Think About It: Who’s afraid of Professor Ruth Gavison?

The Prime Minister’s Office has expressed displeasure regarding the appointment, but so far has not vetoed it.

By
August 25, 2013 21:11
Tzipi Livni

Tzipi Livni 521. (photo credit: REUTERS)

Since she was appointed by Justice Minister Tzipi Livni last Monday to prepare a draft constitutional provision defining the exact dimensions of what it means for Israel to be a “Jewish and democratic state,” Prof. Ruth Gavison has been subject to vicious attacks both on her positions and her integrity, from both Right and Left, but especially the latter.

Even the Prime Minister’s Office expressed displeasure regarding the appointment, but so far has not vetoed it.

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What is it about Gavison that elicits such extreme reactions? It is that she has chosen a middle way – a road of compromise – on some of the most burning and fateful issues for Israel’s existence.

At the outset I should like to point out that though I consider myself part of the Israeli Left, I agree with Gavison’s basic approach, and am a great admirer of her consistent and systematic academic and public work, conducted in the face of an unending smear campaign against her.

What is all the fury about? Gavison refuses to join the choir that claims Zionism is a reactionary movement, like all national movements, yet does not take it for granted that Zionism will remain enlightened and just without effort on our part.

She believes that Israel can be both Jewish and democratic, even though there will always be those who feel it could be more Jewish, or alternatively more democratic. At the same time she insists that there is need for constant vigilance to ensure the delicate balance between the two is maintained.

She believes one of the preconditions for Israel’s being truly Jewish and democratic is the two-state solution, based on the basic principle of the partition of Mandatory Palestine approved by the UN in 1947, since only if there is a Jewish majority in the Jewish state, and the Palestinian right to independence is realized, can Israel be both Jewish and democratic vis-à-vis its Arab citizens.

She believes that the only way to deal with the religious-secular rift is by means of compromise, in which neither side will get everything it dreams of – i.e. Israel cannot be a halachic state, and also cannot be a totally secular state in which religion has no formal role at the state level.

She opposes the preparation of a constitution based solely on one school of thought (i.e. the secular-liberal one), but gladly cooperated with the efforts of the chairman of the Knesset Constitution, Law and Justice Committee in the 16th Knesset, MK Michael Eitan, to draft a “Constitution by Agreement,” and served as an adviser to the committee’s work.

However, her greatest sin (at least in the eyes of her left-wing opponents) is her objection to the extreme activism of the Supreme Court, and her claim that the principles along the democratic-Jewish, religious-secular, and Arab-Jewish axes should not be laid down by the Supreme Court, but by the legislature – the Knesset, since it is only the latter which truly represents the whole spectrum of opinions and beliefs in Israel.

It is this position that cost her a place on the Supreme Court back in 2005, when Justice Minister Livni supported her candidacy but court president Aharon Barak placed his full weight against the appointment, claiming that Gavison “had an agenda.”

Why did Livni decide to appoint the controversial Gavison of all the available legal experts, and why now? Firstly, the record shows Livni is a great admirer of Gavison. However, the main reason is the public furor created around various proposals for a new Basic Law designed to define the nature of Israel’s Jewishness and democracy submitted by MKs in the previous and the current Knessets. Livni decided that rather than merely oppose the various initiatives, most of which advocate breaking the balance between the Jewish and democratic natures of the state in favor of the former, or are simply odd (for example, the bill submitted by Ruth Calderon from Yesh Atid, which proposed turning the 1948 Proclamation of Independence into a basic law), the time has come to define the basic principles of Israel’s Jewishness and democracy, and to lay down the basic rules for implementing these principles.

The principle that Israel is to be both Jewish and democratic was indeed laid down in the Proclamation of Independence. In the late 1980s it was enacted that no one can run for election to the Knesset if in word or deed he denies the democratic and Jewish nature of the State of Israel.

Another law stated that the immunity of MKs does not apply to statements or acts that involve the denial of Israel’s democracy and Jewishness.

Article 1 of Basic Law: Human Dignity and Liberty, enacted in 1992, stated that “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”

Nevertheless, the exact content of Israel’s Jewishness and democracy, were never clearly explained or defined.

Since Gavison believes in compromise rather than dictates, and since she has many years of experience in drafting principles in the relevant spheres – inter alia she has written books on Israel as a Jewish and democratic state, on the principles behind the 1947 partition plan, and in 2001 published a 300-page document which she drafted together with Rabbi Yaacov Medan and which contains elaborately explained proposals for a secular-religious covenant to replace the rather archaic religious “status quo” in Israel – she appeared to Livni to be a perfect candidate.

Gavison is not expected to reinvent the wheel, and will undoubtedly dig up all the old drafts, diligently prepared over the years by numerous academics, jurists and ideologists (and some of which she herself participated in drafting), and will come up with a well thought-out, reasoned and feasible proposal.

Unfortunately, the chances that what she comes up with will actually be enacted are slim. The mood in Israel today is not one of compromise, but of sharpened positions – of absolute rights and wrongs, and power struggles based on them. The strong feelings that her name and positions elicit are also unlikely to serve a smooth and logical process.

Nevertheless the effort is worth making, and I personally should like to wish Prof.

Ruth Gavison the best of luck.

The writer is a retired Knesset employee.


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