Bad faith and shoddy goods

Israeli Supreme Court President Aharon Barak and Justice Minister Tommy Lapid succeeded in ramming through State Attorney Edna Arbel’s appointment to the Supreme Court. That victory, however, may yet turn out to be a pyrrhic victory for the clique that controls Israel’s legal system. For it has exposed as never before Israel’s uniquely corrupt system of judicial selection, in which the Court President, aided by a reliably compliant Justice Minister, effectively controls all judicial appointments, thereby assuring that the Court remain a self-perpetuating cult.

Predictably, critics of the Arbel appointment were attacked as a cabal of right-wing fanatics threatening the rule of law. Their crime: daring to criticize the merits of the appointment itself and the failure of the judicial appointments committee to investigate the very serious charges against Arbel, whose appointment was agreed upon far in advance of the committee’s deliberations by Barak and Lapid.

Given the seriousness of the charges against Arbel, and the lack of any convincing rebuttal the attack on her critics as threatening "the rule of law" smacks of Orwellian inversion. The talismanic citation of the "rule of law" only exposes the degree to which fears of "undermining the rule of law" are employed to silence critics of the Court and its jurisprudence. Even Ha’aretz, which can normally be counted on to automatically leap to the defense of the Court and its President, admitted editorially that legal abilities had little to do with the latest round of judicial appointments and that the choices were cooked far in advance of the deliberations of the judicial appointments committee.

By vesting the united bloc of three Supreme Court justices on the nine-member appointments committee with control of the process, current system of judicial selection ensures that no one whose judicial philosophy differs from that of Barak and his hand-chosen colleagues will ever be selected to the Court. Thus Professor Ruth Gavison, an internationally renowned constitutional law scholar and the founder of the Association for Civil Rights in Israel, never had a chance due to her persistent criticism of the judicial activism of the present Court.

At the same time, Arbel, whose legal abilities even Ha’aretz questioned, been been considered a virtual shoe-in for the Supreme Court ever since her appointment as State Attorney. The same is true of former Attorney-General Elyakim Rubinstein. No matter how lackluster their performance, no matter how frequently they found themselves embroiled in controversy once anointed by the legal establishment their appointment was assured. Arbel, for instance, brought unsuccessful prosecutions against at least half-dozen public figures.

Arbel’s deficiencies, however, go far beyond the failure to secure convictions in a number of highly public cases. When Yaakov Neeman was appointed Justice Minister by Prime Minister Binyamin Netanyahu and let it be known that he had severe criticisms of the government legal system, State Attorney Arbel and then Attorney-General Michael Ben Yair wasted no time in ensuring that Neeman would never have an opportunity to reform the system.

Uri Elitzur wrote in the November 12, 1999 Yediot Acharonot, that Ben Yair told a meeting of top prosecutors shortly after Neeman’s appointment that he would make sure that the "new dog" would leave no scratches on the furniture. He made clear the "dog" he had in mind was the religiously observant Ne’eman by reading a satiric article about the practices of religious Jews.

Arbel and Ben Yair then reopened a file against Ne’eman, which had lain dormant for four years, knowing full well that their chances of securing a conviction were nil. Not that they cared. They also knew that it would be sufficient to issue an indictment for Ne’eman to be forced to resign. And that is exactly what happened. Ne’eman’s subsequent complete exoneration by the trial court and the court’s harsh criticism of the prosecution for bringing a groundless case was irrelevant. The mission was accomplished.

The prosecution’s bad faith is clearly established. Orders were given to the police not to include any recommendation as to whether to prosecute in the file, knowing full well that the recommendation would be negative. In addition, orders were given to the police not to interrogate the only relevant witness in the case, despite the latter’s pleas that they do so.

Thus with Arbel’s appointment, someone who, in the words of Maariv editor Amnon Dankner, "fabricated a case against an innocent person and obstructed justice in order to pursue a purely political and ideological agenda," will sit on the Supreme Court.

Arbel did not only use her power for ideological purposes. Education Minister Limor Livnat charged in a letter to the judicial appointments committee that Arbel had approached her when she was Minister of Communications soliciting an appointment for her husband Uriel to a government directorate. It is undisputed that Livnat did meet with Uriel Arbel about the appointment though his wife claims that someone else approached Livnat. Signficantly, at the time of the alleged approach to Livnat, Arbel was weighing a number of legal complaints against Livnat. Despite the extraordinary nature of Livnat’s charges, the appointments committee spent no time investigating them.

Nor was that the first time Arbel was accused of using her position to benefit her husband and thus herself. At a time, that the police file recommending prosecution of then Prime Minister Ehud Barak for Election Law fraud was on her desk, Barak decided to appoint Uriel Arbel to the board of the national shipping company Zim. According to investigative journalist Yoav Yitzchak only the revelation of the intended appointment by the media caused its withdrawal

Arbel has also been a full participant in the techniques developed by the prosecutorial arm of the legal establishment for keeping leading politicians in line. One way in which this is done is by opening criminal investigations and then leaving them open indefinitely. Dan Tichon, a former Likud MK and currently chairman of the Israel Ports Authority, accuses Arbel of ignoring an order of the Supreme Court to conclude an investigation of charges against him by a specified date. Investigative files of Deputy Prime Minister Ehud Olmert and Knesset Speaker Ruby Rivlin have been open for three years. (When Rivlin’s name was mooted as a candidate for Justice Minister, the existence of the file was immediately leaked to the press. Interestingly, Rivlin has been a long-time critic of the Supreme Court.)

Arbel herself leaked to the press her recommendation to prosecute Prime Minister Ariel Sharon in the Greek Island affair, and she is accused of having tried to block publication of the name of Liora Glatt-Berkowitz, the prosecutor who leaked information of the investigation to the press prior to the last election. Arbel was an ardent defender of Chief of Criminal Investigations Moshe Mizrachi, whose dismissal was recommended by then Attorney-General Elyakim Rubinstein, for having conducted wiretaps of political figures far in excess of court orders and maintaining massive dossiers marked "political" of the material collected. Arbel’s long letter defending Mizrachi was also leaked to Ha’aretz.

Court President Barak and Justice Minister Lapid may have been celebrating last week. But they may yet rue shoving such shoddy goods on the Israeli public. Certainly they have done more to undermine the prestige of the Court than a hundred critics of the Court could ever have done.