The recent retirement of Justices Dalia Dorner and Theodore Or from the Israeli Supreme Court prompted the usual encomiums upon the termination of long years of public service. A closer examination of the careers of both jurists, however, reveals that they exemplified some of the worst features of the Barak Court. Both manifested a high level of judicial arrogance, and both contributed more than their fair share to view that the Court is the mouthpiece for a particular political point of view rather than a neutral arbiter of the law.
Justice Or may well have conducted hearings before him in a low-key, professional style, as one news report of his retirement put it, but he will be forever remembered for his high-handed refusal to recuse himself in the appeal of El Hurwitz, CEO of Teva Pharmateuticals, from his conviction on charges of tax evasion. Or was a close friend of one of the key witnesses for the defense, of whose testimony the trial judge was extremely critical, as well as one of Hurwitz’s attorneys, who was added to the defense team solely for the Supreme Court appeal.
In such circumstances, the Code of Judicial Ethics drafted by former Supreme Court President Meir Shamgar requires the judge to recuse himself. Nevertheless Or refused to do so, arguing that the Code of Judicial Ethics is merely advisory but not binding. A full panel of the Court subsequently upheld Or’s position. Thus the same Court that has repeatedly imposed binding ethical standards on the other branches of government without a trace of statutory warrant excluded itself from the ambit of an explicit ethical code crafted by a former Court President.
Or also provided one of the most blatant examples of the Court’s politicization when he wrote the majority opinion in two cases involving issues of incitement to violence on the same day: one involving Israeli Arab journalist Mohammed Jabarin, for describing his feelings of worthiness when throwing a Molotov cocktail; and the other involving the late Binyamin Kahane for calling upon the army to wipe out the viper’s nest in Umm el-Fahm.
In the Jabarin case, Or reversed Jabarin’s conviction under a statute prohibiting publication of "words of identification with or praise of acts of violence," something that Jabarin had plainly done. Or offered a tortuous reading of the statute under which Jabarin was convicted, and limited the statute’s applicability to praising acts of violence by specific terrorist organizations. On that basis, the Arab journalist was acquitted.
Standing by itself the Jabarin decision could have been defended. Courts often read statutes that limit freedom of speech in the narrowest possible fashion. What cannot be defended is the decision being rendered on the same day as the Court’s reversal of Kahane’s acquittal by the trial court. In Kahane’s case, Or deliberately eschewed a highly plausible reading of the relevant statute that would have limited it to actions calling for rebellion or otherwise undermining the stability of the established government.
Not only was Or’s approach to statutory interpretation diametrically opposed in the two cases, but the likelihood of Jabarin’s words actually inciting others to violence was far greater. Jabarin celebrated violent action by individuals; whereas Kahane only called upon the IDF to act. The only rule that can reconcile the result in the two cases is: Arab incitement against Jews is protected speech; Jewish incitement against Arabs lands you in jail.
Dorner was no less susceptible to the charge of crafting politically motivated decisions. It was she, for instance, who entered temporary restraining order against the closure of Orient House in the final days of the Netanyahu-Barak race, an unprecedented intervention of the judiciary into the government’s conduct of foreign affairs. Though Dorner was likely correct that the closure at that particular moment had a large degree of political motivation, such inquiries into the motives of elected officials are highly questionable, as long as the action in question is within the authority of the one making it.
When the Court so desires, it is only too happy to cite the principle that it will not interfere in the government’s conduct of foreign policy. That was the reason given, for instance, for dismissing petitions against the Muslim Waqf’s illegal destruction on antiquities on the Temple Mount.
Dorner herself refused to issue an injunction against the patently illegal burial of Faisal Husseini on the Temple Mount, on the grounds that it was already too late. Yet she could not have known that, since, in fact, Husseini’s funeral procession was still hours away from entering Jerusalem. Nor did the lateness of the hour stop the Supreme Court from hearing a petition against the Rabin government’s expulsion to Lebanon of 415 Hamas members, who were already at the Lebanese border. Again, the only rule that explains the decisions is: Arab petitioners win; Jewish petitioners lose.
Sometimes the above principle must be refined to Likud government’s lose, Labor gpverment’s win. Thus Dorner dismissed a petition against Ehud Barak’s appointment of the late Yossi Ginossar as a special envoy to Arafat, despite Ginosar’s heavy involvement in the coverup of the Bus 300 affair. She relied on the fact that 16 years had passed since the affair. Yet two years later, she concurred in the Supreme Court’s rejection of Prime Minister Sharon’s appointment of Ehud Yatom, another major figure in the Bus 300 affair, as his anti-terrorism advisor.
Just as Or seemed to believe himself above the normal rules of human nature when he refused to recuse himself in the Hurwitz case, so did Dorner assume an air of omniscience when she wrote for the Court overturning the acquittal of Nachum Korman in the death of 11-year-old Palestinian. Though Dorner lacked the trial judge’s ability to view the witnesses and assess their credibility, she felt confident enough to sentence Korman to long years in prison on the grounds that there was no other plausible way to account for the boy’s death than that Korman had pistol-whipped him.
She, in effect, put the burden of proving his innocence on Korman, despite the trial judges finding that the testimony of the boy’s cousins was completely unreliable and that the autopsy by the notorious Yehudah Hiss was severely tainted by his having previously watched a "reenactment of the crime." The trial court judge also found that Hiss had failed to account for a number of pathological findings that cut against his conclusions.
IN THE PAST, the departure of Or and Dorner from the bench would have kindled few hopes for change in the composition of the Court. Until recently, Court President Aharon Barak exercised almost complete control over the judicial selection committee and could always ensure the appointment of new justices in his own image.
There are signs, however, that Barak’s hegemony is a thing of the past. In one of his few political setbacks in memory, Barak was recently unable to prevent the Knesset from expanding the Court from 13 to 15 permanent members. And just last week he suffered an unprecedented rejection of two of his candidates for judgeships by the judicial selection committee. Even more shocking, in one of those instances, his Court colleague Yaakov Turkel cast the deciding vote against Barak’s candidate.
The bottom line is that the departure of Or and Dorner could well result in the appointment of one or more justices interested in interpreting the law, not determining the country’s values according to their own enlightened views.