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PDF FormatIn addition to the editorials, the Bar-Ilan decision also prompted a poster campaign in haredi neighborhoods proclaiming that “Aharon Barak works for Meretz,” and ending with a call to “[p]revent the dictatorship of the High Court of Justice. Let the public elect Supreme Court justices.”15 Acerbic though they may have been, nothing in the editorials or the posters exceeded the bounds of ordinary (if unsophisticated) debate, and it is safe to say that had the subject of the barrage been, say, secular MKs Yossi Beilin or Rafael Eitan, they scarcely would have been noticed.
But noticed they were. The entire political establishment roared in outrage, scandalized that anyone, in the words of former Supreme Court justice Haim Cohen, had “dared speak harshly against the Supreme Court,”16 and brandishing three death threats upon Barak that followed the editorials (two of them only after the storm was in full swing) as proof that the papers were guilty of “sedition” or “incitement,” terms that had come into vogue in the wake of the Rabin assassination.17
Opposition MKs Yossi Sarid and Dedi Zucker (Meretz) called upon the attorney-general to open a police investigation against the papers for sedition.18 Knesset Interior Committee chairman Sallah Tarif (Labor) demanded that the government shut down the newspapers.19 Labor MK Dalia Itzik filed a police complaint against the papers, railing against the “evil and primitive hands, dripping with poison and venom, which wrote these words.”20 The Labor party collected enough signatures to force a special Knesset session to be called to discuss the haredi “incitement” against the Supreme Court. MK Elie Goldschmidt (Labor) submitted a bill which he said would make critics of the Supreme Court subject to prosecution even where incitement or sedition could not be proven.21 And former justice minister David Liba’i (Labor) claimed that even without new legislation, the two newspapers had already violated a law against defamation of the court.22
Reactions from the ruling right were similar. In addition to Meridor’s hyperbolic barb (“a severe incitement campaign that is unprecedented in the state’s history”), Prime Minister Benjamin Netanyahu proclaimed that “the Supreme Court is a cornerstone of the legislative authority in the state. We will not permit attacks on this important and central institution.”23 Agriculture Minister Rafael Eitan opined that the “attacks on Supreme Court President Aharon Barak are an intolerable phenomenon—suitable perhaps to South America or the dictatorships of the Middle East.”24 And President Ezer Weizman, who is not part of the government but is rather obligated to represent national consensus, commented that “the legitimate right of dissent does not cover injury to or disrespect for the law.”25
The legal community seethed, as well. The deans of the country’s four major law schools issued a statement calling the editorials “a campaign of incitement” whose purpose was to “intimidate judges.”26 The Association of Municipal Attorneys, a professional association of legal advisors to the country’s 1,170 local authorities, asked Attorney-General Michael Ben-Yair to take action against the papers, saying it was “inconceivable in a state of law for newspapers to publish slander and incitement which run the risk of serving as a license to kill Supreme Court justices, and for the legal system to deal with it leniently, as if we were talking about legitimate criticism.”27 Ben-Yair and State Attorney Edna Arbel warned in a joint statement against the “danger that these attacks will undermine the faith of the public in the judiciary as a whole, and in the Supreme Court in particular,” arguing that an independent judiciary was “fundamental for the existence of the rule of law and the preservation of a democratic regime in Israel.”28
Not to be outdone, the mainstream press also joined in the attack. Ha’aretz charged in an editorial that the pieces were “attacks on the rule of law, and in essence, on the fundamental values of our society.”29 Moshe Negbi, the most influential commentator on legal affairs in Israel, compared the editorials to the incitement against Yitzhak Rabin in the months leading up to his assassination, asserting that in all likelihood they would lead to violence against Barak.30 Yedi’ot Aharonot, Israel’s most widely-read daily, published a missive by prominent author Haim Guri declaring that “what we have before us is a serious and well-organized attempt to damage the Supreme Court and the entire legal system.”31 And columnist Yoel Marcus of Ha’aretz charged that “it is hard not to see that a contract has been taken out on Aharon Barak. This contract covers a much broader area than just Barak’s life; we are talking about a contract on the nature of law and democracy in the state.”32
But the height of acrimony came from Dor Shalom (the “Peace Generation”), an extra-parliamentary group set up in the wake of the Rabin assassination, which mounted a poster campaign of mock newspaper headlines reporting Barak’s murder by “an extremist religious assassin,” including a fictitious quotation from haredi MK Avraham Ravitz (United Tora Judaism) that “the possibility of murder never occurred to me,” and closing with a none-too-subtle call to the public, “Is this what has to happen to jar you out of your complacency?”33
The haredi press, for their part, did not back down. Yated Ne’eman, in particular, continued to publish almost daily editorials justifying its position and reiterating its call for the public to treat Barak as just another politician; other haredi papers also joined the fray. Yet outside of these papers, and a few prominent haredi politicians, virtually no voices could be heard defending either what had been written or the right of the papers to write it. Even Attorney-General Ben-Yair, who declined to act on any of the criminal complaints on the grounds that criminal sanctions would infringe on freedom of speech and thus “cause more harm than benefit to our social structure,”34 made it clear that he did not oppose using social pressure to suppress the writers’ views. Indeed, Ben-Yair averred that one of the disadvantages of an indictment was that a publicized trial would give the editorialists another platform from which to express their views.35
After a respite of several weeks, the issue resurfaced in November, with Dror Hoter-Yishai, the chairman of the Israel Bar Association, at the center of the storm. Once again, the spark was provided by Yated Ne’eman, which carried a lengthy interview with Hoter-Yishai focusing on his views about the Supreme Court. Without mentioning Barak by name,36 Hoter-Yishai accused the court of busying itself with inappropriate activities to such a degree that it no longer had time to fulfill its basic responsibilities to the law. Echoing Oliver Wendell Holmes’ distinction between “justice” and “law,” Hoter-Yishai argued that
A court must not do justice. A court must do law.... The most dangerous thing that can happen to a court is for a judge to be free to do whatever he wants and whatever seems proper, according to his own view of what is right and just....A court should deal only with the law. The law is determined by the legislature. [The legislature] determines the legal norms, and if the people don’t approve, they can replace it.... But the people can’t replace judges, who are appointed for life. Therefore, [the judges’] role cannot be to set moral norms.”37
Hoter-Yishai attacked the court on democratic grounds, claiming like the haredim that because the judges are unelected and unimpeachable, their role in a democracy must never go beyond evaluating a case with respect to the law. To Hoter-Yishai, use of a “reasonability” standard does just that, radically undermining the autonomy of elected officials and, by implication, democracy itself: “If you begin to examine the reasonability and appropriateness of a decision, you’re essentially saying, ‘I am in charge,’ because you are putting your judgment in place of [the government’s] judgment.” Moreover, the dramatic liberalization of justiciability and standing have so greatly increased the court’s caseload that justices no longer have time to do the work they are actually supposed to do:
[N]ow the court is saying, “I’m overworked and exhausted and I barely have time to hear cases, and I no longer have the patience to hear cases.” I don’t know if you’re aware of what is happening there today: Twenty-five appeals a day are heard. It’s a joke. Who can rule on twenty-five cases? Who can even read twenty-five cases? And we’re talking about life and death issues! This is simply scandalous!38
According to Hoter-Yishai, there had even been cases in which people committed suicide because of the delay in deciding their case, while judges were spending their time adjudicating inappropriate cases and delivering lectures for pay—itself raising questions of conflict of interest—instead of performing their basic duties.39
