IN THREE countries close to South African Jews – Israel, South Africa and the United States – a monumental fight is raging between defenders of the law and powerful politicians attempting to subvert it. Protagonists are public figures holding high office including presidents, judges and political leaders. The effects will ultimately be felt by ordinary people.
South Africans cheered last year when the constitutional court’s Chief Justice Mogoeng Mogoeng ruled in a landmark case that President Jacob Zuma failed to uphold the constitution of the republic. He had refused to implement the public protector’s instructions to compensate for benefits he received from state money spent upgrading his private homestead Nkandla. The chief justice’s finding affirmed that the law applied equally to all, despite the president’s contempt for it, and Zuma had to pay back some R7m to the state. In parliament last week the Economic Freedom Fighters party aptly labelled him a constitutional “delinquent”.
In the United States in the last two months, judges stood firm against the new president, Donald Trump, ruling that his executive order signed immediately after taking office barring entry to people from seven Muslim-majority countries be put on hold until its constitutionality was properly tested. Trump’s response – consistent with his narcissistic temperament – was outrage towards the judges, who were doggedly teaching him the limits of his power. He had to abide by their rulings.
In Israel, a battle is raging between proponents of constitutional legality and the settler movement, which succeeded last week in passing in the Knesset the Regularisation Law, driven by Education Minister Naftali Bennett’s Jewish Home party. Dubbed the Land-Grab Law by its detractors, it would allow private Palestinian land in the West Bank to be expropriated by Israel to retroactively legalise settlements which were built there illegally. The settlers will not gain ownership of the land but will be allowed to remain.
The Law’s illegality is so blatant that Israeli President Reuven Rivlin publically condemned it, since Israel has not established sovereignty over the West Bank. This principled stand by Rivlin, who actually supports settlements and reportedly believes in a binational state with equal citizenship among Arabs and Jews as the solution to the conflict, echoed that of Israeli attorney-general Avichai Mandelblit, who said he would not defend it before the Supreme Court, which is where it will inevitably land up.
Rivlin said: “Israel has adopted international law [and cannot] apply and enforce its laws on territories that are not under its sovereignty. [Doing so] will cause Israel to be seen as an apartheid state, which it is not.”
The word apartheid is usually applied to Israel by rabid Israel-haters such as the BDS movement and similar groups. South African Jews who lived through apartheid are highly sensitive to its use, claiming it is totally inappropriate for Israel. Now, alarmingly, Israel’s president has himself warned the country by reference to this word. The extremists among the settlers don’t seem to care, however.
Legally, the case against the Regularisation Law is clear and the Supreme Court will almost certainly declare it unconstitutional. But extreme rightwing political forces will not buckle so easily, and the settler lobby is threatening to undercut the Supreme Court’s authority by passing a law enabling the Knesset to override the Court in certain cases. Fortunately, other eminent rightwing figures in the government have said they would oppose this, such as Finance Minister Moshe Kahlon: “We have no other Supreme Court and it must not be harmed.”
What’s in a name? The law’s proponents call it the Regularisation Law; but those who call it the Land-Grab law have a point. Hopefully, the principled Israelis in positions of power who are defending the country’s commitment to legality will prevail.