OP-ED

Can a judge not ask for both sides to be heard?

By Warren Goldstein 1 July 2020
Caption
Chief Justice Mogoeng Mogoeng. (Photo: Alet Pretorius / Gallo Images)

What could be more just than an insistence that both sides be heard? What could be more fair-minded than a call for both sides to work together to resolve this conflict?

Last week I had a public conversation with Chief Justice Mogoeng Mogoeng, hosted by The Jerusalem Post. We were talking about how to overcome the formidable challenge of racism, with a focus on how to actually address it at root. During the course of that discussion, the conversation drifted to the topic of Israel. 

The chief justice expressed his view that the ANC government’s approach to the Israeli-Palestinian conflict was misguided; that in taking a one-sided approach to the conflict, ostracising Israel, and failing to take into account the complexities of the conflict, “we are denying ourselves a wonderful opportunity of being game-changers in the Israeli-Palestinian situation.” 

Invoking the example of Nelson Mandela, he called for greater objectivity and a more balanced approach that would allow South Africa to engage in good faith with both sides and play an active role in peace-making – something that would be very welcome given South Africa’s history of overcoming a seemingly intractable conflict. 

“We know what it means to be at loggerheads, a nation at war with itself,” he said. “The forgiveness that was demonstrated – the understanding and big heart displayed by [former] President Nelson Mandela, and we, the people of South Africa – is an asset we must use around the world to bring peace when there is no peace and to mediate effectively based on rich experience.”  

As he made these remarks, I thought to myself that Justice Mogoeng’s position – his call for balance and objectivity, and deeper engagement – was actually an extremely judicious one. What could be more just than an insistence that both sides be heard? What could be more fair-minded than a call for both sides to work together to resolve this conflict? 

I was taken aback at what happened next. The ANC released a blistering statement, savaging the chief justice for this position, for “entering the arena of political commentary”, and for supporting Israel. This statement then unleashed a media firestorm. Op-eds accused Justice Mogoeng of “judicial overreach”, of having “failed to recognise that Palestinians also have human rights”, of supporting “a modern-day colonial genocide”. 

Incredibly, one writer even accused the chief justice, a stalwart of the Black Consciousness Movement and a fierce anti-apartheid struggle veteran since he was in high school, of being oblivious to the black rights movement. A complaint was lodged with South Africa’s Judicial Service Commission. And the ANC has now urged the Speaker of Parliament to hold “high-level talks” with Justice Mogoeng regarding his political views. 

This extreme reaction – this vilifying and misrepresentation of a balanced position taken by the chief justice, which has spilled over into vicious personal attacks – is disturbing. The main pretext for these attacks, certainly by the ANC, is that it was inappropriate for a judge to speak out and pronounce a personal opinion on matters of public policy; that he should reserve his judgments and opinions for the courtroom. 

The double standards are breathtaking. 

Over the past few years, there are innumerable examples of judges – even Constitutional Court judges – speaking out on matters of public policy, sometimes on this very same issue. One example is a fellow Constitutional Court judge, Edwin Cameron, who has attacked Israel on multiple occasions on numerous public platforms. He even joined a very public visit to Israel alongside a group of anti-Israel activists with the clear purpose of vilifying Israel, meeting exclusively with Palestinian and anti-Israel activists without any interest in hearing the other side. 

The point is, no one who truly understands the brutality and the systematic racism and denial of basic human rights that made apartheid infamous, could possibly use the word in a discussion relating to the Israeli-Palestinian conflict – a territorial, political, religious, cultural dispute concerning national identity and borders.

The political views of Justice Cameron and other judges are well-known and well-documented. The idea that judges do not have, and do not make known, their own political views is, indeed, a fallacy. Judges, like other human beings, have their own values and ideological views.

More to the point, it seems acceptable for judges to speak out publicly on these issues as long as they toe the party line, and their views are in accord with the positions of the political and societal establishment. It’s only when those positions are challenged that there is an outcry over a judge having “entered the arena of political commentary”, and there is an attempt to shut down debate entirely. It is the attempt to silence and vilify any voices that dare offer a different perspective on issues that is most disturbing.

We need to be open to hearing the perspectives of both sides. Let’s look specifically at the Israeli-Palestinian conflict. There are divergent views on how to interpret this conflict, which makes it wholly different from the struggle against apartheid in South Africa. 

The National Party government in South Africa openly instituted a raft of legislative measures, to entrench race-based separation, and obliterate the economic, political and cultural freedoms of an entire race of people. It openly denied the right to vote to non-whites, and passed laws discriminating against people of colour. The facts were clear, and never disputed, not even by the Nats themselves. This was the systematic oppression of a people and the denial of basic human rights on the basis of skin colour. There was no moral ambiguity about the campaign against the apartheid government. 

By contrast, with the Israeli-Palestinian conflict, there is a strong argument to be made for the justice of the cause of the State of Israel. It is an argument that I believe in passionately. I realise, of course, that I am biased, as a Jew, as a rabbi; but I also maintain my stance on this issue is reasonable and emerges naturally from a number of key indisputable facts – and it is a stance held by many other faith leaders and governments around the world. 

The fact is, Israel is the only free democracy in the Middle East. Within the sovereign borders of the State of Israel currently exist 1.8 million Muslim and Christian citizens who are the equal of their Jewish compatriots in every conceivable way. They participate side by side in elections as part of one voter role, and hold high-ranking positions throughout the various levels of Israeli government, including Parliament and the Supreme Court. They serve in law enforcement and even in the army. There are none and have never been separate facilities for Jews and Israeli Palestinians; all across Israel, schools and universities, benches and beaches, buses and hospitals, are unsegregated in any way, and every Israeli citizen, no matter their ethnic or religious origin, has complete and full legal rights.

Israel has none of the apartheid legislative machinery designed to discriminate against and separate people. It has no Population and Registration Act, no Group Areas Act, no Separate Representation of Voters Act, no Separate Amenities Act, or any other of the myriad apartheid laws. On the contrary – Israel is a vibrant, liberal democracy, with the kind of imperfections you will find in any free society, nevertheless according full political, civil and other human rights to all.

There is, however, an ongoing and bitter dispute around establishing a Palestinian State in the West Bank and Gaza (which, before they were under Israel’s jurisdiction, were Jordanian and Egyptian territory, respectively). These negotiations have been tortuous and protracted and currently are in limbo. Israel has tried desperately, over many decades, to make peace and to come to some kind of resolution (see Ehud Barack’s offer at Camp David – 91% of the West Bank and all of the Gaza Strip; Ariel Sharon’s unilateral disengagement from Gaza in 2005; Olmert’s offer in 2008 – 93% of the West Bank, perhaps even more).

Unfortunately, all of these overtures were rejected and, indeed, met with terror attacks and mortar rockets. Israel wants nothing more than peace – and is willing to pay a huge price for it – but, tragically, there has never been a true peace partner on the other side. Just this last week, Benny Gantz, Israeli defence minister and incoming prime minister, offered to go to Ramallah to restart negotiations immediately.

The point is, no one who truly understands the brutality and the systematic racism and denial of basic human rights that made apartheid infamous, could possibly use the word in a discussion relating to the Israeli-Palestinian conflict – a territorial, political, religious, cultural dispute concerning national identity and borders.

Though I believe this analysis to be true and accurate, anyone is within their rights to disagree with me, and I would do nothing to silence that person. On the contrary, I would welcome an open, rational debate on the subject. Let us engage with the facts. Let us engage with the arguments. Let us have open dialogue. Let us hear all sides. Let us have real, good-faith discussions on all of these issues. Let us talk to and hear one another. Let us not silence those who disagree with us.  

There will never be a peaceful resolution of the Israeli-Palestinian conflict – or any other conflict – without a commitment to openness to hearing both sides, to real dialogue. If we are going to shut down debate and not allow one side to be heard, then we will never get to solutions. 

South Africans deserve to hear both sides of the debate. Unfortunately, with savage attacks like those on Chief Justice Mogoeng, and the ceaseless efforts of various organisations and lobby groups to silence dissenting voices and to shut down the debate altogether, many aren’t. Consider for a moment how extreme this is. The chief justice did not even express support for the policies or actions of the State of Israel. All he said was that we need a more balanced approach, and that the South African government should be engaging with both sides to make peace.

The suppression of any attempt to rationally engage with the subject and utter contempt for freedom of expression is such that even the most moderate view that doesn’t utterly condemn Israel is totally rejected and deemed unacceptable. 

Of course, much of the anger directed at Chief Justice Mogoeng is a reaction to his open profession of his Christian faith. He spoke of his belief in the Bible and his worldview is moulded by it. He also spoke about the power of prayer and his belief in Divine providence. Such public demonstrations of faith have also been deemed unacceptable by the political establishment. Like political beliefs, religious faith, too, needs to conform to a pre-established narrative. It, too, must toe the party line. 

Ironically, both his expressions of support for Israel and of his religious faith resonate deeply with the majority of South Africans, whose voices on these issues are also not heard.  

There will never be a peaceful resolution of the Israeli-Palestinian conflict – or any other conflict – without a commitment to openness to hearing both sides, to real dialogue. If we are going to shut down debate and not allow one side to be heard, then we will never get to solutions. 

Ultimately, this was all Chief Justice Mogoeng was asking for – a balanced approach to a complex problem, a fair hearing for both sides. Ironically, he was applying the approach of a fair judge, asking for both sides to be heard and giving all parties a chance to find a just and lasting solution. For that, he was savaged – a symptom of a wider, global malaise that imperils the democratic values we hold dear.

Freedom of expression, not only in South Africa, but around the world, is under siege. People are hounded and vilified for daring to challenge the prevailing establishment positions. Cancel culture has cost thoughtful, well-meaning lecturers, journalists and public servants their jobs and their reputations. Debates around the Israeli-Palestinian conflict, and other similarly complex issues, have been flattened by an intellectual tyranny. These efforts are an undemocratic suppression of dissent and open dialogue through the politics of vilification and intimidation.

To hold the world together, we need to rededicate ourselves to open dialogue, to the pursuit of peace. We need to rededicate ourselves to finding solutions – to giving people a fair hearing and listening to all sides of an argument. And in doing so, we will create the conditions for peace. This is the only hope for bringing peace between Israelis and Palestinians. Real peace. A sustainable, harmonious peace. The only way is through the unwavering commitment to justice and fairness for all. 

All Chief Justice Mogoeng asked for was balance and a fair hearing for both sides in the pursuit of peace. If he is vilified simply for that, what chance does peace have? DM

Dr Warren Goldstein is the Chief Rabbi of South Africa, and has a PhD in Human Rights and Constitutional Law.

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