Better of Two Evils

The question is whether there is a reasonable chance of a referendum blunting opposition to disengagement, when it is patently clear that a Knesset vote relying on votes from the left would be inadequate.

Proposals to hold referendums in Israel, which have found their way onto the public agenda ever since the 1950s, have been weighed as a device for promoting "participatory democracy," in which the people's voice is heard on major issues. This argument is partly supported by the fact that referendums have become an inseparable part of the public system in democratic states.

The call for holding a referendum on disengagement, issued by numerous Likud cabinet ministers and members of Knesset and by the leaders of the Yesha [West Bank and Gaza] settlers' council, is not based on purely constitutional principles. The present-day call for a referendum is rooted in the serious argument that only a decision by the people as expressed in a referendum could provide the legitimization required for the cabinet's and the Knesset's decisions on the issue of disengagement.

The question that should be asked now is not whether such a referendum could prevent conflict in the event of a majority of the voters favoring disengagement. The question is whether there is a reasonable chance of such a referendum blunting opposition to disengagement, when it is patently clear that a Knesset vote that would rely strongly on votes from the left would be inadequate. It would be hard to dismiss the possibility that a referendum in support of disengagement would impart a legitimacy to the prime minister within his party and among the public. This would have at least some effect on a decision by the settlers with respect to avoiding a violent conflict.

A decision to hold a referendum now, which could be approved with the same regular majority that is required to pass a Basic Law in the Knesset, ought to be seen as the best of two evils - even by those who for various reasons are opposed to a referendum. The need for a referendum, which could be held within three months of the decision to hold it, could also be based on the increasing number of reports of rabbis who have been calling on soldiers to refuse orders to evacuate settlements. The statement by Rabbi Moshe Shapira, head of the Merkaz Harav Yeshiva and a former chief rabbi, that evacuation of settlements is on the same plane as "desecration of the Sabbath, or like eating unkosher meat," is an implicit call to disobey an order that would at some point in the future be given, by virtue of legal authorities vested in the state.

Prime Minister Ariel Sharon is correct when he says that refusal to follow military orders, from any side of the political spectrum, can lead to "destruction and ruin." The rabbi's words do not merely make it permissible for soldiers to refuse to take part in evacuating settlements. They also grant legitimacy to the settlers themselves to prevent their own evacuation by policemen or soldiers, with force. The statement contains the nucleus of the destruction of the foundations of the rule of law in a polarized society. They reflect a step up in the calls to disobey the law. These calls are being issued by the spiritual leaders of religious Zionism at a time when an order to evacuate is a reasonable likelihood in the near future.

Given Rabbi Shapira's status, the serious nature of his statement and the forum in which it was made (an interview with the widely distributed religious weekly, Sheva), it would be easy to be lured into invoking the codes of criminal law against him. Such a decision would widen the rift and give Shapira an excellent stage from which to voice his sentiments. Thus it would seem that putting the rabbi on trial would not be considered a "matter of public interest," as required by law, at a time when it is clear that the damage to Israeli society by such a trial would exceed its benefits.

The choice not to put the rabbi on trial, and the rejection of MK Haim Ramon's demand that the attorney general give instructions to do so, does not release the attorney general from his obligation to apprise the rabbi of the seriousness of his statements and the danger they pose to Israeli democracy. The current situation requires - even prior to enforcement of the law - taking action to reinforce the legitimacy of decisions that could be taken by virtue of the law. A referendum can serve at this time as a device for legitimization of the scriptural principle of "following the majority," which is the essence of the rule of law when it comes to public and private authorities.

A referendum is a worthy, if imperfect, device against the refusal to obey the orders of a legal government. Public commitment by the settlers and their rabbis to accept the "law of the kingdom" in the event of a decision to disengage could motivate at least some of the opponents of a referendum from supporting it. In any event, it would be worth trying out the referendum device now, given the circumstances that have come to pass, so as to gauge how much it might contribute to strengthening Israeli democracy.