In Jerusalem there is an institute called the Shalem Center which was established in 1994. as a research institute focusing on Jewish social thought and Israeli public policy.
In early 1998, they published a paper in their journal “Azure” entitled “Is It Legitimate to Criticize the Supreme Court?” Here are a few extracts from this paper:
“In August 1996, two haredi [ultra-orthodox] newspapers published editorials highly critical of the Israeli Supreme Court and its president Aharon Barak, assailing the court’s increased involvement in matters outside its traditional purview. The editorials triggered a torrent of denunciations from Israel’s political, legal and journalistic establishments: Complaints were filed with the police against the papers and their editors charging them with sedition, incitement and defamation of the court; there were calls in some quarters for the papers’ closure, while prominent politicians from almost every party vied to produce the most vicious castigation of the crime....”
“... Dror Hoter-Yishai, chairman of the Israel Bar Association, blasted the court for its intrusion into matters that were properly the province of the Knesset. Again, across-the-board denunciations were accompanied by police complaints and demands that Hoter-Yishai be removed from his chairmanship of the Bar and his position on the government committee that appoints judges....”
“The Israeli public is probably unique in the sanctity it affords its judiciary, and in its bilious intolerance to attacks on the court....”[97]
However, recently there seems to have been some improvement in this situation. On 16 November 1999, in a lecture to an international conference on the subject of “Parliament in Israeli Democracy”, the President of the Israel Supreme Court, Aharon Barak said: “Criticism of the Court is vital. Who will guard the guard? Who will oversee us? We are prepared for criticism. We need criticism. But it must be presented in a restrained, relevant and respectable manner. Criticizing us is legitimate as long as the criticism is based on a knowledge of reality and the facts. We look forward to such criticism.”
Barak went on to criticise those people who were opposed to criticism of the High Court. He said that the Court was interested in criticism. He suggested that if a Court were to be set up above the current High Court, it would probably overturn thirty per cent of the current High Court rulings.[98]
In February 2000, the Minister of Justice Yossi Beilin said in the Knesset, “If one were to say that a particular court ruling or a High Court ruling is mistaken and it cannot be accepted - that is completely legitimate. This is criticism which is not only necessary, not only permitted - it is legitimate.” However, he went on to say that to make a general criticism that the Courts are against the Torah is very, very problematic.[99]
Indeed, there have been highly reputable people such as Ruth Gavison, Professor of Law at the Hebrew University in Jerusalem[100] and the lawyer Tzvi Noach[101] who have been highly critical of the current legal system in Israel. A number of articles have also appeared in the newspapers criticising the inconsistent way the Israel Supreme Court comes to its decisions.[102] There is no shortage of articles on this subject.
Even a former Supreme Court president, Moshe Landau, has been very critical of Judge Aharon Barak and the Supreme Court. In an interview he gave to the newspaper “Ha’aretz” he said: “... in my view President [Aharon] Barak is leading the Supreme Court and the judicial authority down the wrong road ... I think that Supreme Court President Aharon Barak has not, and does not, accept the rightful place that the court should have among the various authorities in our regime .... [Judge Barak’s goal is] to interject certain moral values as he deems appropriate. And this amounts to a kind of judicial dictatorship that I find completely inappropriate.... It [the Court] displays arrogance and pretension ... It sometimes seems to me that most of the justices on the Supreme Court see themselves more or less as governing elders. In my view, this tendency is improper.... And today, I truly fear for the proper future of the legal system....”[103]
When one appeals a court decision to a higher court, one is in fact criticising the lower court’s decision. Criticism of a court decision, including that of a supreme court, provided it is done in a polite manner, can sometimes advance the course of justice and social and ethical conduct.
As far as the Parliament in a democratic country is concerned, an integral part of its composition is the opposition. Many countries have an official “Leader of the Opposition” in their Parliament. In July 2000, the Knesset passed a law which officially recognised the position of Leader of the Opposition. This law gave the right to the Leader of the Opposition to be updated on matters of State at least once a month by the Prime Minister, and to speak in the Knesset immediately after the Prime Minister.[104] A function of a parliamentary opposition is to bring down the government. Motions of no confidence and criticisms are the “order of the day” and opposition members of a legislature do not always use “parliamentary language” when criticising the government!
Citizens of a country can and should also criticise the government and the Parliament when they feel the necessity arises. However it is an obvious proviso that criticism of a judiciary, legislature or executive should not contain any incitement.
The “Baruch Goldstein case” has come up before the judiciary, the legislature and the executive. As can be seen in this work, I have criticism of all these branches in the way they handled the matter. I shall do my best to state this criticism according to the formula of the President of the Supreme Court, Aharon Barak: “in a restrained, relevant and respectable manner.”