Former Supreme Court Justice Dalia Dorner expresses her fear for the future of Israeli democracy
By EETTA PRINCE-GIBSON02dorner(photo credit: )Extract of an article in Issue 2, May 12, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
"And as for me, I will simply go on my way." That is what former Supreme Court Justice Dalia Dorner told the guests of the court when she retired from the bench in March 2004.
But on a sunny, cool Friday morning in early April, Dorner, 74, is still in her office in the Supreme Court building, dictating instructions to a serious-looking law clerk in her no-nonsense tone. Since her "retirement," Dorner has become president of the Israeli Press Council, is heading a public commission to investigate the degree to which past and current government officials have fulfilled their commitments to support Holocaust survivors and has taken on numerous other public tasks. And she has become an in-demand and frequent teacher and lecturer on the status of human rights in Israel.
"I can't just go on my way," Dorner tells The Jerusalem Report in an extensive interview in honor of Israel's 60th anniversary. "I am worried about the future of democracy in Israel. I am frightened that everything that we have built over these 60 years will be destroyed."
The monumental Court building, never in regular session on Fridays, is almost deserted. Through its large windows, the neighborhoods of Jerusalem - the busy Mahane Yehuda open market, bohemian Nahlaot, Brahmin Rehavia, ultra-religious Shaarei Hesed - seem tranquil, containing the tense complexity which is Israel today and which the judges are often called upon to reconcile.
Supreme Court judges come to the public's attention most frequently when they sit on panels in the framework of Israel's High Court of Justice (Bagatz, as it is commonly known, according to its Hebrew acronym). In its operation and method, Bagatz is a distinctly Israeli institution, in which the Supreme Court rules as a court of first instance, primarily on matters regarding the legality of decisions by the government, local authorities and other persons or organizations performing public functions; challenges to the constitutionality of laws enacted by the Knesset; and matters in which the court considers it necessary to grant relief in the interests of justice for an individual or a group.
In her ten years as a Supreme Court justice, Dorner sat on panels of Bagatz that dealt with some of Israel's most controversial cases, including recognition of the right of women to serve as pilots in the Israel Defense Forces; decreasing the sentence of a battered wife who killed her husband, thereby setting a precedent that essentially recognizes "battered woman's syndrome"; recognition of the right of the same-sex partner of an El Al flight attendant to receive the same benefits that El Al grants to all spouses of its workers; the obligation of the Interior Ministry to recognize conversion certificates issued according to the norms of the community in which the individual lives (including Reform communities abroad) and requiring military authorities to allow personalized epitaphs on soldiers' headstones, ruling that "every child is an only child to his parents."
And prior to her appointment to the Supreme Court, while a District Court judge, Dorner presided in 1987-1988 over the case of John Demjanjuk, tried under the Nazis and Nazi Collaborators (Punishment) Law of 1950, based on his identification by Holocaust survivors as the notorious SS guard at Treblinka, "Ivan the Terrible." Dorner sentenced Demjanjuk to death; his conviction for crimes against humanity was later overturned by the High Court finding of a reasonable doubt
In this fractured society, most of her decisions have raised a storm of arguments against the court, contending that they were evidence of Bagatz's excessive involvement in matters best left to government and the court's alleged left-wing bias. But for Dorner, her decisions were merely an expression of the courts' obligation to act to implement legislation enacted by the Knesset itself.
Dorner's small office is quiet and airy, with pictures of her grandchildren decorating her desk, softly colorful landscape lithographs on her walls and books on law and society filling the shelves. She lovingly jokes about her children and grandchildren, as outspoken about them and their decisions as she is on matters of law. But then, in a somewhat abrupt transition, she gets right to the point of the interview. Throughout, she is in complete control, speaking in nearly full-length, well-articulated paragraphs. She sets the agenda, yet remains attentive, responsive and accessible - a woman who knows how to wield power effectively, but with kindness.
Before she is even asked a specific question, she states categorically, "He is destroying Israeli democracy."
"He" is Justice Minister Daniel Friedman, who took office in February, 2007. A long-time outspoken critic of what he refers to as the "elitism" of the courts, Friedman, an Israel Prize laureate, has been embroiled in a very public, often very personal, controversy with former chief justice Aharon Barak and current Chief Justice Dorit Beinisch.
Unlike in the United States, the head of state does not control appointments to the Supreme Court. The number of justices is determined by the Knesset; judges are nominated and approved by a nine-member panel composed of four government officials, two members of the Israel Bar Association and three Supreme Court justices.
Friedman is determined to remove two justices, to prevent the court "from duplicating itself" and to give the Knesset and representatives of the public a larger role in the appointment process.
And Friedman also wants to clip Bagatz's wings. Over the years, and especially during recently retired Barak's term, Bagatz has created a principle of activism according to which "everything is justiciable." That is, the court has the right to look into any aspect of Israeli sovereign, official and government activity, including the constitutionality of laws passed by the Knesset, the behavior of governmental and public agencies, issues of human rights and matters relating to the Palestinian population of the occupied West Bank and Gaza, especially with regard to the proper proportionality between security needs and human rights. Bagatz is thus, Dorner notes proudly, one of the most accessible courts in the world.
"These and other 'reforms,' as Friedman refers to them, will destroy the Israeli legal system and, ultimately, Israeli democracy," she warns. "We have created a wonderful institution here. It is based on judicial independence, because we don't have a constitution. If judges do not remain independent, Israel will not be a democracy in the way we have known ourselves to be for 60 years."
She refers to a reprint of her retirement speech, quoting from Deuteronomy:1, "I charged your judges... saying, 'Hear the causes between your brothers and judge righteously between a man and his brother, and the foreigner who is living with him. You shall not show partiality in judgment; you shall hear the small and the great alike.'"
After all, she continues, who needs Bagatz? "It isn't the rich and the powerful. They have other means of taking care of themselves. If they feel that a government agency isn't treating them well, they can call the prime minister. But what about the simple people? We have turned Bagatz into the Kotel (the Western Wall) for anyone who needs it - for anyone who feels that they have been wronged."
But judges can remain impartial only if they are not beholden to anyone and have no political involvement. "A judge cannot be beholden to a politician - not for his job and not even for a more comfortable chair. Sure, in some countries, judges are selected by politicians - but that's not a very successful system. Just look at what happened in the Gore versus Bush case, in which the decision was political," she says, referring to the controversial decision to uphold Florida's 25 electoral votes and thus affirm Bush's victory over Gore in the U.S. presidential elections in 2000.
But that does not mean, she insists, that judges live "in an elitist bubble," as Friedman accuses. "Judges must be attuned to the public - not to the winds of time, but to the social context, because our decisions have to be seen as legitimate."
She continues, "All courts function in a cultural context. Israel is not a country that particularly observes the law. As a nation, we break the law. The authorities break the law. A lot. The authorities want to do want they want to do - and it's our job to make sure that the government upholds the law and rules with justice. Without this, the authorities will devour us.
"And we don't have a culture of 'it's just not done,' either. In other countries, a politician resigns when an indictment is brought against him for a crime or corruption. But here, no politician would ever dream of resigning. If they'd resign, there'd be no need for court action. So the court also has to both deal with the hygiene of public life and we have to protect the rights of the individual and minorities."
Dryly, she observes, "So of course I understand why the government doesn't like the Supreme Court or Bagatz. It is the court's job to monitor and criticize. But the true strength of the court lies in its ability to act as a deterrent to the government doing whatever it wants to do to whomever it wants to do.
Extract of an article in Issue 2, May 12, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Reportclick here.
