Rabbis, judges, and the secrets they share

Both candidates received an absolute majority with 63 votes, both were elected with the crucial support of Shas, both ended their terms suspended from office in disgrace, and both were elected by secret ballot.

By JOEL H. GOLOVENSKY
CHIEF RABBI Yona Metzger 370 (photo credit: Bernadett Szabo/Reuters)
CHIEF RABBI Yona Metzger 370
(photo credit: Bernadett Szabo/Reuters)
Both candidates received an absolute majority with 63 votes, both were elected with the crucial support of Shas, both ended their terms suspended from office in disgrace, and both were elected by secret ballot. The two are Moshe Katzav in July 2000 and Yona Metzger in April 2003.
Secret ballot voting to elect public officials is a cardinal requirement of democracy. But secret ballot voting by public officials in the exercise of their responsibility is anti-democratic and destructive. When electing our representatives, it is crucial that we be free to choose without external pressures of any kind.
We don’t want anyone to know how we vote unless we choose to tell them. But when the people we elect have to decide what to do or who should be picked to do it, we need to know what they are doing. How else can we hold them accountable, how else can we reward them with our vote or punish them by voting for their opponent? And when public officials seek to vote in secret, it is often a sure sign that they are preparing to pull a fast one and break their promises. This is what happened in the Katzav vote of 2000 and this is what happened even more dramatically in the Metzger vote of 2003. It is also what happened in the secret ballot Knesset votes for the Judicial Appointments Committee in June of 2009 and 2013, and is what happens all the time in the hidden deliberations of that very Judicial Appointments Committee when they appoint our judges.
The story of Rabbi Metzger’s selection in 2003 epitomizes the untoward consequences of these secret votes by public officials.
Before the vote, the attorney-general had issued an official and public advisory urging those deciding to disqualify Rabbi Metzger on account of his “improper actions,” and the outgoing chief rabbis, in an unprecedented step, publicly urged that Rabbi Metzger not be designated. Because each individual’s vote was hidden from public scrutiny, the majority ignored these ominous and extraordinary exhortations.
When the acts of public officials are concealed from scrutiny, political and untoward interests are free to reign unrestrained.
One of the most powerful and intrusive arms of government is the courts. Increasingly, judges shape our public character and decide all kinds of questions previously held inapposite to their skill set. The makeup of the Supreme Court is far more important than the identity of the president or chief rabbi. Especially now, after Prof. Aharon Barak’s self-proclaimed “constitutional revolution,” when all matters are justiciable and when all persons can invoke the authority of the court – no matter how insignificantly affected, the court, today, determines which Knesset laws are legitimate and which are nullified based on whether the judges deciding the case feel the laws “befit the values of the state.”
It is crucial that these justices be chosen responsibly by elected representatives of the public, without back-room deals, with full transparency and with public accountability.
This is what happens in every democracy except India – and Israel.
We are told that these secret votes are necessary so that the public officials can “vote their consciences” without external pressures and consideration.
Now, conscience is a good thing. But obeying one’s conscience does not, or should not, require secrecy.
It is not outlandish to expect public officials to do what is right in the full light of public scrutiny.
Almost all violations of conscience – or what should be conscience- occur in secret. Does anyone think that the Holyland monstrosity in Jerusalem would have happened if all related proceedings where held in public? The impending election of chief rabbis is a prime example of why public officials must act in broad daylight and not behind closed curtains. At the beginning of this month, the candidates included a brother of Shas head Aryeh Deri, five sons of former chief rabbis (now down to four because of a criminal investigation of one), a rabbi favored by Bayit Yehudi chosen in a secret ballot election where even the tally was kept secret, and a rabbi under review by the attorney-general for allegedly racist statements.
The 150-person group choosing among the candidates is itself chosen by a Byzantine process.
Two-thirds are rabbis and onethird are public officials selected by a committee of five, comprising two politicians, two rabbis and a judge appointed by the minister of religious affairs. There are probably fewer than 15 people in the country who can detail how the members are actually chosen – and they are the campaign managers of the candidates.
The system is fundamentally flawed and should be changed.
But in the meantime, let’s at least have some measure of transparency.
There is no legitimate need or justification for a secret election by the 150 members of the panel.
They must vote out in the open so that they can be called on to explain their action.
The institution of the Chief Rabbinate is increasingly being called into question. Many are asking why we need it. Those who support the Chief Rabbinate must work to lift the fog from the selection process; those opposed to it are entitled to have the selection process carried out in the open. Secrecy is for the voters – not for those who are elected to serve them.
The author, an attorney in Israel and the US, is the founding president of the Institute for Zionist Strategies.