Dei'ah veDibur - Information & Insight

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25 Teves 5762 - January 9, 2002 | Mordecai Plaut, director Published Weekly









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Opinion & Comment
The High Court Causes Democratic Dysfunction

by Jonathan Rosenblum

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.

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