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Monday, February 24, 2014

Deja vu all over again?

It's been 15 years since Jerusalem's largest demonstration ever - the official reports said 250,000 but organizers at the time claimed 600,000 attended (yes, I was there). It was a demonstration against what the Haredi community saw as the tyranny of Israel's Supreme Court. What the demonstration was about should sound familiar to you.
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.
And yes, that's the origin of the current situation.... 

Next Tuesday, we will see a 1999 redux. Rabbi Ahron Leib Shteinman has given his approval for a massive demonstration to take place in Jerusalem. It's a demonstration against the drafting of yeshiva students.
The event will take place on Tuesday, 2 Adar 2 5774 to act publically against what HaGaon HaRav Aaron Yehuda Leib Shteinman Shlita called “an awful Chilul Hashem”, in his comments after hearing the Shaked Committee approved criminal sanctions.

Rav Shteinman’s immediate response was the atzeres is now required to act in the face of the horrific Chilul Hashem and he seems uninterested in the other factors, such as how the event will play out in the media.

On Sunday morning 23 Adar I it was reported that MK Moshe Gafne was working to persuade the Gadol Hador against the atzeres for this very reason, for Gafne is fearful the anti-chareidi media will portray it most unfavorably.
Back to 1999?

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