REUVEN BRENNER
The compounding impact of three events sheds light on Israel’s present upheaval concerning the allocation of power between its legislative and judicial branches.
One was the decision of David Ben-Gurion, Israel’s first prime minister, in 1948 exempting Ultra-Orthodox Jews from military service, which was supposedly to be of short duration but in fact is still in effect.
The second was the Supreme Court venturing into the constitutional void in matters of national security, particularly after the passing of a quasi-constitution (called Basic Laws) in 1992, inventing a fluid “reasonableness” doctrine. This doctrine drew on the legal philosophy of Aharon Barak, president of the Supreme Court between 1996 and 2005, that abstracted from realities of war and altered the meaning of a “Jewish state.”
Ben-Gurion believed that the exemption of Ultra-Orthodox, whose numbers stood then at 400, from serving in the army was justifiable, since the Holocaust had wiped out all the European Jewish centers of learning. Today though, there are 1.3 million Ultra-Orthodox (Israel’s population stands at 9.34 million), 60% under the age of 20, and 70,000 studying in this group’s institutions (called “yeshiva,” which means “sitting”).
It is a poor population, both men and women working few hours, living off grants and subsidies. The men are eternal students. The women take care of children: The group’s fertility rate is 6.6, though they work outside the home too. With such numbers, what started as a marginal issue becomes a serious political one as members of this group vote.
In 1970, a petitioner complained to the Supreme Court that by continuing to grant exemptions from military service to yeshiva students, the defense minister was abusing his power. The court dismissed the case, declaring that it was political and not for the court to decide.
‘Equality before laws’
In 1981, lawyer Yehuda Ressler went to court with the same complaint. The Supreme Court ruled as in 1970. In 1986, Ressler tried again and, with Justice Aharon Barak on the panel – who turned out to be the force behind the Supreme Court’s intense activism since 1992 – the court determined the matter to be “justiciable,” the legal term defining whether the courts could debate the issue to start with.
What are the implications of such a decision on the ground, a decision drawing on Barak’s view that the principle of “equality before laws” is above a collective right to security even in Israel?
If all young men must serve three years in the army, two issues related to the situation on the ground come up. How to execute such a decision when the number of Ultra-Orthodox students stands in the tens of thousands? Who would drag them from their studies and families to the army camps?
Such a decision was enforceable when the numbers were small. Today’s large numbers make it impossible, illustrating how the combination of entitlements and demography can become a political minefield.
The solution is political, not legal. The first role of the state is to protect against violence. Having young secular Israelis, women and men, serve years in the army while increasing numbers of heavily subsidized Ultra-Orthodox memorize and debate ancient texts is a recipe for diminished security and morale.
It’s a political problem. By gradually diminishing entitlements, the size of the Ultra-Orthodox community would shrink.
If the principle of “equality before laws” dominated all other concerns, it would run into another fact on the ground. Israel’s Arab population is 1.6 million, and is exempt from military service too (though 1% of its youth volunteer to serve).
By letting the Arab population continue to be exempt from obligation to serve, the court would acknowledge that certain issues are not justiciable and the notion of “equality before laws” is not the overruling principle when there are constant foreign and domestic threats of violence.
How did the Supreme Court reach the conclusion that matters of war and foreign policy are justiciable?
In his “Constitutional Revolution: Israel’s Basic Laws,” Barak states that “The principal organ of state that must pour content into the Basic Laws’ majestic generalities is … primarily the Supreme Court,” and concludes that “the rule of law, equality and human rights are the security of the state.”
Not quite. President Abraham Lincoln suspended habeas corpus during the American Civil War though it was unconstitutional; the US interned hundreds of thousands of Japanese-American citizens during World War II; and under McCarthyism during the Cold War, the US violated many cherished rights.
Although the US reversed those policies, Barak argues that wartimes in the US were rare, giving time to return to cherished democratic principles. Israel, however, having been continuously at war for its 75 years of existence, does not have this luxury.
Deviating from “democratic principles,” Barak speculates, would become established principles that even eventual peacetime governments would not reverse. Therefore, rights should be independent from realities on the ground, wars in particular.
This is how the debate in Israel turned into one about democracy vs tyranny – nothing to do with left, right and superficial “isms.”
Drawing on this same argument, and noting that the fundamental values of Judaism are “love of humanity, sanctity of life, social justice, doing what is good and just,” Barak erases all distinction between a “democratic” and a “Jewish state” – though the latter is the defining feature of the new state in Israel’s Declaration of Independence in 1948.
Barak reduces the meaning of the “Jewish state” to one distinguishing feature: “Jews have the right to immigrate there, and that their national experience is that of the state.”
Are young secular Israelis then assumed to sacrifice their lives for Jews in the Diaspora having the right to migrate to Israel when in the mood or when forced by circumstances?
The Supreme Court’s “reasonableness” doctrine, making it justiciable to overrule everything, including political and security matters and appointments, and altering the meaning of words in the name of ahistorical principles fitting peacetime, is key to Israel’s present domestic upheaval about the allocation of powers.
But maybe more: Ben-Gurion wanted Israel to become a nation like all others. Seventy-five years of warfare prevented this goal, though it shaped secular generations who have increasingly less in common with Jewish communities before World War II, with the Jewish Diaspora now, and with large segments of Israel’s observant – though not Ultra-Orthodox – population.
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