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March 23, 2007
Fears of a legal upheaval
Prof. worries new Israeli justice minister could reverse advances.
RHONDA SPIVAK
The recent appointment of Daniel Friedmann as Israeli minister
of justice is "regrettable," according to a professor
of law at the Hebrew University of Jerusalem.
Speaking to a group of the Canadian Friends of Hebrew University
in Winnipeg recently, Alon Harel said, "I am worried that Friedmann
may try to destroy the existing legal system. His background and
reputation is in private law. He really has little experience in
public law.
"When I grew up in Israel, there was a subtle understanding
that the people in charge of the country were secular leftist European
Jews, and the rest of the Israeli population had to accommodate
this. But this view of Israel has collapsed," said Harel, who
is currently on sabbatical, teaching ethics at the University of
Toronto.
He pointed out that Israel has been fragmented into five tribes,
"who have to co-exist with each other in an uncomfortable way"
– Palestinian Arabs, ultra-Orthodox Jews, right-wing settlers,
traditional Sephardi Jews and European secular Jews.
According to Harel, prior to 1992, the protection of individual
rights in Israel was primarily based on the jurisprudence of Israeli
courts. "My tribe, the secular European liberal tribe, is responsible
for the legal change in 1992, which established two basic laws that
have the ability to override statutes," he said. "The
first is the basic law which provides for freedom of human dignity
and liberty and the second is the basic law which provides for freedom
of occupation."
Harel said the Israeli legal system has been heavily influenced
by the model of Canada's Charter of Rights and Freedoms in taking
the approach that there are fundamental rights which can be justifiably
infringed in order to reasonably safeguard other core values fundamental
to society.
"The major difference between Israel's basic laws and the Canadian
Charter of Rights is that in Israel, there was no constitutional
moment," said Harel. "When the basic laws were passed
by the Knesset, there was no real debate, and a lot of people didn't
even know what was being done. That's why some in Israel called
it the quiet revolution. But then later on, we had people in Israel
saying that there was no legitimacy for these basic rights, as the
country as a whole didn't really decide on this."
Harel said that Friedmann "believes that the basic laws are
not really a constitution, because they were not adopted in the
right way." Harel fears that this attitude may undermine the
current legal system in Israel.
The one thing Harel hopes Israel does not borrow from the
Canadian Charter of Rights is the notwithstanding clause, which
allows a government to override Charter rights. "A notwithstanding
clause would not work in Israel, because the Knesset would not hesitate
to use it all the time," said Harel, citing several possible
examples.
Currently, the Israeli Supreme Court is dealing with the issue of
whether buses used by the ultra-Orthodox can require segregation,
with men seated at the front and women at the back. "The obvious
solution ... is for the bus to be divided between the left side
and the right side, so that neither men nor women are required to
sit at the back," said Harel. "Unfortunately, the ultra-Orthodox
rabbis have not accepted my solution."
The gay community in Israel has made inroads in advancing the rights
of same sex couples, said Harel. "Recently, the Israeli Supreme
Court has required the Ministry of Interior to register a gay couple
married in Canada as being married. The court said it would not
rule on the validity of the marriage, but took the formalistic view
that if a Canadian court granted a marriage certificate, it had
to be registered. The effect of this decision is that a gay couple
gets about 95 per cent of the rights that a straight couple gets,"
he noted.
In Harel's view, the rights of Palestinian Arabs living in Israel
have also been advanced significantly by the Israeli Supreme Court.
It ruled that the Jewish Agency was not able to refuse to sell land
to Israeli Arabs on the basis that the agency's role was to sell
to Jews only.
"Legally, this was not a difficult decision, but politically
it was," said Harel. "Opponents of the decision thought
that it was anti-Zionist. But the court recognized the changes that
the agency had undergone from the days of the British mandate –
when it was buying land to advance the rights of a struggling Jewish
minority – to the present time, when it is a powerful body
that can be used to trample on the rights of other minorities."
Harel believes that one of the most "radical" decisions
made by the Israeli Supreme Court occurred when it ordered that
signs in Jewish cities such as Tel-Aviv had to be written in Arabic,
in addition to Hebrew and English. In arriving at its decision,
the court didn't emphasize the individual rights of Palestinian
Arabs, but hinted at the notion of collective rights. "It emphasized
that the Palestinian community ought to be welcomed as part of Israeli
society," said Harel.
Harel currently lives in Jerusalem's Ramat Eshkol neighborhood,
but intends to move to Tel-Aviv and commute to work. "Ramat
Eshkol has become a religious neighborhood," he said. "It
wasn't that way when I first moved in. I am the only secular Jew
in my building. The growing trend in Jerusalem is for secular Jews
to flee the city. I am going to be one of them."
Rhonda Spivak is a Winnipeg freelance writer.
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