Two leading legal experts expressed harsh criticism against
the Israeli Chief Justice over his forgiving attitude
toward judges who express predispositions regarding
defendants before hearing all of the testimony. They say
Aharon Barak generally refuses to disqualify judges because
he perceives them as immune to human defects and sees every
judge in his own image.
A wideranging article on this topic written by Attorney Tzvi
Noach appeared in the financial newspaper, Globes,
under the headline, "Everyone is Judgeable Except the
Judges."
Noach begins with a number of examples: In response to a
request by a defending attorney to call witnesses in a
criminal case, a Tel Aviv Magistrates Court Judge got the
impression that the defendant was dictating to his attorney
how to examine the witnesses. The judge could not contain
herself and remarked: "Since I am familiar with this type,
meaning the defendant, I will not allow questions identical
to those posed in hearings at which he was not present."
Attorney Noach asks rhetorically, "Was the defendant in
danger of having his trial skewed by the judge due to the
stigma she placed on him ("this type") and due to her
overall stance as expressed by this phrase?"
After citing a few more examples, Noach concludes that in
every one of these examples, as in many other cases,
justification was not found to disqualify the judges,
despite the fact that the law provides the litigants the
right to request a judge to remove himself in cases with
"circumstances that create substantial suspicions of
partiality in the handling of the trial."
Usually these requests are rejected by the judge, in which
case the litigants have the right to file a direct appeal to
the Chief Justice, who can then elect to try the appeal
himself, or to assign another High Court justice to try
it.
The majority of appeals are tried before the Chief Justice
and his opinion on the subject is clear and final: in favor
of the judge.
Attorney Tzvi Noach notes that the judicial system creats
criticism, but the question is how willing is it to
internalize this criticism without assuming a defensive
stance?
According to Noach court attendees--plaintiffs, defendants,
attorneys, and even one minister of justice--have challenged
the judicial system, which reacts, as a rule, with open
displeasure.
The former minister of justice, who comes from outside of
the judicial milieu, believes that in order to get a real
impression of what takes place in the courtrooms he should
visit them incognito. This, he says, would allow him to
observe the judges' real day-to-day conduct under natural
conditions. The judges were not fond of this initiative
either, considering it inadvisable.
They showed a similar reaction to a recent offer by the
Attorneys' Bureau to provide feedback, an initiative that
had the judges' representatives rearing on their hind legs.
The judges tended to show an aversion to the idea of
attorneys giving them grades.
Noach writes, "The policy that the legal establishment
demonstrates toward filing requests to disqualify judges is
no different. It is an attitude of suspicion that endeavors
to restrict not only the weight given to this specific
defendant's personal impressions, but also the impressions
of a normal defendant, all presented as an unconvincing
comment on the faculties judges are supposedly endowed with.
Attorneys and litigants know that a disqualification request
has slim chances of being accepted. In recent years Aharon
Barak has been making efforts to tighten the guidelines for
disqualification more than ever before."
Noach notes that the legal establishment has always had an
approach that encourages depersonalizing the judge.
In his article, "The Honorable Judge," Professor Yehoshua
Weissman wrote, "The respect toward the individual judge
sitting on the judge's bench is not at all dependant on his
personal attributes, whether he is intelligent or a fool,
knowledgeable or ignorant, pleasant or gruff. The attitude
toward the judge is the attitude toward the trial."
On this remark Noach comments, "This is pure fiction which
may have been true in the past, but does not apply to the
present. The pretense of the depersonalized approach is
thoroughly unconvincing. In fact it eats away at the
public's faith in the judicial system. The approach
articulated by Lord Denning, according to which `judges are
not an acme of perfection, they are liable to err and to
bring about injustice. Their errors stem from lack of
knowledge, a lack of ability, partiality and even from
hostility,' represents a more accurate portrayal of the
reality."
The problem is that Aharon Barak is more amenable to the old
approach, "which miraculously makes the judge seemingly
immune to human defects." This is constantly evident in his
approach, according to which "those who seek to disqualify a
judge leave a blemish on the entire judicial system..."
Noach notes that such a determination defies all logic and
explanation. A litigant files a request to disqualify a
certain judge in a certain case based on a specific event,
and that's all there is to it. He does not want to confront
"the entire judicial system." There is no relationship
between his claims against the judge's actions and the
"entire judicial system." This is not what someone who files
a request to disqualify a judge based on subjective grounds
sets out to do, and his request is not perceived as such
when viewed objectively. In fact the opposite is true--
requests for disqualification are reviewed based on
guidelines set out by the judicial system, and the requests
filed claim that the judge is the one who deviated in this
case, based on accepted judiciary guidelines.
"It goes without saying that this apparent identification
Barak makes--between the individual judge and the judicial
system as a whole, between private claims brought against a
certain judge in a certain incident and supposedly
blemishing the entire judicial system--is a groundless
comparison designed to accentuate the gravity of the
consequences that result from the disqualification request,
and to raise the minimal requirement necessary to disqualify
a judge.
"With this as the starting point, it should come as no
surprise that (excepting rare instances) judges who make
remarks during court proceedings that indicate even the
possibility of having predispositions are not
disqualified.
"Judges who have been exposed to inadmissible evidence or a
defendant's criminal record are relied on to have `erased'
the information from their memories. In cases where multiple
defendants stand trial for the same charges, presiding
judges who express their opinion of Reuven in the decision
handed down to Shimon are relied on to have already
finalized their decision regarding Reuven.
"Judges who apply pressure on either side to accept a given
position at the beginning of a trial are relied on to
disregard this stance when the time comes, and to judge the
heart of the matter."
On this matter he points to a further example: a plaintiff
filed a suit for slander and violating manufacturing rights.
The judge did not have full command over the facts in the
case, but this did not prevent her from expressing a pointed
stance at the opening of the hearing. The plaintiff's
attorney corrected her. At a later stage the judge silenced
him by saying, "Please take your seat. I am anyway doing
your work."
Regarding this incident Noach asks, isn't a judge who takes
upon himself at the opening of a trial, without having a
proper grasp of the questions dealt with in the case, to
"tend to the matters" of one of the sides liable to wrong
the other side? According to Barak, the answer is no.
According to his approach, the "question of the Honorable
Judge's familiarity with the case...neither adds to nor
detracts from my decision in this mater."
The article also cites the opinion of legal expert Moshe
Gorali, who also noted that the disqualification of a judge
is a rare sight at the court. He says there are two main
reasons at the root of this rarity; the test and the policy.
The legal test for disqualification is a "realistic
possibility" of partiality on the judge's part. A reasonable
concern or an unsubstantiated possibility is insufficient.
The litigant who files a disqualification request has to
prove that the "game is fixed," i.e. that the judge has
already finalized his stance in terms of the outcome of the
proceedings.
"Of course this test, which is intended to lay bare the
judge's mind and soul, is almost impossible to maneuver.
Attempts to demonstrate it through the harsh remarks made by
the judge are not always enough."
He mentions a series of examples: Judge Victoria Ostrovsky
Cohen referred to Aharon Abu-Chatzera as "this type."
Another judge referred to a defendant as "this psychopath."
"There are a few more murderers who have to be heard," said
another judge.
None of these remarks were enough to disqualify a judge.
Commenting on this pattern, High Court Justice Yitzchak
Zamir said, "Judges' remarks may be grounds for regret and
sometimes may be grounds for reproach."
Gorali also claims that Aharon Barak has gone to extremes in
his clemency toward various judges.
"The Chief Justice extends his judges considerable credit.
Sometime too much. Barak tends to have pity on judges. He
also tends to view them, in terms of their conduct at least,
in his own image."
