Professor Paul Eidelberg
Introduction
Civil Disobedience, successful in America against racial discrimination in the 1960s, was unsuccessful in Israel against partial withdrawal from Judea-Samaria in 1995. Since the related Wye Memorandum has triggered civil disobedience in Israel again, and since acts of civil disobedience in Israel may be prosecuted as sedition, it behooves us to reexamine the Feiglin-Sackett case dealing with this issue.
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On September 2, 1997 a Jerusalem Magistrate Court handed down a verdict of guilty of sedition to Moshe Feiglin and Shmuel Sackett. This was the first time in the history of the state that a Jew was convicted of sedition.
The verdict was based on actions taken by Feiglin and Sackett in 1995 when they organized thousands of demonstrators across Israel to block highway intersections in protest against implementation of the Israel-PLO Declaration of Principles (DOP) of September 13, 1993. Like Benjamin Netanyahu, Feiglin and Sackett believed that implementation of the DOP endangers Israel’s existence. The Wye Memorandum, signed by Prime Minister Netanyahu on October 23, 1998, expedites the DOP even though 300 Jews -- equivalent to 16,000 Americans -- have been murdered by Arab terrorists since the Rabin-Arafat handshake. The DOP may rightly be called a “covenant with death.” (See Isaiah 28:15.)
Secretly concluded in Oslo, the DOP was ratified on the White House lawn and imposed on Israel as a fait accompli. The agreement was never subjected to serious Knesset or public debate. There were no American-type congressional hearings and no adversarial arguments by defense analysts and experts on the Middle East. Also, distinguished Israeli citizens submitted scholarly petitions to Israel’s Supreme Court challenging the DOP’s legality.[1] The Court refused to consider the petitions on the merits, claiming they involved a “political,” not a “justiciable” issue. The Court’s decision is questionable, since the petitions stipulated that members of the Rabin Government, by negotiating the DOP, had violated specific laws of the State. The Feiglin-Sackett case should be viewed in this light.
Supporters of Feiglin and Sackett summoned to their cause the name of Martin Luther King. It will be recalled that King employed civil disobedience against state laws that discriminated against Black Americans. His success depended on two key factors: (1) protesting against discriminatory laws agrees with America’s egalitarian society; (2) America has a Constitution, a “supreme law of the land,” by virtue of which any legislation that violates the equal protection clause of the Fourteenth Amendment may be litigated in the Supreme Court and declared null and void.
Contrast Israel: (1) protesting against the DOP offends the democratic mind, which insists on the equal right of Palestinian Arabs to self-determination; (2) not only does Israel lack a constitution by which to challenge questionable acts of government, but Israel’s Supreme Court lacks the scope of judicial review of its American counterpart. Without judicial redress, Israelis will the more readily resort to “civil disobedience.”
Two Dilemmas
HOwever noble the cause, civil disobedience contradicts two ostensibly democratic principles: majority rule and the rule of law. Majority rule, however, can lead to oppressive legislation and dangerous government policies. The American Constitution minimizes this dilemma by prescribing a bicameral legislature, judicial review, and by making representatives individually accountable to their constituents in multidistrict elections. Direct election of representatives opens a political avenue by which citizens may remedy grievances without civil disobedience.
No such thing exists in Israel! Israel is the only reputed democracy in which the people vote not for individual candidates but for fixed party lists, and in a single nationwide district! Since Knesset Members (MKs) -- hence cabinet ministers -- are not directly accountable to the people, they can ignore public opinion with impunity. To make matters worse, only a bare Knesset majority is required to affirm Government agreements with foreign powers involving even the highly controversial and precarious issue of “land for peace”! In America, lesser agreements require ratification by a two-thirds vote of the Senate.
Deprived of political and judicial avenues of redress, civil disobedience remains the only resort of public spirited citizens (disparaged as “right-wing extremists” by ignorant, insensitive, and sheltered commentators).
Nevertheless, any act of civil disobedience, on the face of it, involves the substitution of the rule of men for the rule of law. As Professor Harry Jaffa put it: “The idea of the rule of law rejects the notion that any individual or any group has sufficient wisdom and virtue to be trusted with the decisions of individual cases on their own merit, without regard to general rules established by and through the whole community.”[2]
In Israel, however, the rule of law has been undermined by a Basic Law of the State! Basic Law: The Government stipulates that “The Government is competent to do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.” Hence the Government can declare war, make treaties, and change the exchange rate without consulting the Knesset! The Knesset, all-powerful in theory, is impotent in practice. This is why -- if we ignore the 1990 National Unity Government -- no Labor or Likud Government has ever been toppled by a vote of no-confidence! In fact, when Labor is in power, such is its control of the economy, and so entrenched is it in the media and the judiciary, that the Government can violate the gravest laws without retribution, the more readily under cover of the “peace process.” But regardless of which party is in power, the arbitrary rule of men prevails. Witness the Attorney-General’s Office which, for political reasons, refrains from indicting notorious malefactors. In constitutionless Israel, Arab MKs can openly and freely commit acts of sedition while Jews may be charged with sedition for acts of civil disobedience! But as will be seen shortly, Jewish MKs also can violate the law with impunity.
A Jewish Perspective
AT first glance, civil disobedience clashes with Exodus 23:2, “follow the majority.” Exodus 23:2, however, originally applied only to judicial bodies. Most halachic authorities rendered this verse applicable to nonjudicial bodies on “civil” but not “religious” matters.[3] Since the Israel-PLO Agreement diminishes Jewish control of the Land of Israel, it collides, most obviously, with the religious prohibition against yielding Jewish land to Gentiles. Hence any majority that supported the DOP (or the Wye Memorandum) cannot, under Jewish law, bind the minority -- say the Jews in Judea-Samaria! This conclusion would then justify the acts for which Feiglin and Sackett were charged with sedition.
The trouble is that the Torah is not the “supreme law of the land” in present day Israel. Indeed, it is hardly an exaggeration to say that the supreme law in this country is the “peace process”! The “peace process” has given Israeli politicians a license to dispose of sacred land as if it belonged to them and not to the Jewish People. And since the power of these politicians is not limited by a constitution, they cannot be brought to justice in a court of law even though 5,000 Jews -- equivalent to 267,000 Americans -- have been wounded during this “peace process”!
Having no redress for their grievances, many Jews, seeing their homeland abandoned, and seeing their lives and the lives of their families endangered by thousands of Arab terrorists released in the name of the “peace process,” these Jews, out of desperation, will resort to “civil disobedience,” if not to violence. What a wretched story, magnified by contrasting America.
In America, thanks to its Constitution, the President -- the world’s most powerful political leader -- may be impeached for perjury and obstruction of justice. In constitutionless Israel, public officials cannot be indicted for violating laws which, prima facie, prohibit the surrender of land to the sworn enemies of the Jewish People!
A Political Perspective
BEcause Israel lacks a Constitution with familiar institutional checks and balances, so extensive is the power of the Labor Party that once it gains control of the Government it can proceed, surreptitiously, to revolutionize the country in utter disregard of the beliefs and values of the Jewish People! This was the ultimate objective of the 1992-1996 Labor Government, as I shall now show. (The Feiglin-Sackett case will then be seen in its true light.)
First, even before that Government came to power, Labor Party leaders held secret contacts with PLO officials in violation of section 4(h) of the Prevention of Terrorism Law.[4] These contacts prompted Prime Minister Shamir to declaim in the Knesset: “I see documents and from them I learn that there are those among us who talk about peace but practice treason.”[5] Although the law in question does not involve treason, its violation should have led to indictments. (None followed.) These illegal contacts continued even after the Rabin Government came to power via the June 1992 Knesset election. (Not until January 19, 1993 were such contacts decriminalized.)
Second, during the 1992 election campaign, Rabin promised the nation there will be No recognition of the PLO, No Palestinian state, No negotiation over Jerusalem (and No withdrawal from the Golan Heights). These pledges affirmed the profound beliefs of large Jewish majorities attested to by professional surveys taken prior to the June 1992 election. I am not speaking here of politicians who renege on campaign promises regarding taxation or health care, but of politicians who betrayed their promises concerning the very borders and capital of the State.
Third, consider the distribution of the 120 Knesset seats resulting from that election. Whereas the Labor-Meretz, led by anti-Zionists and radical secularists, received 56 seats, the Likud-led Zionist and religious parties received 59, while two Arab parties received 5. Also, if one sorts out the ideological orientations of the parties that failed to cross the electoral threshold, those of the Right received about 8,000 more votes than parties of the Left (including those of the Arab parties). A popular majority opposed the Labor Party despite its appealing but mendacious four Noes.
Fourth, by winning 5 seats, the Arab parties enabled Labor-Meretz to form an unprecedented blocking majority of 61 seats, such that President Ezer Weizman (Labor) could disregard the 59 seats won by the Zionist and religious camp. This maneuver prompted the religious Shas Party to betray its voters and join the Labor-Meretz coalition. Had Shas not done so, Labor would surely have refrained from forming an unprecedented and precarious government dependent on the alliance of Arab parties, an alliance that would have alienated the “floating vote.” Shas, however, was on Labor’s payroll! The State Comptroller's Report of January 11, 1993 revealed that Labor and Shas had concluded a secret agreement on October 6, 1989 by which Shas received monthly payments of 110,000 shekels (about $55,000 in U.S. funds at the time) for not contesting Histadrut elections. This payoff, which violates the law and Supreme Court decisions on political agreements, was carried out for three years during which Labor paid Shas almost four million shekels. No indictments followed.[6]
Fifth, the Labor Government tried to subvert Israel’s definition as a Jewish State. Shimon Peres adopted the Arab definition that Israel is not the state of the Jews but the state of its citizens. This contravened the law as well as Israel’s Declaration of Independence which proclaim Israel a “Jewish State.” The Declaration, said the Supreme Court in an obiter dictum, embodies the “credo of the people,” and all acts of the State must be consistent therewith.
Sixth, to deJudaize Israel, the Government, with Rabin as Prime Minister and Defense Minister, deleted the terms “Judaism” and “Zionism” from the Soldiers Code of Ethics along with any reference to “Eretz Yisrael,” the Land of Israel. Moreover, the fanatically anti-religious Meretz leader Shulamit Aloni was appointed Minister of Education to facilitate the indoctrination of youth in a secular “Post-Zionist” Order. To clinch the argument, Shimon Peres applied for Israel’s membership in the Arab League!
The present writer therefore contends that, unbeknownst to the people of Israel, the June 1992 Knesset election produced an electoral coup d’etat. That election spawned a Government whose goal was to overturn the character of the State. Why?
Labor’s electoral base among Jews has been evaporating since 1977. In that year’s Knesset election, the Likud came to power for the first time, which prompted the religious parties to terminate their 29-year alliance with Labor. Add the high birthrate of religious families along with the exodus of a million secular Jews, and the Labor Party, to obtain power, has to court Arab voters and “accommodate” Arab parties, meaning the PLO.
The Israel-PLO Agreement was far more than Labor’s “solution” to the Arab problem in Judea-Samaria and Gaza. Yielding Israel’s heartland to the PLO coupled to various efforts to deJudaize Israel must strike any candid observer as intrinsically seditious, especially when juxtaposed to the 1993 Guttman Institute study, which showed that 25% of the Jews in Israel are Orthodox, while another 55% are traditional. (Only superficial observers mistake current opinion polls in Israel supporting the “peace process” with the inmost beliefs of Jews in this country -- beliefs yet to be represented by any ruling party. Indeed, the same polls indicate that most Jews do not expect Moslems to forsake their bellicose designs against the Jewish State!)
Conclusion
THe Israel-PLO Declaration of Principles, which entailed not only the release but the arming of thousands of Arab terrorists, including murderers, would never have occurred if Israel had a Constitution that requires merely a three-fifths Knesset majority to ratify an agreement so momentous as the DOP (or the Wye Memorandum). Indeed, if Israel only had a parliament whose members are directly accountable to the voters in multidistrict elections, Knesset Members would not so readily ignore Jewish public opinion and values. If Israel had had such a Knesset, then, consistent with existing law and prompted by Jewish public opinion, that Knesset would have expelled its two Arab parties for negating the Jewish character of the state. Given, moreover, a Knesset whose members are accountable to the people and not to self-perpetuating party oligarchies, Labor and Meretz would not trifle with the law by defining Israel as a state of its citizens.
And so the Feiglin-Sackett case is but a single manifestation of the basic flaws in Israel’s political system. That system needs to be drastically overhauled, which can only be accomplished by a Constitution.
Former Israel Air Force commander Major General Benjamin (Benny) Peled recently remarked that Israel will not become a proper state until it has a Constitution. This is precisely why the Foundation for Constitutional Democracy has designed a Constitution for the State of Israel.[7]
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[1] See High Court of Justice No. 2805/94. A more comprehensive petition (HC 3414/96) was submitted to the Supreme Court two years later. See Howard Grief, “A Petition to the Supreme Court of Israel Challenging the Legality of the Oslo Accords,” International Journal of Statesmanship (Foundation for Constitutional Democracy), Vol. I, No. 2, Summer 1996, pp. 1-78. (Available: Write to POB 23702 Jerusalem, Israel.)
[2] Cited in Paul Eidelberg, Beyond Détente: Toward an American Foreign Policy (LaSalle, Ill.: Sherwood Sugden & Co., 1977), p. 30.
[3] See Menachem Elon, Jewish Law (4 vols.; Philadelphia: Jewish Publication Society, 1994), II, 683, n. 16, 715-725.
[4] See below, p. 7, for a more extensive discussion.
[5] Ma'ariv, August 1, 1989.
[6] For a more extensive discussion, see below, pp. 10-11.
[7] See Paul Eidelberg, “Why Israel Needs a Constitution: A Practical Proposal” (Foundation for Constitutional Democracy), prepared for delivery at the 1997 Annual Meeting of the American Political Science Association, Washington, D.C., August 28-31, 1997.