The severe and crude words against chareidi Jewry by the head
of the Southern Magistrates Court, Oded Alyagon, and the lack
of suitable response from the judicial system, prompted us to
take a look judicial ethics in the State of Israel. Are
Israeli judges bound by any code of ethical behavior?
Elected public officials, along with engineers, accountants,
and other professionals, are bound by published, specific
rules of ethics. Among these rules are standards of proper
conduct with the public, prevention of conflicts of interest
and a long list of other such rules of professional ethics.
The lowest-ranking employee in any municipality knows that he
may not accept any other employment and he commits himself to
keeping a long list of regulations. He knows that he is
likely to find himself out of a job if he does not follow
them.
But, wonder of wonders! We found that no member of the
judiciary is required to adhere to any ethical code whose
violation would cause him to be hauled in front of a
disciplinary court that could remove him from office.
We found, to our surprise, that a basic "judiciary" law was
enacted back in 5754 (1994). A selection committee was to be
appointed by the Chairman of the Committee to Appoint Judges
or by the President of the High Court, which would have the
power to remove a judge from office.
Avraham Sharir, Justice Minister at the time of the law's
enactment, set up the procedures for this committee several
years later. But as of today, no standards of ethical conduct
whose violation would require the removal of office of a
judge have come into use. Please note: in 5753, Meir Shamgar,
then president of the Supreme Court, devised a list of laws
of judicial ethical behavior. But, although six years have
passed, these standards have yet to have any practical
force.
This is particularly disturbing in light of Judge Shamgar's
introduction to his list of rules. "The judges' ethical
system reflects ethical values which form the basis of the
judiciary system. They serve as a declaration of guiding
principles drawn from an ancient tradition, and they include
the adaptation of these principles into practical terms to
deal with day-to-day reality."
Judge Shamgar determined that the "`Basic law: Judiciary and
Court System' does not include specific instructions for
setting up the rules of ethics; however, there is an indirect
relationship to the subject. . . .These directives prescribe
that particular judicial behavior be subject to judicial
discipline, while they do not a priori enumerate
specific cases so that one could determine whether certain
forms of behavior are acceptable or not." Shamgar himself
calls these "abstract concepts."
Ten years ago, Shamgar appointed a committee to determine
general ethical guidelines for the judiciary. The committee
members deliberated for over a year, and a number of meetings
were dedicated to this subject. Judges who did not
participate, later sent in their opinions. The long, tedious
work was finally completed, as we have said, in 5753, when
Judge Shamgar published his report.
There is no doubt that Judge Alyagon is in serious violation
of these rules of ethical conduct. We will not enumerate all
of the paragraphs which he broke. Included among them are the
prohibition of speaking out on political and party issues as
well as other issues involved in public debate, along with
the prohibition that a judge must not exhibit "prejudice or
discrimination, and will not allow his behavior to arouse any
suspicions of these."
It is sufficient that we quote one paragraph of "Section 7:
Publicity," which is directly pertinent to the Alyagon
incident. "A judge will not respond publicly to anything
about himself personally nor anything about the judiciary
system as a whole reported in the media. With the agreement
of its president, the judge will turn to the administration
of the courts and any necessary response will be made by the
administration spokesman." It is prohibited for a judge to
have any contact with journalists, especially when it will
bring him and his position notoriety.
There is no need to study Judge Shamgar's rules of ethics to
realize that Judge Alyagon transgressed ethical rules of
conduct. We can only ask ourselves why, after personally
hearing Alyagon's remarks, the current President of the High
Court, Aharon Barak, responded, "Well spoke."
If this were insufficient, as the chairman of the Board of
Attorneys, Attorney Dror Hoter-Yishai, has stated, why are we
complaining about Alyagon when only a week previously Barak
related to the same three factors in a more delicate way. We
see that this position of the Supreme Court President, Aharon
Barak, has penetrated throughout the judicial system, until
such hair-raising opinions were expressed in the infamous
lice speech of the President of the Beersheba and Southern
Area Magistrate Court.
According to Hoter-Yishai, "A judge who compares people to
lice declares thereby that he is unworthy of judging the
nation. One who is interested in conducting a political
battle against the image and the values of the State of
Israel should work in a political body and not from the
bench. The role of the judiciary is to judge the people
according to the law and to give the public the judicial
services that it deserves. A judge who relates to those
appearing before him, whether defendants or lawyers, as
`lice,' is unworthy of his position. I hope that Alyagon will
reach the correct conclusions and not consider Aharon Barak's
reaction as legitimization of his harsh words."
Professor Aharon Enker, former dean of the Bar-Ilan
University Law School, and known as one of the country's
foremost experts in the field of judicial ethics (for many
years he was a member of the Israel Bar Association ethics
committee and helped prepare the rules mentioned above) is
not satisfied, to say the least, with Alyagon's remarks. "He
spoke in an insulting, undignified manner, and in my opinion
he is simply an undignified man. . . . But he is only a human
being, and part of Israeli society which, unfortunately,
speaks this way."
In an interview with Yated Ne'eman, Professor Enker
stated that attorneys are subject to specific laws of ethics,
whereas judges are not bound by such legalities.
"Undoubtedly, it would be better if the rules were
specified."
However, Professor Enker adds that although Alyagon's words
were unworthy and a respectful judge should not express
himself that way, since he spoke in generalities and not
against any particular person there is no justification for
removing him from the bench. Enker claims that if a person
were to say similar things about the judicial system, "He
would be jumped upon for words that are out of place but it
would not be considered contempt of court."
It is hard to understand Professor Enker's statement, for it
seems to us that such harsh expression against a sector of
the population is far more serious than a comment about a
specific person. He adds, "One would expect a different form
of speech from a judge . . . and this is why his words were
so radical. This is why he was called for a "clarification"
with Barak, which essentially means a reprimand, but even if
someone uses these expressions I don't think that it can be
considered a breach of ethics. Clearly such a judge must be
severely reprimanded, and if he does not heed it the first
time, he must be reprimanded again, perhaps even publicly . .
. The existing rules are very general, so it is hard to say
that this was an ethical transgression, but there is no doubt
that this is not the correct way for a judge to express
himself."
Chairman of the Israel Bar, Attorney Dror Hoter-Yishai, says
that every year he signs orders to temporarily remove
licenses of individual lawyers because of a breach of ethics,
whereas judges have no detailed list of ethical standards to
which they must adhere. Hoter-Yishai said that the Bar has
decried the lack of ethical standards for judges on several
occasions, but nothing has been done about it. When lawyers,
engineers as well as accountants all work with specific,
binding laws of ethics, it is hard to understand how the
President of the High Court does not set his own house in
order.
