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PDF FormatFor the past several years, members of Israel’s Haredi community have been among the most vocal critics of judicial activism—the Supreme Court’s habit of overturning government decisions that violate no written law, either because they conflict with rights the court itself has created, or simply because the justices consider them unreasonable.1 Not surprisingly, the chief concern of the Haredi leadership and press has been the court’s activist incursions into religion-state issues. On February 9 of this year, upset by a recent spate of rulings altering the long-standing “status quo” agreement on religious issues,2 Haredi leaders held a press conference at which they announced plans for a massive demonstration in Jerusalem.3
Almost instantaneously, the cry was raised among politicians, the legal establishment, the universities and the media that, as Meretz leader Yossi Sarid put it, “Israeli democracy is in danger.”4 A counter-demonstration dubbed “Defending Democracy” was organized by groups including the radical-Left Meretz party, the United Kibbutz Movement and the Constitution for Israel Movement, to be held inJerusalem’s Sacher Park, physically situated between the location of the planned Haredi demonstration and the Supreme Court building—symbolizing the intention of the demonstrators to “defend” the court from its religious detractors.
The ensuing controversy, which culminated with the competing demonstrations on February 14, proved that Israeli democracy was indeed in danger. But the peril came not from the anti-court demonstration, at which 250,000 participants peacefully assembled in prayer. Rather, the danger came from the lengths to which Israeli opinionmakers went to defend the deeply entrenched taboo against criticism of the court. In the name of protecting the court and the rule of law, the very people who should have served as the pillars of Israeli democracy sought instead to trample the fundamental civil liberties on which this democracy rests.
It must be acknowledged that certain Haredi leaders did everything possible to undermine their cause. At a press conference on February 9, former MKs Menahem Porush and Moshe Gafni called the Supreme Court’s decisions “anti-Semitic,”5 while R. Ovadia Yosef, spiritual leader of the Sephardic-religious Shas party, described the justices as “wicked, stubborn and rebellious,” “empty-headed and reckless” and “the cause of all the world’s torments.”6 His son, R. David Yosef, went so far as to call Supreme Court President Barak “the enemy of the Jews,” a reference to Haman, the arch-persecutor of the Jews in the book of Esther, whom Jewish tradition considers a descendant of the Amalekites—the ancient enemies whom Jews are obligated by biblical injunction to kill.7 In a democracy, though, even the most deplorable language does not usually justify calling for criminal sanctions. And since the most unexceptionable Haredi criticisms of the court have been met in the past with equally vocal demands for indictments, it is hard to believe that it was solely the unusual vitriol of these attacks that prompted politicians, journalists and good-government groups to loudly demand legal action.
Some of the statements may actually have constituted incitement in the legal sense—such as the comparison of Barak to Haman. Had the response to the demonstration been limited to the demand that the attorney-general consider bringing charges against those individuals potentially guilty of this crime, it might have been understandable. But rather than focusing on the possibly illegitimate speech of certain individuals, the principal object of the tidal wave of criticism was the demonstration itself—based on the claim that even peaceful protest against the decisions of Israel’s Supreme Court undermined the “rule of law” and threatened democracy. Thus President Ezer Weizman condemned the demonstration’s organizers on the grounds that “the goal [of the attacks] is to undermine the rule of law.”8 Justice Minister Tzahi Hanegbi similarly branded the Haredi demonstration “a protest against the legitimacy of the rule of law in Israel,” and prophesied blackly that it “is likely to cause a deterioration into escalation and violence.”9 Labor Party leader Ehud Barak opined that “the Haredi demonstration is a threat to democracy”10 and “a sign of a severe weakening in respect for democracy and the law,”11 while Knesset Speaker Dan Tichon charged that the attacks on the court “could turn Israel into a lawless country and lead to anarchy.”12
The universities, which might have been expected to defend free speech, outdid even the politicians in their intolerance for the expression of the Haredi viewpoint. The administration of Hebrew University issued an official statement saying that “the attacks on the judicial system threaten basic democratic life,”13 and Haifa University Law School’s Joseph Edrey declared apocalyptically: “We are talking about an existential threat to the State of Israel.”14
The media, to which democratic tradition assigns a leading role in championing free expression, offered similar fare, led by the country’s paper of record, Ha’aretz. One of the paper’s regular columnists, Tom Segev, called the Haredi assault “a battle against democratic government,”15 while his colleague Uzi Benziman charged that the Haredim were “attempting to shatter the very foundation upon which Israeli democracy stands.”16 Along the same lines, Ha’aretz legal commentator Ze’ev Segal, of Tel Aviv University’s law faculty, depicted the demonstration as “a war against the rule of law.”17
All these statements are based on one astonishing argument: That a legal demonstration—the quintessential tool of democratic dissent—can be essentially undemocratic. Yet this argument carried a near-total consensus. Of the hundreds of journalists, politicians, jurists, academics and other public figures whose statements were reported in the media in the days before the demonstrations, almost none were willing to defend the right of the Haredim to hold their protest. The rare exceptions, like Communications Minister Limor Livnat, offered statements that under ordinary circumstances would be considered cliché: “In a democratic regime, everyone has the right to criticize, demonstrate or protest against any institution, even the Supreme Court.”18
A variant of the argument that the Haredi demonstration was detrimental to the rule of law stemmed from the equating of a peaceful mass protest with incitement to violence. This view was enunciated most clearly by Justice Minister Tzahi Hanegbi, who declared: “The initiative to convene tens of thousands of citizens to challenge legal verdicts endangers the safety of Israeli judges and the cohesion of the entire Israeli society.”19
The claim that harsh rhetoric against the judicial system is inherently threatening to judges’ lives, and must therefore be suppressed, is nothing new in Israeli discourse. But the idea that peaceful demonstrations can alsobe life-threatening is new, and marks an ominous logical extension of the previous illogic—one made all the more disturbing by the fact that the fear of Haredi violence was based not on any actual actions taken by the Haredi leaders or their followers, but rather on the protective steps taken by the police. Thus Ha’aretz columnist Yoel Marcus, noting that “a single demonstration turn[ed] the Supreme Court into an armed fortress with snipers on its rooftop and contingency plans for helicopter rescues,” reasoned that since such a heavy guard had been posted, it must also have been necessary: “It’s sickening that our Supreme Court justices need bodyguards to protect them, as do Sicily’s judges, to protect them from the Mafia, or Colombia’s, to protect them from drug barons.”20 Marcus neglected to note that in Israel, unlike Sicily or Colombia, no judge has ever been murdered or kidnapped, by Haredim or anyone else.21 Marcus’ colleague, Zvi Bar’el, reached the identical conclusion from the police decision to assign guards to the justices’ homes: “Immediately there comes to mind judges in places like Argentina and Chile, Nicaragua and El Salvador, some of whom still walk about in terror with a permanent escort of scowling bodyguards, while others have been murdered or have resigned in order to protect their families.”22
Obviously, the fact that no judge has been murdered in Israel does not exempt the security forces from taking precautionary steps. But if public debate were to be halted every time the police decide such measures might be necessary, there could never be debate on any highly charged political issue—from diplomatic agreements with the Palestinians to the privatization of state-owned companies. The Supreme Court, by dint of its activism, now makes decisions in controversial matters that used to be handled by the Knesset and the government. The fact that the security forces have modified their approach to protecting the justices in the wake of this change cannot be used as an argument for prohibiting protest against the court’s new role—any more than the stepped-up security for government ministers following the Wye agreement would have justified banning demonstrations against the accord.
