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Professor Ruth Gavison on Judge Barak

by Ari Shavit

Ha’aretz Magazine 12 November 1999

Readers unfamiliar with the style of speech typical of the Israeli judicial system might think that the views expressed by Prof. Ruth Gavison in this interview do not deviate much from routine criticism. But her restrained tone, the understatement – so foreign to the usual Israeli dialogue -cannot conceal the fact that Gavison is assailing, 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. She served in recent years as a member of the commission chaired by former Justice Minister Haim Zadok on press laws and on that headed by former Supreme Court President Meir Shamgar to define the powers of the attorney general. She has published books on the “constitutional revolution” in Israel, and on Israel as a democratic-Jewish state. Prof. Gavison is currently Haim Cohn Professor of Human Rights in the Faculty of Law of the Hebrew University of Jerusalem and a senior fellow in the Israel Democracy Institute.

She is energetic, opinionated and mercurial. Her thinking tends toward the complex and the unconventional. At times she seems to be driven by a singular form of intellectual rebelliousness, a kind of revolutionary conservatism. Still, she debated with herself for months before deciding to make public the thoughts she expresses here. Her loyalty to the system kept her in check. But last week she decided that enough was enough and that she must speak out.

Last week a court order prevented publication of the minutes of an internal discussion held by the State Attorney’s Office concerning Avishai Raviv, a former Shin Bet security service informer. The banned document was immediately posted on the Internet and those who read it realized that the gag order had no solid basis. Many suspected that the true reason for the ban was to protect one of the participants in the meeting, who holds a senior position in the judicial system. The document’s publication touched off a furor at the top levels of the Justice Ministry and prompted its most senior officials, led by the attorney general, to mount a spirited defense of the judiciary.

1. Blanket of silence

Prof. Gavison, in recent weeks the judicial system has blocked open public discussion on several important questions through the use of gag orders.

Does this bother you?

“I don’t know anything about the memorandum whose publication was banned at the end of last week. They tell us that it is partial and misleading and irrelevant, but it is circulating, and it was clear that it would eventually be published. So the system should not try to prevent its publication, but to give us a true answer.

“The attempt to preserve the public’s trust through a policy of muzzling information is wrongheaded, not very smart and cannot succeed. But beyond this, there is also the absence of a consistent policy. The feeling exists that in certain cases there is even a superfluity of media coverage at premature stages, in a way that infringes on the privacy of those in question and that harms the effectiveness of the investigation, while in other cases there is repression and a ban on publication. This disparity raises questions. It creates the impression that there is a technique at work for giving prominence to certain issues and not others.”

Are you suggesting that the law enforcement system enforces norms selectively and unequally?

“I know the people in the system and I trust their good faith and their professionalism. I do not think they are acting from extraneous interests or out of a desire to protect themselves. But I think they are not showing sufficient sensitivity to the possibility that the fact of their being involved in a certain matter could affect their judgment. A case in point, for example, is the decision to try Dror Hoter-Yishai [the former head of the Israel Bar Association] for slurring a judge. I find it untenable that a system that is wholly tolerant and forgiving of extremely sharp statements that are made about people who hold sensitive posts, such as the prime minister and cabinet ministers, should be so sensitive regarding the possible influence of every critical statement directed at the judicial system. On the face of it, that arouses suspicion. Because a system that protects itself is a system that is suspect in the eyes of the public.

“Therefore, for the good of the system itself, these suspicions must be laid to rest. But that cannot be done as long as the system displays such a self-righteous attitude, as long as it does not prove that it is capable of criticizing itself and as long as it is not sufficiently transparent. If there is one problematic case of insensitivity you say it is coincidence. But when there is a fourth and a fifth case, that is worrying. And it is oppressive. It is even frightening.”

Why frightening?

“Frightening because justice is supposed to be blind. To do justice you have to teach yourself to be blind toward yourself. To neutralize your interests and your prejudices and your group commitments. Whereas here the feeling is that the [judicial] system is not blind, and that it is protecting itself. After all, it is unconscionable that on the one hand they will condemn conflicts of interest in the political system, but on the other hand will say that it is perfectly all right to have police officers investigate their friends or their enemies. It cannot be that they should tell us that when someone wants to appoint an attorney general and talks it over with his friends, that constitutes corruption of the system, whereas when someone wants to investigate an enemy of his and tells a friend about it, that is fine. That is a double standard which is intolerable.”

Are you concerned that what we are seeing is a pattern of the selective pursuit of justice?

“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.

“Therefore, precisely in order to protect the judicial system and the rule of law, it is impossible to go on telling us what we are constantly being told: that everything is fine and that the work is carried out substantively and professionally. That response is no longer enough. Too many people think it is simply incorrect. When you believe that there are one or two rotten apples in the barrel, you are calm. You believe that they can be removed from the barrel and that all will be well. But when the impression is formed that the rotten apples have become so much a part of the system that even the heads of the system no longer see them, then the feeling grows that the system is deeply flawed, at the roots, and that it is no longer clear whether it has the strength to pull itself up by its bootstraps.

“That is what is oppressive and frightening. Not that the system is corrupt – it is not – but that problems have arisen in it not by chance. In this situation, I expect that the system will not seek immunity from criticism but the opposite, that it will express worry and will examine itself out of its own initiative. Precisely because I truly believe that the system operates in good faith, it must be ready to expose itself to criticism.”

2. A certain pretension

How would you characterize the Israeli Supreme Court?

“Our Supreme Court is very impressive. All told, it has excellent people, it enjoys a very strong status at home and high professional prestige abroad. We can all take pride in it. At the same time, this is a court that has opened its doors to everyone and every matter and has shed almost every limitation. As such, it is very different from the old court, which was far more modest, which showed far more respect for authority and for the autonomy of the elected political authorities; it believed that justiciability has limitations and thought its role was to be a supreme professional judicial authority, not a tribunal of social reformers and moral tutors. I personally prefer the approach of the old court.”

Why?

“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 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 [Shas spiritual leader Rabbi] 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. There are many people in this country for whom Ovadia Yosef is the supreme moral authority and for whom the halacha [Jewish religious law] is the worthy supra-legal authority. The court should not ignore them. The court should not compete with Rabbi Yosef for their hearts. The court should make it clear that it functions in a different space, where it imbues and enforces the values of the common democratic framework.”

In your book on the constitutional revolution, you write: ‘There is no precedent in the world for a situation in which the court declares a supreme status for basic laws and arrogates the authority of judicial criticism of the Knesset’s legislation, without the existence of a complete document and without an explicit provision.’ Has our court assumed powers that other courts are cautious about taking?

“In Germany, Italy and South Africa there are constitutional courts that have far-reaching powers. But those courts are subject to a clear constitution and were established especially to fulfill that function; accordingly, their members are chosen by the political branches and are appointed for a limited period. In the United States there is a Supreme Court that has taken on itself the power to overturn laws, but it does this in a lengthy process and on the basis of a crystallized constitution, and its justices are appointed in a political process.

“In Israel, by contrast, 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.

“It is true that there are attacks on and threats to our judicial system, and it is true that the political system does not always protect judicial independence strongly enough. But the need to protect the court and its independence cannot justify the systematic, protracted and sweeping avoidance of any public discussion of the court’s place in our life. I do not like ideological collectivity in general and judicial ideological collectivity in particular. Certainly not in a judicial system.

Are you saying that the judicial system is too insular?

“Yes. I think it is. 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.

“I want to make it clear that my contention is directed against the system and not against the judges. Generally speaking, we have excellent judges. But a system that was the best in the world for the old court becomes inappropriate when we are dealing with a court that is a central political-social player.”

3. The price paid

Do you feel that you are paying a price for criticizing the court? For rocking the boat?

“Yes. There is a price to be paid in that community for voicing unconventional opinions, even if the opinions are well-grounded and professional and are expressed in a respectable way. I have felt this not only within my own community but also in the press. I think there are places in the press that cooperate with the exaggerated secrecy, in my opinion, regarding the judicial system and the judges in particular. In those places I am sometimes treated as an enemy of the system, as someone who provides ammunition for those who assail the courts. I am aware that there are people who are at war with the courts and could make use of my comments, and I regret that. But I don’t believe in whitewashing things. It is precisely because our judicial system and judges are so good and impressive that they must not hide behind sweeping immunity.

“I will go further: sometimes people tell me I am naive. That it is impossible to advance certain processes without a degree of paternalism. That the nation by itself will not be able to arrive, from within itself, at an enlightened, liberal state-constitutional format. And therefore, these people argue, a hush-hush policy is both legitimate and necessary. Up to a point I am willing to accept that argument. But I think that we have now reached a situation in which this enlightened paternalism is dangerous, because it is being used to play down moves that need to be raised for open public discussion.”

Give me an example.

“On the agenda now is the Or Commission reform, about which the public knows too little and does not grasp its importance. It is presented as a reform intended to lighten the heavy load of the courts, but it is in fact clear to everyone that it will not resolve the problem of the courts’ load. It is a reform that will transfer greater powers – and a heavier load – to the Magistrate’s Courts, while enabling the Supreme Court to deal only with the subjects it chooses and to retain unique power in sensitive public matters, such as constitutional issues. I think a court like that is not a good thing. But even those who think, as do many fine jurists, that such a court is an excellent thing, have to come before the public and the Knesset with clean hands and explain exactly what is being proposed. Not to bring about a change in the most basic order of the judicial regime under the guise of a technical-organizational change. That is not right. It is not fair, not
democratic and not proper.”

4. A touch of arrogance

To what extent is the president of the Supreme Court a central, formative figure in the processes you have described?

“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. But a large part of the process we are undergoing stems from the distinctive personality of the current president of the Supreme Court. This is the first time we have had a Supreme Court president who is one of the central writers in both the professional literature and the journalistic literature. He does his work by writing judgments, by closely managing the system of judges, by very closely managing the entire public judicial system, and by maintaining ramified connections with other authorities and with professional elites in Israel and internationally.

“This is something we never had before, for good and for ill. For good, because it makes the system very strong and invulnerable; for ill, because it encourages the homogeneity I talked about and the self-protective instinct that effectively prevents substantive criticism of the system. The result is that various groups in the society feel that they have been excluded from the decision-making process and develop hostility toward the courts of a kind we never saw in the past.”

Do you share the view of Supreme Court President Aharon Barak that everything is justiciable?

“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.”

What is clearly not justiciable? And which decision of the court did you find problematic because it crossed that line?

“In my view, foreign relations, the conduct of wars, social-economic policy and order of priorities are not justiciable. Nor are the political process and coalition agreements. So one of the most problematic judgments was the one that forced Prime Minister Rabin to fire [Interior Minister Aryeh] Deri before he had been indicted. I thought that was a mistaken decision on its own terms, but also one in which the court entered territory that it is forbidden to enter.

“The decision by Justice [Dalia] Dorner barring entry [by Israeli authorities] to Orient House also lacked a legal basis. I did not like the behavior of Prime Minister [Benjamin] Netanyahu, but he acted within the framework of his authority and took responsibility for the possible consequences, and the matter was part of his policy. That is a paradigmatic case of an event that is not justiciable – of something that is entirely within the autonomous purview of the prime minister. It is inconceivable for the court to intervene in such cases.”

Are you saying that our terms have become confused on this matter? That we are subordinating ourselves unreasonably to the supremacy of the law?

“I think over the past few decades a kind of despair has sprung up in Israel that stems from a feeling of mistrust of the political system. From a feeling that the political system has gone mad and is doing terrible things. So a belief developed that it is wonderful that we have one institution that is sane and excellent and can stop the madness: the special allocations to interest groups, the opening of the [Western Wall] tunnel, the corruption, the forced entry of Orient House. We have come to believe that the court will solve all our problems. And the truth is that in many cases the court does excellent things, and it does them from a sense of mission and on the basis of a deep commitment to values.

“But the court cannot solve all our problems. What we get is a kind of quick fix, which may work for a moment but does not resolve the basic problems, the problems that the political system has to resolve, the problems that our elected representatives have to cope with. The attempt to bypass our tribulations and bypass a genuine public debate over what is needed by rushing to the High Court of Justice, and the attempt to curb our unhomogeneous and non-Western and not necessarily secular elected political system by subordinating it to a homogeneous judicial system that is Western and secular – is an attempt that is doomed to failure. It is liable to foment a very grave crisis.”

Is that the reason for your reservations about the idea of a constitution for Israel?

“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 Sephardis 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.”

Do you think our court is too strong?

“I want a court that is both strong and modest, that does not hesitate to rule against the government and to protect human rights, but that is also aware of its limitations. 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.

“I want to say something personal: I hope it is clear that all my rebukes are made out of love. The courts in general, and the Supreme Court in particular, and also the investigative and prosecuting systems have made a major and vital contribution to democracy, to the protection of human rights and to the rule of law. There are elements in Israeli society that want to weaken and delegitimize them. I am fighting those tendencies with all my strength. But I believe that we must not let this struggle turn these crucial systems into sacred cows. I do not want to lend a hand to that dangerous tendency either.”

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