aretz, February 14, 1999, p. B1.
44. Ha’aretz, February 11, 1999.
45. The claim is made even more absurd by the fact that the rally was organized not by Shas, but by its Ashkenazic rivals.
46. Ilan posited that there were three “fables” on which Haredi anger at the court was based. These revolved around a Labor Court verdict permitting a kibbutz to open shops on the Sabbath; a contempt of court fine believed to have been imposed by the Supreme Court on the Orthodox rabbi who heads the Jerusalem religious council; and Court President Barak’s praise for a speech by Judge Oded Alyagon of the Beersheva Magistrate’s Court, which referred to “human lice” trying to take over the justice system. In all three cases, Ilan claimed that the Haredim had misinterpreted the verdict or action in question, and that their anger was consequently misplaced. Even assuming that Ilan correctly identified both the Haredi interpretation of these events and the “correct” one, however, he ignored the far more significant Supreme Court decisions that were really disturbing the Haredim: The overturning of the arrangement that enabled the defense minister to give draft deferments to yeshiva students, the curtailment of the authority of the rabbinical courts, and a series of decisions requiring religious councils to give seats to Reform and Conservative Jews. Shahar Ilan, “Three Haredi Fables About the Judges,” Ha’aretz, February 14, 1999, p. A3.
47. See, for instance, Segal, “Court of Restraint,” Ha’aretz, February 11, 1999, p. B1, and Asher Ma’oz, “Why They Fear the High Court,” Yedi’ot Aharonot, February 17, 1999, p. 7.
48. Ha’aretz, December 10, 1998.
49. So great was the desire to avoid addressing the substantive issue of the court’s judicial activism that a number of legal scholars actually asserted that it was the Haredim who favored such activism, and that the point of their demonstration was to get decisions transferred from the Knesset to the court—an exercise in doublethink that would have made George Orwell proud. “[The demonstration] is no more than an attempt to move the arena from the Knesset, where the Haredim have failed, to the Supreme Court,” declared Asher Ma’oz, a senior lecturer in law at Tel Aviv University. Ma’oz, “Why They Fear,” Yedi’ot Aharonot, February 17, 1999, p. 7. “What they are not capable of achieving in the Knesset… they are trying to achieve via terror against the judicial branch,” said his colleague at Tel Aviv Law School, Ze’ev Segal. Segal, “Court of Restraint,” Ha’aretz, February 11, 1999, p. B1. “The debate over the nature of the state must take place on the street and in the Knesset. Judges must be distanced from this debate,” declared Ha’aretz in an editorial explaining why the Haredi demands were “dangerous and disturbing.” Ha’aretz, February 14, 1999. Yet these arguments all somehow managed to ignore the plain meaning of what the Haredim had been saying: That the Knesset, rather than the Supreme Court, should be the ultimate arbiter of highly charged issues of religion and state.
50. Amnon Dankner, “The Big Chill,” Ma’ariv, February 15, 1999, p. 13.
