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:
Read the extract below and then think through the following questions:
Extract: On Herzl, his ideals and society: Address by Avraham Burg:
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 * 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; |
PRINT 
0