Subscribe to our Newsletter


click to dowload our latest edition

Is the Judicial Services Commission hostile to Jews?

Published

on

OP-EDS

The appointment of judges is a key component of the health and vitality of our democracy. The Judicial Services Commission (JSC) has recently gone through the process of nominating judges for the Constitutional Court, the Supreme Court of Appeal, and high courts around the country.

The separation of powers doctrine means that the different arms of government are checks on each other. The legislature’s role is to create the laws, the judiciary’s role is to adjudicate upon the laws, and the executive’s role is to carry out the law. Traditionally, the executive also has the task of appointing judges.

In America, the president decides which judges are placed on its Supreme Court, subject to a confirmation hearing held by the Senate. In South Africa we have the JSC, which is made up of 23 people from a variety of sectors, including politicians, an academic, and legal practitioners. Members interview the judicial candidates, and then recommend candidates who the president can ultimately appoint. The president may refuse to appoint people and ask for an additional set of names.

The JSC hearings have been publicly broadcast, which gives us a sense of what these potential judges would be like on the bench. It also shows the workings of the JSC and the questions that its members deem important.

There is concern that Julius Malema sits as a member of the JSC while being a frequent litigant in the courts. While I trust that judges would be able to fairly apply the law to the facts of Malema’s cases, there is concern that his role in their further elevation to higher courts may create a perception of bias in the eyes of the public. It may be appropriate for Malema to recuse himself from taking part in the nomination process of any judge that has heard his cases.

The Constitution requires judges to be appropriately qualified and to be fit and proper.

We should expect the JSC to ask candidates questions about their knowledge of the law and the cases they litigated while in practice. If they are already a judge and are being interviewed for elevation to a higher court, questions should be asked about the judgments that they have written and whether they were delivered timeously. The JSC should also ensure that judges in particular divisions have experience in private law, criminal law, and constitutional matters.

The Constitution states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. However, the obligation is only to consider these criteria, and demographic representation is by no means mandated.

It has become common for members of the JSC to interrogate white male candidates about their sex and gender. Judge Roland Sutherland, who was being interviewed for the position of deputy judge president of the South Gauteng High Court, was asked to comment on the fact that he is a white male. He noted that, among deputy judge presidents in the country, only one of them is white. This entails that his appointment would further the objective of broadly reflecting the racial composition of the bench.

Sutherland has been nominated by the JSC, and thankfully many of the questions that he was asked related to his achievements as a judge. His judgments are written with clarity and wisdom, and his reputation as a fair and patient adjudicator is widespread at the Bar. He also restructured the court to ensure that trial dates are allocated within a few months as opposed to years.

There is a reasonable worry that the JSC has shown hostility to Jewish candidates. Lawrence Lever was asked if his “observation of the Sabbath would interfere with his judicial duties”. Such questions weren’t put to Christian or Muslim candidates.

The BDS (Boycott, Divestment, Sanctions) movement wrote a letter to the JSC claiming that it was improper for Judge David Unterhalter to have held a position at the South African Jewish Board of Deputies (SAJBD) because it deemed the organisation to be supportive of the “apartheid state of Israel” and antithetical to the values of the Constitution.

Instead of asking Unterhalter about the vast array of expertise that he would bring to the Constitutional Court, the Black Lawyers Association and Dali Mpofu repeatedly asked about his short stint on the SAJBD.

The code of judicial conduct states that a judge cannot be part of a political party, but it explicitly allows judges to be members of charitable organisations like the SAJBD. Unterhalter made it clear that he had been asked to assist vulnerable people in the Jewish community who had been imperilled by the pandemic

The JSC declined to nominate Unterhalter in spite of his numerous appearances before the Constitutional Court in landmark cases that include the certification of the Constitution itself.

  • Mark Oppenheimer is a practising advocate and member of the Johannesburg Bar.

Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

OP-EDS

SA media’s anti-Israel bias verges on incitement

Published

on

Nuance, context, fact checking, and, above all, reflecting both sides of the story when the issues are sharply contested, are the sine qua non of professional journalism.

This is particularly true when it comes to reporting on any conflict, whether involving individuals, communities, or entire countries. Conversely, uncritically reflecting the narrative of one side while minimising – if not disregarding altogether – the version of the other side isn’t journalism. Rather, it’s dishonest propaganda masquerading as such.

Over the past week, the distress of the Jewish community over the renewed violence in the Middle East has been compounded by the local media’s palpable failure to adhere to the most basic standards of journalistic rigour in terms of reporting what has been happening.

With few exceptions, mainstream news outlets have unquestioningly regurgitated the exaggerated, emotive, and frequently inflammatory claims of the hardline anti-Israel lobby while routinely omitting the Israeli perspective.

From print and online media through to radio and TV channels, a distorted picture of brutal, rampaging Israeli oppressors victimising helpless, blameless Palestinian victims has been served up again and again, without introducing even a small measure of balance to temper that false picture.

It’s obvious that the Israeli-Palestinian conflict invariably elicits strongly-held opinions on all sides. Even the salient facts of the situation are sometimes disputed, which is often true of most conflict situations.

Journalists who wish to convey an accurate picture of this fraught subject must be especially rigorous in order to maintain proper standards of truth and objectivity. That entails careful fact checking, reflecting competing narratives, avoiding exaggeration or sensationalism and, in general, making a reasonable effort to present opposing points of view fairly.

This isn’t to say that professional journalism necessarily entails never having an opinion of one’s own. As is all but inevitable, news reporting will often to some extent be slanted towards a particular point of view, especially when it comes to issues where the salient facts are hotly disputed.

This is certainly true about the conflict between Israel and her neighbours. To expect the media to be completely neutral on that question and just report “the facts” may be unrealistic. However, the manner in which the recent violence on the Israeli-Palestinian front has been reported in the local media is something else entirely.

What we are witnessing instead is the journalistic equivalent of unquestioning group think, an unseemly rush on the part of editors, reporters, and opinionistas of every stripe to convey a single, rigid ideological orthodoxy.

This kind of “four legs good, two legs bad” approach is of course standard fair in authoritarian regimes. The question we are confronted with is why it has come to dominate the way in which Israel is being portrayed even in democratic countries, and perhaps most glaringly in South Africa, where antipathy towards Israel is deeply rooted in the ideology of the ruling party.

As has come to typify reporting on “clashes” (an often-used word by reporters) between Israelis and Palestinians, it’s invariably the response of the first rather than the provocation of the second that dominates the headlines.

In reports, we are seeing, as we saw in previous confrontations, how Israeli counter-strikes against terrorist positions in Gaza and their impact on the population have eclipsed any understanding of the unprovoked barrage of lethal rocket fire against Israeli cities. So there is no understanding of what necessitated such retaliation in the first place. Cause and effect have simply been reversed.

The ostensible cause of the current unrest goes back to the controversy about ownership of certain properties in the neighbourhood of Shimon HaTzadik/Sheikh Jarrah. The media’s unreflecting take has been simply to rehash the standard propaganda canard of rapacious Jewish settlers attempting to drive Palestinians out of their homes in “occupied East Jerusalem”.

The legal background to this case is complex, with roots going back nearly 150 years to the era of Ottoman rule and preceding the emergence of the modern-day Zionist movement itself. Yet, in the age of electronic communication, that information was readily available to anyone wishing to portray the situation as accurately as possible.

Suffice to say that little or no effort has been made in that direction. Equally mendacious is the way in which the violent altercations between police and protestors on the Temple Mount have been portrayed as a case of jack-booting Israeli stormtroopers brutalising blameless and peaceful Palestinian worshippers. Given the profound sensitivities surrounding religious freedom, and particularly when relating to this profoundly fraught and contested part of the world, this arguably crosses the line from mere anti-Israel bias to outright incitement, not just against the Jewish state but, inevitably, against Jewish people everywhere. It is, to say the least, irresponsible.

One small silver lining that we can take from this fog of misinformation that the media has been so complicit in propagating is that we are fortunately no longer reliant on mainstream media outlets for our information.

There exist today a plethora of online resources enabling anyone genuinely interested in learning about these issues to fill in the gaps that our inveterately biased media have helped to create.

Our challenge today must be first to educate ourselves, and from there hopefully go on to educate those who in spite of the ceaseless indoctrination that confronts them at every turn are still open to listening, engaging, and making properly informed choices about what to believe.

  • Rowan Polovin is the national chairperson of the South African Zionist Federation.

Continue Reading

OP-EDS

The law of the land is the law

Published

on

When it came to the tragic events at Mount Meron over Lag B’Omer, the writing was on the wall, say many who have written and spoken about it in Israel over the past few days.

It followed disastrous political policy in past years (preceding Bibi Netanyahu’s coalition governments, but gaining momentum under him), which has enabled the Haredi community in Israel to develop a model of exterritorial behaviour – behaviour which assume that the rules don’t apply to them. This reality isn’t dictated by their special needs as a community, but by their politicians as a show of strength.

The only thing that’s legitimate to say to the families of the victims, those who lost their lives, and those who were injured in the compound around the grave of Rabbi Shimon Bar Yochai, is that we send our heartfelt condolences and want to find ways to help them in any way possible.

Their pain is immeasurable, and the impact of this awful, tragic event on their lives will accompany them into the future. We need to care for the widows, the orphans, and we will. That’s who we are, and I’m proud of this fact.

And it’s exactly because we care for the widow and the orphan that our response to what happened cannot end with condolences.

We have a responsibility to all of those who live with us as citizens, residents, or visitors to our country, to ensure their well-being and safety. It’s to that end that we created an extraordinary vaccination campaign during this time of pandemic. Our national health system (kupot cholim) ensured that vaccines were available to all, irrespective of whether they acknowledged the legitimacy of the Jewish state or not. It’s to that end that the Israel Defense Forces defends all those who live in this country whether they live in Bnei Brak, Um Al Fahm, or Tel Aviv. Viruses and missiles are blind to ethnicity, faith commitments, and political ideologies.

Similarly, when it comes to taking responsibility for the public domain, for health and safety, for building ordinances, for roads, for large-scale public events like sports events, religious gatherings, rock concerts, it’s the state and its agents who must not only take responsibility, but also face responsibility for all of these spaces and situations, irrespective of which populations are involved.

There is no difference between what needs to be done on the Temple Mount during Ramadan, the Arad Music Festival, the Kotel during the priestly benediction, in Tel Aviv during the large Gay Pride Parade, at Meron on Lag B’Omer, and in Rabin Square during mass demonstrations of any political group.

So why was this allowed to happen? We have lived with a model of separate communities who very rarely interact with each other in meaningful ways for a very long time. Jews and Arabs, secular and religious, modern Orthodox, and Haredi. All living most of the time in our separate tribes and only occasionally – usually in times of trauma – coming together as am echad (one people).

The voices coming out of what happened in Meron are diverse. There is the voice which says, “This is the will of G-d.” There is the voice which says (very quietly most of the time), “The Haredi community had this coming to them. Just look how they ignored the rules during Corona.” There are political voices which are already manipulating the situation as they desperately try to form a new collation to rule in coming years (this is the crocodile-tears voice).

To this I wish to add my voice with a very clear Talmudic concept, “Dina d’malkhuta dina.” This powerful statement, which appears four times in the Babylonian Talmud, means quite simply, “The law of the land is the law.” I choose to use a phrase from within the codex of Jewish law for the obvious reason that this tragedy was a tragedy which had an almost exclusive impact on the Haredi community.

It’s therefore the duty of the Israel political and administrative leadership to go to this community in a language it understands and make it clear that they are acting on their behalf; make it clear that, as this community is an integral part of Israel by virtue of them living here, and irrespective of the attitudes they may or may not have about the secular nature of many of the laws of the state, they deserve to be cared for by the state. One of the ways the state cares for its citizens is by enacting laws and ordinances which ensure the safety of all of those who live within its boundaries.

Politicians who don’t act in this way, whether from the left or the right, secular or religious, are acting in a criminal way, are endangering the people of this country, and have to be removed from office. Only then will our people here (and remember “our people” includes, in my definition, everyone who lives here) be safe and be able to pray, dance, cheer, and march in large numbers.

  • Julian Resnick grew up in Somerset West and made aliyah with Habonim Dror to Israel in 1976. He lives on Kibbutz Tzora with his little tribe of wife, two of his three children, and his five grandchildren. He guides and teaches in Israel and around the world, wherever there is a Jewish story.

Continue Reading

OP-EDS

What will it take for me to go back to shul?

Published

on

(JTA) When I was very young, what motivated me to go to shul on Shabbat morning was the fire station two houses away from the synagogue.

My dad was the rabbi of the only congregation in Annapolis, Maryland, and shul attendance was a family affair. If I behaved during services, my big brother would take me to the fire station afterward, and sometimes the firemen let me sit at the wheel of the hook-and-ladder truck. That made my week.

In recent days, I’ve been thinking a lot about my various experiences with shul attendance over the years. The sad truth is that though I’m fortunate enough to have received my second COVID-19 vaccine more than a month ago, I haven’t been back to shul and I’m not sure why.

It’s ironic because these past few years, I’ve really enjoyed shul – the services, the rabbis, the people, the singing. In my early years, not so much.

As kids, learning to read Hebrew and becoming familiar with the prayers, the goal at services was to be the fastest.

When I was about 10, I attended a family wedding in New York and stood in awe as I took in the sight of what seemed like hundreds of men in black hats and dark suits swaying fervently as they recited the afternoon mincha prayer. I zipped through the silent Amidah and was waiting for the service to continue. A few minutes went by and then a few more minutes until it seemed everyone had finished.

I asked my brother what the holdup was, and he pointed to a very short older man, eyes closed, still in fervent prayer.

“That’s Rav Aharon Kotler, the head of one of the biggest yeshivas in the world,” he told me.

“What’s taking him so long?” I asked. “Can’t he read Hebrew?”

As I got older, I learned about the importance of kavanah, or intention, putting one’s heart and mind into the words we were saying as we prayed. But during my teenage years, prayer was associated more with obligation than choice.

Over the years as an adult, with shul attendance no longer coercive, I have been blessed to have belonged to three synagogues (in the three states where we lived) that were true houses of prayer. And in each of the shuls, what I have enjoyed most in the service is when our joined voices blend in song, stirring a kind of transcendent feeling of collective prayer and community.

Then came COVID-19, and we had no choice but to stay home. I missed the rhythm of walking to and from shul on Friday evening and Shabbat morning, feeling part of the spirit of the kehillah (congregation), and often lingering after services to catch up with friends.

But I became accustomed to staying home, and that had its own pleasant pattern: sleeping later, praying at home, spending more time with my wife and, when the weather allowed, meeting friends – six feet (1.8m) apart – on a bench outside.

I know I’m not alone in my ambivalence about going back to shul now. Going back would be good for the congregation, and probably for us, even though the prospect of COVID-19-limited attendance, singing, and socialising is less than appealing.

Are we just lazy or fearful of becoming sick? Or have we become dependent on the safety and security of keeping close to home?

What would get me back to shul? No, it’s not the prospect of visiting a nearby fire station after services. It’s the chance to ignite a spark of faith and commitment, and time to take the next step back on the long path toward normalcy.

So there I was, on Saturday, back in synagogue. Sitting alone, at least six feet away from others, and wearing a mask, felt isolating at first, like praying alone in a room in spite of others around me. But gradually, the mood lifted and the familiar comfort of the prayers – and the warm (if muted) greetings from fellow congregants – made me feel at home again. I could get used to this.

  • Gary Rosenblatt was editor and publisher of ‘The Jewish Week’ from 1993 to 2019. Follow him at garyrosenblatt.substack.com.

Continue Reading
Advertisement

Naale Elite Academy

Trending