Dei'ah veDibur - Information & Insight
  

A Window into the Charedi World

22 Kislev 5760 - December 1, 1999 | Mordecai Plaut, director Published Weekly
NEWS

OPINION
& COMMENT

HOME
& FAMILY

IN-DEPTH
FEATURES

VAAD HORABBONIM HAOLAMI LEINYONEI GIYUR

TOPICS IN THE NEWS

HOMEPAGE

 

Sponsored by
Shema Yisrael Torah Network
Shema Yisrael Torah Network

Produced and housed by
Jencom

News
Secular Legal Expert Assails High

by N. Zeevi

Recent developments in the judicial sphere in Israel - notably the Deri and Netanyahu affairs and the wave of gag orders - have led the noted law professor Ruth Gavison to speak out.

In an unprecedented attack, she charged that the law enforcement system protects itself, is blind to its faults, silences its critics, pursues a discriminatory policy, is influenced by the media and forays into areas that should be off limits.

Gavison assailed, with unprecedented ferocity, the attorney general, the State Attorney's Office and the Supreme Court.

The attack is all the more striking because it comes from one of the country's senior jurists and leading experts in Israeli law.Prof. Ruth Gavison was born in Jerusalem 54 years ago and holds a doctorate from Oxford University. In the 1970s she was among the founders of the Association of Civil Rights in Israel (ACRI) and is about to complete her term as its president.

In the decade that followed she consolidated her academic status as one of the country's leading experts in the theory of law.

Asked if she is concerned that what we are seeing is a pattern of selective pursuit of justice, she replied:

"I think that large sections of the public have that feeling today. The feeling is not that innocent people are being investigated or prosecuted; the feeling is, rather, that certain people who have in fact done problematic things are being investigated or prosecuted, but at the same time, other people who did equally grave things are neither being investigated nor prosecuted.

"The unease that led to Shas receiving 17 Knesset seats in the last elections did not stem from the feeling that Deri had done nothing wrong.

"It stemmed from the feeling that at the same time as resources are being allocated to investigate the Deri affair, an indulgence that is difficult to explain is shown toward information which, prima facie, incriminates people who hold positions of equal importance regarding actions that are no less serious, and perhaps more so. And that is an oppressive feeling.

"This is what generates an uneasy feeling over the investigation of [former Prime Minister Benjamin] Netanyahu. The story that arises there is not a pleasant one, it is not sympathetic and it is not aesthetic, but the problem that bothers a large part of the public is not that Netanyahu is blameless.

"What is bothersome is the feeling that an element of persecution is present in the system. The system denies this, but the denial is no longer convincing, because the accumulation of cases has become too great. It arouses suspicion.

Regarding the High Court's approach as personified by Aharon Barak she says;

"I think it is proper for the court to give expression to our common values, such as the basic human rights. But I do not think it is right for the court to make use of its power to give priority to the values of one group in society at the expense of the values held by other groups.

"I do not think it is right for the court to decide in favor of Westernism and against traditionalism; or in favor of modernity and individualism and against communitarianism. I find that very problematic.

"I also do not think that it is the court's role to be the supreme moral arbiter of society. That was not why it was appointed, and it is also unclear that it has the necessary skills for that.

"Judges in Israel are not selected on the basis of their integrity or their ethical code or for the social leadership they have demonstrated. They are chosen on the basis of their professional ability as jurists.

"There is nothing in their training that affords them the right, the authority or the ability to determine moral norms, to be the teachers of the generation.

"The paradox is that precisely when the court purports to be a supreme moral authority, it undercuts its legitimacy as a supreme judicial authority. So it is the court itself, with its attempts at role expansion, that endangers the legitimacy of the legal system.

"Because as a supreme moral authority it is far from clear that the court is better than Rav Ovadia Yosef.

"And it is equally unclear that the supra-legal values of the enlightened public in whose name the court acts are worthier than the supra-legal values of the religious public, for example."

Asked whether the High Court has assumed powers that other courts are cautious about taking, Professor Gavison said:

"In Israel there is no crystallized constitution, there is no lengthy process and there are no justices who represent the entire society or who serve for a limited period.

"The result is a situation in which one court, which effectively appoints itself, creates the constitution by means of its interpretation of the basic laws. And this occurs without any of the control mechanisms that exist in the United States. So from this point of view our situation is quite distinctive.

"The combination of judicial criticism of Knesset legislation, in a state where there is as yet no crystallized constitution, by a court whose justices are not elected but are appointed for life by the judicial system itself, creates a very problematic situation, in my opinion.

"From the point of view of democracy and the democratic decision-making process, there is a not inconsiderable problem.

"What is equally serious is that this process is not accompanied by public discussion worthy of the name.

"In the United States, where there are activist courts, there is an ongoing, lively debate. Opinions are voiced on both sides of a question.

"Whereas in Israel, some sort of rhetoric is generated that creates the feeling that anyone who is critical of the court is the enemy of the rule of law.

"I do not accept that. I think the very opposite is true. I think that within the judicial community there are deep disputes today over all the questions on the public agenda: over a constitution, the basic laws, the status of the court, the Or commission reforms [referring to a panel headed by Supreme Court Justice Theodor Or to revamp the structure of the courts system].

"All these questions are in dispute, but generate no public reverberation because of the attempt to close ranks and create a front of homogeneity toward the outside."

As to whether the judicial system is too insular she explained:

"To begin with, there is a problem regarding the appointment of judges. Nowhere else in the world is there a situation in which judges have control over the process of appointing judges.

"It is very good that judges have input in the process, but it is very bad when they have control over it. It gives those who head the system too much power, and it turns the system into a kind of closed sect, which is too uniform and which effectively perpetuates itself.

"No important process is borne solely on the shoulders of one person. A number of judges, together with some key politicians, are involved in these processes.

In reply to whether she shares the view of Supreme Court President Aharon Barak that everything is justiciable she answers;

"No. Definitely not. Unequivocally: not everything is justiciable. I also believe that President Barak, too, does not think that everything is justiciable.

"But his method of work is first of all to expand, to forge for himself the power as a matter of principle, and then to narrow, to use it piecemeal.

"The specific decisions handed down by President Barak are, in my view, more or less correct. But it is important for him to lay down far-reaching slogans for use in the appropriate case. The problem is that not all judges are gifted with the same sensitivities as Aharon Barak, and there are judges who lose their sense of proportion regarding the boundaries of the justiciable. Because not everything is justiciable, not by a long shot."

Asked if she has reservations about the idea of a constitution for Israel, she said.

"Yes. I think such a move is problematic in terms of both procedure and substance. With regard to procedure, we have here the same danger I referred to earlier.

"We are liable to wake up one morning and discover that we have a rigid constitution without having known or seen or read or been asked for our opinion about it.

"Without a proper public debate having taken place and without broad agreement having been reached as to the values we want standing at the center of the constitutional and political arrangements of our society.

"The result will be that large segments of the public will again be left with the feeling that something has been forced on them.

"That is both wrong and dangerous. Even if it succeeds in the short term, it will be ruinous in the long term. Even though those values are the ones I espouse, I do not think they should be anchored in a constitution in that manner.

"But there is also a problem of substance here. Because in fact what is happening is that the constitution in question does two different things.

"One thing, which is agreed upon and essential, is to bolster human rights and proper administration. The second thing, which is played down and controversial, is the attempt to impose Western-secular-Jewish values on a society that has ceased to be a secular-Western society.

"There is an attempt here by the veteran elite to work through a constitution and through the court - which will rule on every constitutional issue - in order to create a conceptually homogeneous constitutional framework for a population that is today far from homogeneous.

"That framework does not take into account the values and concepts and beliefs of more than half the country's citizens: the Arabs, the religious population, the Sephardim and the traditionalists.

"And in this situation such a move can only be seen as an act of coercion. It will also very much intensify opposition to the Supreme Court, which will be perceived as imposing the values held by some of the population on the others, and annulling laws that are the result of political agreements and compromises."

Asked whether she thinks the High Court is too strong, Prof Gavinson says:

"The current court sometimes seems to me a bit arrogant. Its method sometimes recalls the method of the philosopher- king, who informs the citizens from on high what their values are supposed to be. That is very problematic from the viewpoint of democracy.

"There is a confusing use being made nowadays of the rhetoric of democracy and the rule of law in order to prevent an open constitutional dialogue between the Knesset and the court and between the public and the court regarding the proper place of the court in our life.

"This is particularly serious because while the political and public system has been democratized and been opened to new forces of the Sephardis and the traditionalists and even the Arabs, the judicial system has remained almost purely the preserve of the old elites. "Accordingly, there is no correlation between that system and the political system. In a certain sense, the judicial system serves as the last refuge for elements of the old elites who feel that the only institution that is still under their control and represents their values is the court. So they have a natural tendency to aggrandize the power of the court, and in fact to use it in order to curb or restrain the process of democratization.

"We have to be very wary of that tendency. It is liable to create the feeling that there is a group that is making use of the constitutional process in order to protect its interests and its values in the face of democratic processes which ostensibly have lurched out of control. "If that is the impression that is created, it will truly endanger the status of the court and the prospect that liberal values will be accepted as the values of the entire society. That will be a very unfortunate development.


All material on this site is copyrighted and its use is restricted.
Click here for conditions of use.