By any account, the Israeli Judiciary emerged from this past week battered and bruised. For starters, police revealed that Judge Hila Gerstel had allegedly been offered the post of Attorney General by Prime Minister Netanyahu’s Spokesperson Nir Hefetz in exchange for dropping charges against Sara Netanyahu. After that bombshell landed along with her claim that at the time she had told current Chief Justice Esther Hayut about the alleged offer, numerous commentators slammed the highly regarded Gerstel for having waited two years before informing law enforcement officials and expressed reservations about Chief Justice Hayut's behavior as well.
Then came Sunday night’s explosive Channel 10 report revealing a series of messages on WhatsApp between Judge Ronit Poznansky-Katz and an investigator from the Israel Securities Authority. The investigator had been tasked with probing suspicions that a Netanyahu aide provided chief Bezeq shareholder Shaul Elovitch with regulatory benefits in exchange for sympathetic coverage to the prime minister and his wife on the Walla! news website, which is owned by Elovitch.
In the messages, the Israel Securities Authority official informed Poznansky-Katz of his agency’s intention to request that several suspects’ arrests be extended, telling the judge to “act surprised” when he makes the request in court.
The visual exposé of a judge colluding behind the scenes with an investigator, a practice contradicting the very essence of due process, put a serious dent in the judicial system’s image.
In addition, a report by the Uvda investigative television program in November showed judges wheeling and dealing in an attempt to curry favor from members of the Justice Selection Committee. The nine-member committee, headed by the Justice Minister, is responsible for all judicial appointments in Israel. Aside from the Justice Minister, the committee is composed of an additional cabinet minister; two MKs, traditionally including one from the opposition; two Bar Association representatives; and three Supreme Court justices, including the Chief Justice.
The report cast the justices in an unprecedented negative light, leading Supreme Court President Esther Hayut to ban all judges from having any contact with politicians.
“If up until today, the feeling was that the police were the source of mess-ups while the Judicial system managed matters properly, tonight shattered that image, a mistaken one to begin with,” wrote Arutz Sheva legal correspondent Shlomo Pyuterkovsky about the WhatsApp affair. “It turns out that the system did not even respect the most basic ethical norms.”
Attorney Simcha Rothman, legal advisor for the Israeli Movement for Governability and Democracy (Meshilut) was not surprised by the news that the judge had traded messages with investigators and planned her response to their appeal before the hearing in question took place. Rothman said that the structural problems plaguing the courts, in addition to the fact that many judges were originally prosecutors, virtually guaranteed that such collusion would occur.
“Most of the time, and better defense attorneys than me have said this, to get the court to order the prosecution to release someone on the first attempt is like winning the lottery,” Rothman told Arutz Sheva. “The prosecution is in sync with the judges. I believe that this type of synchronization becomes possible when they talk to one another.”
Rothman noted that in Israel, prosecutors and district attorneys are frequently appointed as judges without the necessary ‘cooling off’ period mandated in other countries. This practice, he said, leads to judges being predisposed in favor of the prosecution, which “stacks the deck” against the defendant. According to Rothman, this phenomenon explains why Israel has one of the highest conviction rates in the world, hitting an abnormally high rate of 98.5% in 2007.
“Many judges come from the prosecution and the civil service,” said Rothman. “They are friendly with each other, they know each other, they have had the same education and training.”
“There are many people who sign plea bargains despite knowing they are innocent because they know what their chances are in court,” continued Rothman, alleging that many prosecutors and judges “are not afraid to do witness tampering or obstruction of justice.”
The recent spotlight on the judiciary resulting from these exposés has hurt the near-immunity from criticism the judiciary has historically enjoyed. For the first time, reporters and politicians are openly criticizing justices without fear of the massive backlash such criticism would have invited until even last week.
“For many years, people tried to tell us that the justice system is perfect, that the justices are perfect, that the system is beyond doubt. I think the age of innocence, for whoever shared this innocence, has passed,” said Rothman.