Some are more equal than others

In this country, we have a Constitution that most experts around the world believe to be one of the finest. Apparently, every genuine right that a person could think of was considered in writing it, and is somehow included. And if it wasn’t originally included, it has since been considered and brought into law.

Sounds incredible, right? However, considering the corruption in this country, could it possibly be too good to be true?

No, the Constitution is as sound as we have described, however, it’s only as good as its implementation. In the past few weeks, we have witnessed the Judicial Service Commission (JSC) interview people for positions as judges in various courts. One would imagine that, more than any other body, the JSC would be exemplary when it came to upholding the Constitution and ensuring any prejudice was not allowed.

Well, that hasn’t been our experience in watching Jewish legal beagles cross questioned by the JSC in areas that have no bearing on their positions as judges, but rather point to potential antisemitism and violation of the Constitution. Frankly, it’s extremely troubling.

I am considering here only issues pertaining specifically to the Jewish community and Jewish people who underwent JSC scrutiny, not any of the others.

When Judge David Unterhalter was interviewed two weeks back – or should I say interrogated, as that’s how it felt to me as I watched – it followed a very distressing antisemitic complaint by the South African Boycott, Divestment, Sanctions (BDS) Coalition. While we have discussed this complaint at length, in a rough summary of it: BDS smeared the South African Jewish Board of Deputies’ (SAJBD’s) name, and by virtue of his connection with it, Unterhalter’s as well.

This obviously got to the JSC, and during the “interview”, individual members intimated that by virtue of the fact that Unterhalter had been on the SAJBD for some months, it somehow meant he might not be “constitutional” or “support equality”. The line of questioning was ugly. It also unfairly painted the SAJBD as an organisation opposed to human rights rather than one that fights to enable South African Jews to live a prejudice-free life in South Africa.

I wondered if this was only because of the BDS complaint. And why was it even allowed by a body that should be the absolute upholder of the Constitution? I mean, we’re talking about the initial selection committee for Constitutional Court judges, no less. The line of questioning was uncomfortable and frankly, unacceptable. It’s true, everyone vying for these positions gets put through the question-firing committee, but some questions don’t fall into the appropriate category, and Unterhalter got those.

Fast forward to last Friday, and Advocate Lawrence Lever underwent his interview for a position as a judge in the Northern Cape. He has been acting as a high court judge for five years already. After answering “no” to having been on the SAJBD, he was tackled about what it meant to have an allegiance with the board, as if it (once again) was some dubious organisation. All this was pointed, as it had been with Unterhalter, to South African Jewry’s allegiance with Israel, the Jewish state. And by virtue of having any allegiance, it meant that they (or we) support human rights violations. Talk about a leap of judgement! Talk about tarring and feathering us all…

But with Lever, it didn’t end there. He was then questioned about whether he observed Shabbos. The question led to the idea that if he was shomrei Shabbat, itcould get in the way of him doing his job as a judge properly because he might not be willing to work on a Friday night or Saturday. Astonishingly, no Christian, Muslim, or person of any other faith faced this line of questioning. Again, I come back to the fact that we’re talking about seats for judges on our judiciary, and these questions were, in my opinion, unconstitutional.

As Jews, we have the right to observe our religion, and we have the right to have a body that protects us. We also have the right to an affinity with another country. It should never be allowed that we – or anyone else – should be demeaned or not given a position because of this.

Now, I cannot say categorically that Judge Unterhalter wasn’t shortlisted for Constitutional Court judgeship because of antisemitism or because of his allegiance with the board. Although I know that some people have questioned my saying that I believe it was also due to the fact that he was white, privileged, and didn’t have that many years as a judge behind him, it certainly didn’t work in his favour.

As for Lever, well, we’ll see.

The point is that, with our incredible Constitution admired throughout the world, we should never be subjected to this, especially in the name of the JSC. If the Constitution was properly implemented, this would be stopped immediately and only questions that are fair and reasonable would be allowed. Surely those who bring up these kinds of questions should be censured?

I must say that as we consider what Freedom Day means to us this week, it’s sad to think that 27 years ago, we celebrated the rainbow nation. This amazing concept meant all South Africans were equal, and race, religion, gender, etcetera weren’t going to get in the way of our beloved country. Perhaps we need to rethink how we implement our Constitution, and what we’re all doing to recreate that rainbow nation so that we can build the country of our dreams.

I, for one, want to live in a country where we’re all equal before the law, Jewish or not.

Shabbat shalom and chag sameach!