Rule of Law: Between Tel Aviv and Bnei Brak

Livni discusses how to balance Jewish and democratic values.

Justice Minister Tzipi Livni 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
Justice Minister Tzipi Livni 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
Peace and two states for two peoples are not only imperatives to avoid the demographic issue of Palestinians outnumbering Israelis, Justice Minister Tzipi Livni says.
Rather, she continued in an extensive discussion with The Jerusalem Post, it is necessary in order to preserve the Jewishness of Israel’s Jewish and democratic state model.
The statement itself by a justice minister, and one who is effectively also foreign minister for running the peace process with the Palestinians, highlighted the uniquely high profile Livni lends to the post.
Not all justice ministers bring the political power to their positions that Livni – who served two previous incarnations in the role – brings as Hatnua leader, former foreign minister and someone who just missed the prime ministership.
On Wednesday, Livni spoke to the Post on a full range of issues going to the heart of defining the country’s identity and future, from the debate over judicial activism, to African migrants, to defining the balance of a Jewish and democratic state.
Unlike her immediate predecessor, Yaakov Neeman, she has been vocal about her views and is positioned to have a greater influence on these fateful issues.
On the debate over judicial activism, as to whether the Supreme Court and the courts in general should shape part of the country’s core values and policy disputes: Livni, though with her typical penchant for nuance, overall came out on the side of judicial activism – or what she called pursuing justice and filling the vacuum created by the Knesset’s failure to ratify a constitution.
She said that from the time she entered politics, she had advocated that “there should be a constitution.” However, “since the Knesset failed at this, so the Supreme Court justifiably enters this vacuum.”
She continued, “I can debate with the Supreme Court on a specific issue, as I did with [former court president Aharon] Barak, but I also need to defend them.”
On defending the court, she grew animated, stating, “If people attack the court, I’ll defend it automatically, because those who attack the Supreme Court, attack a bedrock of the country’s democracy.”
She went further, identifying what she saw as two unholy camps – those who want to limit the court’s ability to interfere with their extreme agendas, and various Orthodox/haredi groups seeking to impose their religious views on the country – as joining together in a “problematic way” and bringing a “wave” of attacks against the Supreme Court.
Livni added another dimension to her view on what makes a good judge, saying that simple deep knowledge and professionalism regarding the law, which current Supreme Court President Asher D. Grunis is known for, are not enough.
She said this is especially true for the Supreme Court, where it is key for the judge to value justice above the unjust, since the justices “have a constitutional role” (which Grunis has generally appeared to oppose).
On the topic of what to do with the around 60,000 non-Jewish African migrants, in the aftermath of a landmark High Court of Justice decision to strike down a law and policy of keeping thousands of them in detention for up to three years without reviewing their status, Livni stuck to two somewhat opposing themes.
On one hand, she clarified that she intentionally referred to them as “illegal infiltrators,” because “that is what they are, period.”
Continuing, she praised the newly built wall on the Egyptian border for essentially stopping any further illegal border crossings by Africans.
She noted that a “very limited number” met the “definition of a refugee” under international law.
Next, Livni said that “states have a right to make rules about who they let into their country.”
But as her second theme, she backed the High Court’s recent ruling, adding that sending the Africans “to a third country” has “failed in the past” and is “very difficult,” and that since “we can’t send them back” to their countries of origin, the state must undertake a “humanitarian solution which recognizes their rights” even if they “came here illegally.”
At the same time, she noted that currently, she was mainly defending the High Court from attack on the issue and was not proposing any specific solutions – as her staff was not focused on the issue’s specifics.
Livni then returned to the issue of balancing the state’s Jewish and democratic identities.
Regarding her recent initiative on sponsoring well-known Prof. Ruth Gavison (who was meeting with Livni right before the Post entered for the interview) to draft a special quasi-constitutional basic law to define once and for all what it means for the state to be Jewish and democratic, Livni was far more circumspect than she was when her office first sent out an announcement about the initiative on August 19.
In the original announcement, Livni highlighted at the top that this was an official government initiative with full support from Prime Minister Binyamin Netanyahu.
Subsequently, Netanyahu’s office said that while it believes defining the issue is important, it had not been fully consulted about the tactics and details of Livni’s initiative, and that it was her personal initiative, which it was not necessarily fully committed to.
Questioned about this dispute, Livni said there is “no disagreement” between her and Netanyahu, and that “you don’t know” in advance what Gavison will draft (though she apparently knows something since they are continually meeting) and that just initially sponsoring an initiative “does not obligate the prime minister or me.”
She added, “I also coordinated the issue with [Finance Minister] Yair Lapid, [Likud MK] Yariv Levin and [Bayit Yehudi] MK Ayelet Shaked, and no one is obligated by the result.” Livni also mentioned she had a long history of working on aspects of the issue with Gavison in other forums.
In explaining the importance of the issue to her, Livni said she has been working on it for her entire public life, and that it has been part of the platform of all of the parties with which she has been involved.
Discussing what she thinks “Jewish” and “democratic” means, Livni said, “Israel is the place for the Jewish nation to preserve its system, history and culture, and to live in peace and in a democracy.”
She added that “equality is also part of Jewish values” and “I don’t accept injecting Jewish law or beating down people’s rights.”
Related to that issue, when asked about civil marriage, Livni said she supports it, giving a long and detailed answer about her personal journey and “the many stages” she went through in her views.
Livni started by talking about some of her personal religious views and her level of observance.
She said she “grew up Orthodox” (which she later identified as more traditional) and that she had made a “choice to continue with it” (or some of it). To that extent, Livni said she attends “synagogue on Yom Kippur and on days where there is Yizkor [the memorial prayer]. I fast on Yom Kippur. I have a Passover Seder.”
She explained, “I am a vegetarian so I do not have the problem of non-kosher meat, but I don’t eat shratzim [non-meat foods which the Torah defines as non-kosher].”
Next, she said that when she started trying to find compromises on religious issues with haredi leaders, she found that “even if everything else was agreed to,” the issues of “conversion, marriage and divorce” would block any grand resolution and compromise.
At the beginning, Livni said she “tried to find solutions in accordance with Jewish law.” But, she said, the religious leaders she negotiated with were “very stubborn.”
The justice minister noted that “Bnei Brak will always be the same Bnei Brak,” but she did not want those representing the highly haredi area to impose their views on the rest of the country, which is struggling with dynamic issues.
For example, she said that Bnei Brak haredim “do not meet new immigrants” whose Jewishness might be disputed, but that “my kids do meet these immigrants at university and in the army, and so I need a solution” – even if it is without ultra-Orthodox approval.
She added that the state cannot “cut off 300,000 people,” referring to the large number of residents from the former Soviet Union who moved to Israel in recent decades, whose Jewishness is disputed.
Saying that the debate about Jewishness “cannot be just about who your mother is,” Livni added that “what you feel” is also important.
She explained that those who are completely secular or “never feel Jewish until heaven forbid,” they only encounter their Jewishness when “reciting Kaddish [the prayer to mourn deceased family members],” are missing something.
Livni concluded (as Attorney-General Yehuda Weinstein was being ushered into the room – maybe for discussions on whom to choose as the next state attorney?) that the Jewish and democratic balance should “not be a choice between Tel Aviv and Bnei Brak, but something in the middle.”