For thirty years I have walked the corridors of the halls of justice. During that time, I have never heard a single senior member of the judicial system admit in public: we were wrong, we were mistaken, we behaved improperly. Not once. On rare occasions, there have been those who've whispered an admission, behind closed doors, of an error in judicial conduct. But when the front door opens, that confession is replaced by a string of slogans, so beloved by the system, ranging from "Our judicial system is the envy of the world, a light unto the nations," to "Israel's courts are professional and of the highest standard."
In my first decade of activity, data were also used as proof of public trust, with a record-breaking 80%-plus of Israelis stating they trusted the courts in general and the Supreme Court in particular - an amazing statistic given both the Israeli citizenry's basic suspicion of government institutions and the deep rifts in our society. No wonder that then-President of the Supreme Court Justice Aharon Barak often quoted Alexander Hamilton's well-known statement that, "The judiciary… has no influence over either the sword or the purse…It may truly be said to have neither force nor will, but merely judgment."
Since then, a lot of water has flowed under the bridge connecting the legal system with the Israeli public. Water that today seems to have risen so high, it threatens both the bridge and the institution to which it is anchored. Surveys published by the Israel Democracy Institute over several years show trust is eroding; the trend reversed a little over a decade ago when almost half of Israel stopped trusting the courts and the Supreme Court. 49% to be exact.
But the justice system, instead of taking this to heart, continued to bury its head in the sand. It cast blame on everyone it could: one time it's the shallow media that doesn't properly convey information to the lay public, another time it's contrarian justice ministers like Daniel Friedmann for inciting the public, and yet another time it's the politicians, and former prime minister Benjamin Netanyahu and his supporters for seeking to destroy the system so as to save him from the case against him. But it's never the justice system itself, which has altered its norms, shifting from passivity to activism, from formalism to values, from judge as interpreter of the law and resolver of disputes, to judge as legislator and moral guide.
The result is alarming. This year, a study published by Professors Shlomo Mizrahi, Eran Vigoda-Gadot and Nissim Cohen of Haifa University, shows that the Israeli public's trust in the legal system is at its lowest level since 2008. 52% of the public expressed 'low' to 'very low' confidence in the Supreme Court, and only 25% expressed 'high' or 'very high' confidence. In other words, three out of four Israeli citizens do not have high confidence in the highest court in the land. This is frightening, because without trust there is no legitimacy, and without legitimacy there is no law.
One might have expected that, in the wake of these findings, senior members of the justice system might take a good hard look in the mirror, but most continued to repeat the same slogans, essentially absolving themselves of guilt. They are not entirely wrong. In recent decades, Israeli society has indeed undergone metamorphoses - but not to the point of justifying so great a collapse of public trust in the system. Israeli society hasn't formed an anti-liberal or anti-Zionist majority, nor is it anywhere near that. This explanation is therefore inadequate, and the time has therefore come to change tack and start looking for causes within the judicial system - how it conducts itself and how it makes its rulings. The hour is now.
Published by Globes, Israel business news - en.globes.co.il - on December 30, 2021.
© Copyright of Globes Publisher Itonut (1983) Ltd., 2021.