Former Supreme Court justice Prof. Aharon Barak explained his position of being in favor of a plea deal with former prime minister Benjamin Netanyahu. He said that “the deal should be approved because its approval will remove the sting that undermines the court system.” On the other side, former state attorney Moshe Lador opposes a plea deal because it “will damage trust in the legal system.” Justice Barak is wrong. Moshe Lador is also wrong.
The dividing line between half of the Israeli public and the Supreme Court, which began in the days leading up to the Gaza disengagement, was overcome by a series of rulings that were political in nature in the eyes of some of the people. Netanyahu identified the rift and used it to his advantage. A plea bargain will rebuild trust on neither the Left nor the Right. On the contrary, a plea bargain will increase distrust if the necessary steps are not taken.
As we debate the merits of Netanyahu’s plea deal, we must discuss the question of public trust in the judicial system. Many blame Netanyahu for the public’s lack of faith in the Supreme Court, reflected in the Israel Institute’s Democracy Index. Published in January 2021, the survey reveals that only 42% of Israelis expressed confidence in the Supreme Court in 2020. These were the results before the Netanyahu trial. So could Netanyahu really be responsible for this crisis of confidence?
In 2003, more than 69% of the Israeli public expressed confidence in the Supreme Court. In 2008, it was just a little over 47%. We have to wonder, what happened between 2003 and 2008? The answer lies in the events surrounding the disengagement from the Gaza Strip.
Throughout the disengagement, families fighting to keep their homes were given a cold shoulder. The issues demanded sensitivity and consideration but they were casually brushed aside. At the time, the Supreme Court aligned itself with then-prime minister Ariel Sharon, trampling the very values that it espoused.
Following the Holocaust, in one of the first demonstrations against the reparations agreement with West Germany, the crowd that came to protest against the agreement threw stones at the Knesset. Days later, when the Knesset was asked to approve the negotiations, barbed wire fences were erected in the streets of Jerusalem, military personnel armed with batons roamed the city and many people were barred from going to Jerusalem to protest.
The rights to demonstrate and to freedom of movement have always been cornerstones of Israeli democracy. They are reflected in the founding laws and the rulings of the Supreme Court.
THESE RIGHTS were trampled during the orange struggle (the protest against the disengagement from Gaza). Buses carrying demonstrators to Jerusalem were stopped on Highway 1. All of a sudden, freedom of movement and the right to demonstrate were no longer important. Ministers who wanted to vote against the evacuation from Gaza were fired and had their vote essentially confiscated. Perhaps it was legal to fire them, but it was not entirely kosher. Time after time, the people of Gush Katif and their supporters sought relief from the Supreme Court, but they did not receive it.
The sensitive issue of the demolition of synagogues as a result of the Jewish evacuation from Gaza was brought to the Supreme Court in front of a wide panel of judges. They decided to leave the verdict in the hands of the political echelon. It was former defense minister Shaul Mofaz, a believing Jew, who said the next day, “I could not give the order to destroy the synagogues.”
The days after the disengagement led to the biggest rift with the Supreme Court. The feeling was that Sharon’s authority was challenged in the various cases, and the series of rulings of the High Court were a message to a large group of people that they would not find a cure within the walls of the Supreme Court.
Since 2005, whenever Supreme Court justices have intervened in issues concerning religion and state from either Right or Left, the public senses that the outcome has been decided in advance. The judges, however, remain unaware that this chasm even exists.
Let’s compare the “Crime Minister” demonstrations in the face of all the coronavirus restrictions, to the protests when homes were destroyed on the Path of the Patriarchs (Derech Ha’avot) in Gush Etzion. Legal difficulties arose then as well, but did they receive the same relief and mobilization from the High Court as the Palestinians living in the Shimon Hatzadik neighborhood (also known as Sheikh Jarrah)? The Supreme Court and its judges did not understand the size of the rift then, and they do not understand it today.
The data from the index demonstrate that the Netanyahu trial did not change public perception very much. In 2008, just over 47% of people had faith in the court. In 2020, that number was 42%. Meaning the system incorrectly diagnosed the complex problem. A plea deal will not prevent the destruction, but it could expand it to include those on the Israeli Left who will express distrust in the system. Netanyahu expressed the concerns of a large group of people when he spoke about the court, but he was addressing concerns and movements that already existed.
Should a plea deal be accepted, anyone who wants to reform the legal system should remove their robe and go out for coffee with the settlers of Gush Etzion and meet up with the pioneering settlers of the new settlements in Samaria who have their own similar complaints about the system. They should march alongside other reformers including women’s organizations and men’s organizations. Anyone who wants to build trust in the justice system must understand that Netanyahu did not create the rift; he just became the face of it.
Whether or not there is a plea deal has no significant impact on public trust in the Supreme Court. The debate over the plea deal is simply the latest warning bell calling for system repair. If the judges do not heed the warning, the legislature and the people will react, just as Barak warned.
It is written that Moses sought “wise and understanding and knowing men” (Deuteronomy 1:13) to be judges. Wisdom and understanding alone are not enough, it is important that they are also known to the public. This is achieved through face-to-face meetings.
The writer is the mayor of Efrat.