A shameful stain on Menachem Begin’s legacy

Every lawyer knows that the presentation of a court case is as vitally important to the judicial outcome as are the facts delineated in the case. That is equally valid for positions argued in the court of public opinion, especially when powerful basic changes are proposed to revolutionize the current judicial system – the one non-politicized part of Israeli society. Outstanding public leaders should search to find the common denominator between opposing views, to create a social consensus that will not rip apart the fabric of society while still allowing changes to occur. The process of how change is implemented is as important as the end result – if you want to prevent chaos.

The volatile battle over judicial reform now taking place in the streets and the media as well as in the Knesset will become a case study for how Not to implement important changes to the judicial system. Thousands are protesting in the streets because they feel their voices are being ignored in the Knesset; intense feelings of powerlessness are fueling the street protests across the country. A very bare Knesset minority is acting as if they have an overwhelming majority to turn the previous system upside down, and fast. We all should remember that between 5-7 electoral mandates are determined in each election by “swing” votes – one year they voted in the Seniors Party; the next election, those votes went elsewhere!

Consensus exists that some judicial reform is needed to make the judiciary more accountable to the wishes of citizens and legislators, to re-equilibrate the checks and balances of Israeli government. But most citizens believe that the judicial system should not be politicized, and left to the whims of Knesset politicians, who are accountable to the Prime Minister and other party leaders. The rights of minorities need to be protected from the political majority.

Alan Dershowitz recently quoted the late Justice Thurgood Marshall, who observed, “The freedom to speak and the freedom to hear are inseparable; They are two sides of the same coin.” That is not happening right now. The legislative ends gained do not justify the means used, especially at breakneck speed – because what is legislated can be unlegislated after the next election.

When Prime Minister Menachem Begin led the Likud to its first electoral victory in 1977, the country reeled from what was termed a revolution by both media and opposition political leaders. A trained lawyer, Begin understood that he had to transition the Israeli public to acceptance of the new Likud government, in order to prevent chaos. He listened and he heard and he acted. Begin, who personally stopped a civil war when the Altalena ship was bombed in 1947, brought Labor politicians Moshe Dayan and Yigal Yadin into his government – both familiar faces to calm the Israeli public. He wasn’t afraid of his political adversaries and he understood the government could have unity without uniformity

Begin was acutely sensitive to a Knesset majority possibly abusing its power and felt a duty to protect all citizens’ basic rights – after all he had experienced being in the minority for almost thirty years! He felt that the judiciary needed to be independent, as Begin truly believed in the Biblical precept written in Deuteronomy 17: “Judges and officers shall thee make in all thy gates – Thou shall not wrest judgement and thou shalt not respect persons.”

Legal and lasting change requires both due diligence and due process in the legislative Knesset where politicians are often here today and gone tomorrow. But neither the current coalition government – nor the opposition politicians – show any desire to create consensus. They both seem determined to use the Knesset as a boxing ring, waiting for a knockout punch. Rampaging judicial reform through the Knesset process demeans the meaning of “blind” justice.

Does the current coalition have no memory – after five elections in four years and a government voted in by a bare majority? The belief in total power does not justify losing all sense of boundaries – that kind of total power will lead to total corruption. Politicians in both the legislature and executive could easily overstep the bounds of legitimate power as has happened in the past. The extreme remarks and actions coming from Coalition MK’s don’t make me prefer politicians- both in the executive and legislature – rather than judges to be preferred to determine judicial policy!!

It is strange that Likud Knesset members so willingly betray Begin’s principles of social justice and the rule of law. A constructive national discussion on legal reform is overdue due to the court’s declared “constitutional revolution” in the 1990s.  President Herzog, along with many others have entreated all sides to find some consensus. But legislation proposed by the coalition would give the government complete control over the judicial system.

A case in point for not rushing legislation is recent. The law enabling Gilad Shalit’s release e for more than 1000 prisoners was quickly drafted, and only had a clause attached at the last minute to return prisoners back to jail – if they returned to terrorist activity. That clause has served a very useful tool in the fight against terror, enabling the arrest of returned prisoners engaging in terror.

Despite pressing security issues, the coalition is consumed by both total judicial revolution and the override clause, to enable Netanyahu and Deri to avoid the supervision of the court. This clause is being legislated when the prime minister is under current indictment and Shas MK Aryeh Deri barely avoided another jail sentence for financial misdemeanors. His sense of boundaries seems to have no awareness of legality. Deri was then rewarded with two ministries before taking over the Finance Ministry. Aryeh Deri, an ordained rabbi since 1976, is considered a communal teacher, a moral leader and a bearer of significant halachic and Talmudic knowledge. His behavior, whether financial or social should be above reproach. Netanyahu is on trial for three cases of pushing past acceptable legal boundaries.

Israel has a bad history with bare majority override clauses. Thirty years ago, the Oslo Accords were ratified in Sept 1993 in the Knesset by a bare majority – 61 votes for and 50 votes against. Despite 400,000 people protesting in the streets, a bare majority voted to approve the Accords, by fair means or foul. That decision by a Labor government permanently fractured Israeli society, a society that has grown even more discordant over time – especially after the Disengagement vote. So why in Heaven’s name would the current Knesset try to enact an override clause, again with a bare majority of 61 votes – to create even more chaos and fragmentation in Israeli society?

Societies and governments with judges controlled by politicians do not fare well as lasting democracies. That is especially true when the government refuses to slow its pace and engage in discussion aimed at genuine rather than cosmetic compromise; zealotry and not due process wins out. The boorish behavior and speech of Likud politicians in the last Knesset and continuing today is such that few Israelis want to entrust them with any sensitive issues – certainly not with control of major judicial reform.

“Ehrlichkeit” is a very evocative Yiddish word which denotes an upright, moral and honest person. Begin was considered an upright and ehrlich politician, never allowing personal benefit to taint his statecraft. Israel has been gifted by political leaders who never governed for personal gain. In days gone by, Jewish men dressed in black and white, bearded and wearing a black hat, betokened persons of unusual high moral character, known for stringent observance of mitzvot – like Rav Kahaneman, Rav Uziel, Rav Kook. The observer could be sure that such a person would not lie, and respect halachic and legal financial boundaries.

But the government is announcing to the electorate, the younger generation and indeed the world: Don’t bother to keep the law. Legal boundaries were created only for lesser folk, but not for people in public office. And because we have problems with the law and the judges, we will simply change the law and the way we select judges.

Is it any wonder that thousands have gone into the streets to protest? The government not only ignores them but calls them ”anarchists.” Menachem Begin would be horrified by the chaos rather than consensus that this government is peddling.