by Jonathan Rosenblum
Jerusalem Post International Edition
January 19, 2001
Last month, Israel Media Watch (IMW), a media watchdog group, brought suit in the Israeli Supreme Court challenging the process by which the new plenum of the Israel Broadcast Authority (IBA) was chosen. The suit charged that the selection process followed by Environment Minister Dalia Itzik, into whose bailwick the IBA was recently transferred, complied with neither the governing statute nor previous rulings of the Supreme Court.
(It is a measure of the government’s commitment to fairness in public broadcasting – the main source of information for most Israelis – that Itzik, the Labor Party’s designated attack dog and perhaps Israel’s most ferociously partisan politician, was placed in charge of the IBA.)
In the course of arguing that the procedures followed had resulted in the appointment of a plenum totally unrepresentative of the mosaic of Israel’s multicultured society, IMW’s attorney Yoram Sheftel noted that there were no representatives of the chareidi, or ultra-Orthodox, community. Justice Michael Cheshin immediately stopped him short. ``Why should we protect the chareidi public?" Cheshin said. ``They don’t recognize us, and they only bring their cases to their rabbis."
Not satisfied, Cheshin repeated his remark. Neither of the other two justices on the panel expressed astonishment at Cheshin’s outburst or sought to distance themselves in any way from his view that the Israeli Supreme Court has no duty to protect the rights of chareidi citizens.
A spokeswoman for the Court valiantly tried to spin Cheshin’s remarks the next day. Justice Cheshin was merely questioning IMW’s authority to bring claims on behalf of the chareidi population that they themselves had not raised. But that defense was patent nonsense. IMW is a public interest group. Sheftel, IMW’s attorney, was not representing the chareidi community, but rather citing the lack of a chareidi representative as one example of how the IBA selection procedures followed by Itzik failed to achieve the requisite representivity.
No matter how one spins it, Cheshin’s declaration that the Supreme Court has no interest in protecting the rights of chareidi citizens is shocking. His position is diametrically opposed to that enunciated by Harlan Fiske Stone, Chief Justice of the United States Supreme Court, in the Caroline Products case, where he spoke of the Supreme Court’s special duty to protect ``discrete and insular minorities."
Yet Cheshin’s statement occasioned no clamor for his dismissal nor adverse editorial comment outside of the chareidi press. He currently sits as head of the Elections Commission, a position in which the appearance of impartiality is no less important than for Supreme Court justices. Imagine the hell that would have broken loose had Cheshin spoken in the same way about Arabs that he did about chareidim.
Far from avoiding even the appearance of antagonism to particular groups or individuals, the Israeli Supreme Court has gone out of its way to encourage a perception of outright hostility to the chareidi population. Thus Court President Aharon Barak has recently nominated Beersheba Magistrate Oded Alyagon for the Tel Aviv Municipal Court, despite Alyagon having publicly likened charedim to ``huge lice." That speech was delivered in Barak’s presence, and was warmly praised by him afterwards.
Even after Alyagon’s nomination was rejected once by the committee on judicial appointments, Barak insisted on reintroducing it yet a second time.
Perhaps Barak believes that donning judicial robes magically removes all taint of bias and prejudice, and that judges are automatically above suspicion of such prejudice. That would explain his consistent opposition to judges recusing themselves even in cases in which the appearance of possible bias is great.
Thus the Court recently upheld Justice Theodore Orr’s refusal to recuse himself from a case in which one of his closest friends represented one of the parties. The Israeli Bar Association’s rules of ethics, drafted by former Court President Meir Shamgar, require recusal in such a situation. Nevertheless the same Court that has repeatedly imposed standards having no statutory basis on other branches of government – e.g., ruling that ministers cannot continue to serve while under indictment -- declared the explicit rules of the Bar Associaton ``non-binding" on it.
Justice Barak and his colleagues may believe what they want about their own infallibility and immunity to bias. But charedim and other Israeli citizens can be forgiven for taking a less sanguine view of displays of blatant prejudice by Israeli justices.
Related Topics: Israeli Supreme Court
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