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.
