I share the "ethical concerns" that led the Israeli Supreme
Court last week to reject Prime Minister Sharon's appointment
of Ehud Yatom as his anti-terrorism advisor.
Few could read the description of the killing of the
terrorists taken alive from Bus 300 in 1984 without being
sickened. Yatom and General Security Services operatives
killed the two terrorists brutally. The coldness required to
carry out such a killing is hard to imagine.
Nevertheless Yatom's claim that it was standard procedure in
1984 that no terrorist who took hostages would escape alive
and that the highest political echelons turned a blind eye to
this practice -- appears true. A presidential pardon was
practically forced upon Yatom, Yossi Ginossar, and other GSS
operatives in 1986 precisely to prevent them from raising
this defense in criminal proceedings. And the fact that Yatom
continued to serve in the most senior positions in the GSS
until 1997 further demonstrates that his actions were the
norm.
But even if one were to grant that Yatom's killing of the two
captured terrorists should not stand in the way of his
appointment seventeen years later as the prime minister's
advisor on terrorism, there remains his almost equally
appalling perjury before two governmental commissions
investigating the Bus 300 incident. Yatom testified that he
had seen Yitzhak Mordechai, the military commander whose
troops had rescued the captives aboard the bus, bludgeoning
the two captured terrorists with his pistol.
Mordechai was the GSS's designated fall guy. In order to save
his own career, Yatom was prepared to end Mordechai's.
Agreement with the concerns raised by the Supreme Court about
the Yatom appointment, however, does not constitute approval
of the Court's decision. As is often the case when the Court
takes on the role of creating norms for the elected branches,
there is a certain suspicion that ideology and the identity
of the parties played a not insignificant role in the
outcome.
Last year a Supreme Court panel, which included two of the
three judges who ruled against Yatom, upheld then Prime
Minister Ehud Barak's appointment of Yossi Ginossar as a
negotiator with the Palestinian Authority. Ginossar's
involvement in the GSS cover-up of the Bus 300 incident was,
if anything, more egregious than Yatom's. Even while he
served as the GSS representative on the Zorea commission
investigating the incident, Ginossar was busy coordinating
with Yatom the false testimony to be given to the commission.
Retired Court President Moshe Landau rightly characterized
Ginossar as a "Trojan horse'' on the commission.
Yet Justice Dalia Dorner, who concurred in last week's
decision rejecting Yatom's appointment, dismissed MK Tzvi
Hendel's petition last year against the Ginossar appointment
on the grounds that 16 years had already passed since Bus
300. Justice Tova Strasbourg-Cohen, who also sat on both
panels, managed to write a three-page concurring opinion last
week, without once mentioning the Court's decision last year
to uphold the Ginossar appointment.
There is, however, a more fundamental flaw in the Court's
decision. Not once in his opinion did Justice Yehoshua Matza
point to any statutory criterion governing prime ministerial
appointments that Prime Minister Sharon violated. Nor did he
find it necessary to point to any source in statute or basic
law conferring on the Supreme Court the power to review such
appointments.
True, the Barak Court has long asserted that power, but its
exercise constitutes a usurpation of powers never granted the
Court and not claimed by other supreme courts around the
world. Chaim Tzadok describes a meeting between British
jurists and lawyers and their Israeli counterparts that took
place just after the Barak Court ordered the dismissal of
Aryeh Deri as a minister. The British jurists expressed
amazement that an Israeli court would ever intervene in the
appointment of ministers. To which the Israelis replied: Can
you imagine a British prime minister appointing a minister
under criminal indictment?
From this exchange, Tzadok derives the lesson that it is the
task of the Israeli Supreme Court to teach us what, as the
British say, "simply isn't done." That is the wrong
lesson.
Admittedly political norms in Israel are shockingly low and
the Knesset often dysfunctional. The cure, however, is not
for the Court to step in wherever the Knesset has failed and
to provide us with its own set of norms. An overreaching
Court is not only a symptom of democratic dysfunction but one
of its causes. The Court has caused the healthy democratic
instincts of Israeli citizens and legislators alike to
atrophy.
The argument for democracy, it should be remembered, is not
that the decisions emanating from popularly elected
legislatures are inherently wiser or more just than those
enacted by a Council of Platonic Guardians. Rather democracy
is predicated on the inherent equality of each person, and is
designed to give each citizen an equal say in the major
normative decisions governing his or her life. Through the
exercise of that right democracy holds out the promise of
developing a citizenry worthy of self-governance.
Ha'aretz describes the Israeli Supreme Court as the
repository of "all basic human values." Democratic theory,
however, rejects as a matter of principle the idea that any
unelected and unrepresentative body should determine the
basic values of society.
In a properly functioning democracy, elected officials fear
repudiation by the voters more than the strictures of the
high court.
Leaving everything to the Court in Israel has led to an
apathetic and lethargic citizenry. Rather than raising norms
of political behavior, reliance on the Court has prevented
their development.
Jonathan Rosenblum is a columnist for the Jerusalem
Post (in which this first appeared) and director of the
Jerusalem office of Am Echad.
