Insight into current events: Activity File
Dateline: 16th September 1996 - 3 Tishrei 5757
One State - One People? One Dream?
BaGaTZ vs BaDaTZ
(Israel Civil Jurisdiction vs Rabbinical Jurisdiction)
Issues behind the Incitement against Supreme Court President,
Justice Barak and the Israel Supreme Court
Introduction
Whatever your political or religious sympathies, you may well be wondering
how the latest crisis in the perennial controversy over the Jewish character
of the State of Israel will be resolved!
While the US and France, like many other countries, have separated Religion
and State, Israel - like Britain - has not. The prime motivation behind
this arrangement in 1948 was unity and control - but the outcomes have
been far from unifying.
Below you will find some background and some questions for further review.
We would like to hear from you - your reactions, your empathies, your
hopes for possibilities of dialogue.
Please note our links to various articles which we feel provide interesting
insights into the nature of the crisis and the overall picture; where
copyright permits, we include quotations from articles.
1. Situation Review
The ultra-orthodox newspaper, recently "Hashavua" carried an
article which virulently attacked Justice Barak, deplored a lack of Jewish
character in Supreme Court legislation, claimed the ultra-orthodox were
being discriminated against by the Court's rulings - and threatened Justice
Barak himself. The violent language and direction of the incitement led
to a public outcry. The situation continues to be explosive.
2. Exercise
 Notes:
- 1. Educators, please read to the end before using the exercise!
- 2. If working in groups, we suggest using a whip round for the first
question, discussing the second together and small group discussions
for the last two questions, to be reviewed together.
- 3. Please read the extract first!
Please read the extract below and then think through the following questions:
- How do you feel about all of the following? Choose from:
a-approve; b-indifferent; c-don't approve.
- i. Shabbat [Saturday, Sabbath] is the Israeli day of rest.
- ii. Shabbat observance is an individual, not a public issue.
- iii. Communities have a right to protect their lifestyle.
- iv. If the majority is inconvenienced, the minority must cede
- Do you foresee any contradictions arising from your choices or preferences?
- What is your "red line" between free speech and incitement?
- The Declaration of Independence refers to the Jewish character of
the State.
- How should the Supreme Court and the Ultra-orthodox interpret this
to ensure peaceful relations?
- How would you personally interpret this - in the context of Shabbat,
for example?
- 5] What is your dream of "one state - one nation" for Israel?
Extract:
On Herzl, his ideals and society: Address by Avraham Burg:
'The supreme challenge for the morrow of a Zionism for rescueing distressed
Jews was defined by the Zionist visionary himself; here, by his tomb,
let us remember his words: "I believe that even when we will have
achieved a land of our own, Zionism will not cease to be an ideal, for
in Zionism as I perceive it, incorporates not only the aspiration to
a plot of land legally promised to our wretched people, but also the
aspiration to ethical and spiritual integrity."
[...]
A very great charge has been placed upon us within Israeli society
here and within Jewish society per se - that of creating peace and harmony
within the fold. We have no soul save that extra one which is capable
of bridging our differences: between Orthodox and Reform, between traditional-Conservative
and secularists, between rehabilitators of religion and its fanatics;
between factions and streams, between ideas and ethnic groups.
Nearby, in this same section where lies the tomb of the visionary of
the state, are two more tombs. One is that of the late Betar leader
whose reburial in Israel marks the zenith of the culture of debate;
the other is the resting place of the late Prime Minister, felled by
bullets which epitomize the depths of adversarial dissociation and alienation.
It is therefore significant that from here that we shall send out a
message of strength and spirit to the eternal people. United, no-one
shall put us asunder; united, no goal is unattainable.'
Address by Avraham Burg,
Chairman of the Zionist Executive,
and the Jewish Agency for Israel, at Mount Herzl, Jerusalem,
Ceremonial Opening of the Zionist General Council,
in the presence of The President of the State of Israel,
Monday 17th June 1996 - Rosh Hodesh 1 Tammuz 5756
3. Reactions
When the media latched onto the "Hashavua" article, shock was
felt in many quarters and fears were voiced about the violent trend in
society, with echoes of the atmosphere surrounding the Rabin assassination.
* While government officials have been firm but careful in their definition
of the mandate of the courts, there has also been defense of the freedom
of speech.
* Within the larger public there has been much sloganizing about the
lack of respect for rule of law within the right-wing and finger-pointing
at the religious in general, as well as concern that the tone of public
debate has not moderated over the past year.
This is what Prime Minister Binyamin Netanyahu had to say:
The Prime Minister expressed his great appreciation for Justice Barak,
who is, "one of Israel's greatest lawyers."
He also said that it is the fundamental platform of the legal system
in Israel. "We are a nation of law, and the role of the Supreme Court
is to be the cornerstone for maintaining the rule of law in the nation,
and we cannot allow this important and central institution in the existance
of the nation, to be harmed."
He added that, "we must act with respect to both the institution
of the Supreme Court, and to the person who stands at its head."
[courtesy: Israel Government Press Office, 28 August 1996]
This is what the Cabinet meeting minutes recorded:
The Prime Minister wished the committee success and said in this regard
that, "the attacks and threats on the Supreme Court and Justice Barak
are deplorable and illegitimate," and requested the Public Security
Minister to deal vigorously with these threats, which are dangerous and
must be uprooted. While there can be legitimate debate regarding the authority
of the Supreme Court vis-a-vis the legislative authority, it is absolutely
forbidden for this debate to deviate from the framework of the law and
the culture of government.
The Cabinet condemns the attacks and threats on the Supreme Court and
the President of the Supreme Court which have been made in recent weeks.
There is a danger hidden in these attacks which could undermine the confidence
of the public -- or part of it -- in the judicial authority as a whole,
and the Supreme Court in particular. Public confidence in the independence
of the judicial authority, with the Supreme Court at its head, is one
of the main principles of the existence of the rule of law and the preservation
of a democratic regime in the State of Israel.
The Supreme Court has exercised judicial review over governmental decisions
since the foundation of the state. Over the years, there were various
segments of the public which complained against rulings of the Supreme
Court, but the Supreme Court always saw fit to operate wisely and strongly
to establish the rule of law and preserve civil rights in Israeli society.
Even if a particular decision of the Supreme Court was not to the liking
of some segment of the public, this does not negate the obligation to
respect the law and respect the court's rulings. The test of the existence
of the rule of law is in honoring the rulings, even if they reject the
claims of a particular litigant.
Supreme Court rulings are, of course, subject to substantive public criticism,
however there is no place to convert this substantive criticism into an
attack on the judicial authority, and those dependent on it. Such attacks
are liable to cause the democratic regime in Israel to be seriously harmed.
Therefore, the government appeals to the entire public to act with restraint,
respect the law and court rulings, hold substantive dialogue on public
issues, and refrain from attacks and threats on the Supreme Court and
its judges.
Courtesy, Israel Government Press Office, 2 September 1996
4. Precedents
Much of Israeli Civil Law is built around British Mandate legislation,
some on Ottoman legislation, while on some issues it refers to Jewish
traditions, and for others - creates its own body of case law. The body
of Civil Law in Israel is growing with the rulings of the Supreme Court.
Rabbinical [also Moslem religious] courts are authorized to deal with
all issues of personal status.
There is no written Constitution in Israel, although Basic Laws have
special status. Within the Knesset the Israeli Parliament, there are many
lobbies - religious, nationalist, secular and others - promoting and amending
laws on all these issues. Thus, legislation is expected to be affected
by the increased representation of religious parties in the Knesset after
the 1996 elections. The Supreme Court can only rule on public issues within
the legislative framework created by the Knesset. Its right to do so,
and thus act as a constitutional court, has also been a highly disputed
issue, even under the previous government.
The status of the Supreme Court as the Final Court of Appeal, Supreme
Court of Justice and - de facto - as a controversial constitutional court,
places it at the center of numerous controversies:
* It ruled on "Who is a Jew?" in several cases, including
* It has ruled on the Basic Law of freedom and freedom of occupation
- on the right to import non-kosher meat into Israel.
* It recently ruled against R. Yitzhak Levy, the new Minister of Transport,
who ordered Bar Ilan St. - a main N. Jerusalem route through an ultra-orthodox
neighborhood - to be closed on Shabbat, with a "give cause"
ruling;
it similarly issued a "give cause" ruling to the opponents of
the closure.
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