Dei'ah veDibur - Information & Insight

A Window into the Charedi World

6 Nisan 5759 - March 24, 1999 | Mordecai Plaut, director Published Weekly







Judicial Ethics

by B. Rabinowitz

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.

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