Though our basic message about Chief Justice Aharon Barak and
the Israeli High Court is always the same -- that on a legal
and democratic basis they do not confine themselves to the
areas that befit the judiciary of a democratic society, and
that their behavior and decisions are strongly colored by
their world-view -- they periodically provide such clear,
dramatic and novel illustrations of the problems, that we can
discuss the same topic repeatedly without fear of boring our
"Everyone knows" that a modern judicial system in a free
society must not only be free of all bias but that it must
also be free of any appearance of bias. It is not enough for
the decision-makers to evaluate the alternatives
dispassionately and with a reasoned consideration of all the
alternatives that is free of undue pressures, it is also very
important that this objectivity be clear and visible to
everyone so that the judicial system is perceived as free of
any compromising taint. That is the only way to preserve the
respect of the public for the institution and woe to any free
and democratic society in which the judiciary does not enjoy
the respect and confidence of the public.
What then, should be done to a judge who says that chareidi
Jews are "human-sized lice" who are trying "to take over the
judicial system via brutal and relentless attacks and blood
libels"? Or who tells a wheelchair-bound attorney who has
difficulty reaching a third-floor courtroom that does not
have an elevator that he should have thought about such
access before deciding to become an attorney?
Such remarks indicate that the person speaking is less than
sympathetic to the broad communities that he is insulting and
attacking. If a member of the chareidi community, or a
handicapped person, is brought to the courtroom in which such
a justice sits, he would not anticipate a fair hearing,
especially if his opponent is from a social group that was
not criticized. Chazal said that intimidation is an
undesirable part of the judicial process and steps must be
taken to stop it so that the litigant may freely and
completely express his side.
This is because the judiciary must be concerned to project an
image of fairness and equal opportunity and these statements
are about as far from that as can be.
Having made such remarks, the judge was censured by the head
of the Israeli Bar Association as well as the Knesset Law
Committee. Even Chief Justice Aharon Barak summoned the judge
to chastise him for the remarks and he wrote in a letter to
UTJ MK Rabbi Avrohom Ravitz that he considers such a judge
unworthy of any promotions.
Now, just a year later, Barak is his most active champion in
his quest to move up from the Be'er Sheva court to the Tel
Aviv District Court. Even if the promotion is ultimately
blocked by public opposition (discussion of it was postponed
on Sunday), all those who were the object of that judge's
spleen, including the chareidi community and the handicapped,
have reason to be wary. Even if one would argue that the
judge is personally free of any undue bias, the appearance of
bias in the eyes of many is an established, objective fact.
The fact that the Chief Justice ignores this reality taints
the entire Israeli judiciary.