Recently, this column ran an article that included quotes of sharp
criticism leveled against the judicial system for its refusal to reexamine
possible errors or grant retrials for people who may have been unjustly
sentenced to jail. Since then, the President of the Supreme Court,
Aharon Barak, has managed to attack whoever has dared to criticize
the judges. And the president of the Beer Sheva Magistrate Court,
Oded Alyagon, lashed out at those who dare to criticize the judicial
system--including Orthodox Jews and members of the Bar Association.
Ha'artez, quoting a recent study, found that 11 out of 15-20
judges of the Supreme Court, including two registrars, and 50 percent
of the 112 judges of all of the other courts systems, served or represented
the State or its institutions prior to their appointments as judges.
"This seems a bit undemocratic," the paper noted, "because
the world outlooks of such judges cannot but favor the ruling authority,
and it is possible that a citizen who turns to the courts with a claim
against the State might not receive proper help."
Indeed, the article charged that "it is possible that the professional
background of the judges has affected the situation in which 95 percent
of the appeals to the Supreme Court are in the end rejected."
The paper has called for an investigation of this phenomenon "in
order to grapple with the question of whether the judicial system
issues indictments in an independent manner, without ulterior motives,
and is not subservient, in its outlooks to the executive, something
which, if proven true would endanger democracy."
At the same time this article appeared, Professor Ruth Gavison published
an article in Yediot Acharonot, in which she warned that the
State Prosecutor's decision to renew the charges against Bar Association
chairman attorney Dror Choter-Yishai for "contempt of court"
is liable to undermine the public's faith in the judicial procedure.
The original decision was "mistaken," she said, "and does
not concur with all that we have learned about freedom of expression."
The response to the appeal of the Movement for the Quality of Government
should have been simple and clear: We do not generally indict people
for their remarks, sharp as they may be.
She noted that "the mistake was compounded by the fact that the
petition to reverse the decision was presented against the background
of an attempt to disqualify Choter-Yishai from his membership in the
Committee for the Election of Judges. Now, a new appeal to disqualify
Choter-Yishai from membership in the committee has been made. I hope
that the Supreme Court will reject this petition immediately, and
enable Choter-Yishai to fulfill his function on the committee."
Professor Gavison argued that it is difficult to ignore Choter-Yishai's
claim that attempts are being made to silence him and his pointed
criticisms of the law enforcement and the judicial systems in Israel.
"Because we have no other system, we trust that the judges and
the attorneys will use their authority in such cases, with extra care,"
she wrote. "But here, this isn't the case. If Choter-Yishai would
say such things about the prime minister or one of the government
ministers no one would even think of pressing charges against him.
"The decision to renew the indictment, due to remarks he made
at a closed forum, heightens the feeling that there is a difficult
structural problem, that the judicial system is using its special
powers to defend itself and its members, in circumstances in which
it would not use its power in other contexts.
"It is especially serious when the appeal is made as part of an
attempt to invalidate Choter-Yishai's membership in the Committee
for the Appointment of Judges," she continued. "When Choter-Yishai
was indicted for tax-evasion, he disqualified himself, and this affair
resulted in "contempt of court" for which he is currently
being tried, and of which the majority of the judges of the district
court have already cleared him."
At that time, it was claimed that the indictment was really a means
of preventing him from taking part in the Committee for the Appointment
of Judges.
This time he has refused to disqualify himself claiming that the decision
to indict him is not valid, and its purpose is to effect his disqualification. This
time, he will disqualify himself, he said, only if he is found guilty.
"The Bar Association chose Choter-Yishai as its representative
in the committee, because it feels that he best represents their interests
in the struggle over the appointment of judges," Professor Gavison
said. "Apparently many of its members have reservations about
his style and manner of speech, but think that his claims that pressing
charges against him is part of a plot to disqualify him from the committee,
is not fabricated.
"Many think that Choter-Yishai's sharp and gruff defense of the
interests of the attorneys is necessary in a committee in which the
judges have much weight. The legislature also thought that the interests
of the attorneys should be represented at the Committee for the Appointment
of Judges.
"The intervention of the High Court or of the State Prosecutor
in which individual should represent the Bar Association on the Committee
for the Appointment of Judges, in Choter-Yishai's case, seems unjustified
and unwise. I am not certain that it will result in strengthening
public trust in the procedure for selecting judges.
"On the contrary, it is liable to provoke the feeling that something's
wrong there."
