By HaRav Yisrael Rosen
Dean of the Zomet Institute
We can have Faith in the Courts
The regular readers of this column know that I have often criticized various levels of the Israeli justice system, with respect to matters related to religion and the state and for many nationalistic issues. These issues are intimately linked to existing viewpoints of the judges, and a common claim in my writings and in the opinion of those who agree with me is that the judges of the High Court and of lower levels in the justice system often promote the religion of personal rights at the expense of other values, such as a nationalistic outlook. It is a mistake to think that legal judgements are "mathematical entities" that are hermetically tied to clauses of the law or to legal precedents. This can be seen, for example, in the controversy among the legal experts about the issue of "judgmental activism" – the legacy of the former Chief Justice of the High Court, Aharon Barak. However, in judgements involving criminal, administrative, and civil law, I have a high degree of faith in the existing judges. In these matters I accept the assumption that judgements are objective, without any favoritism, and based on sincere opinion of the judge about the innocence or guilt of the accused.
I am writing this article in the context of a number of prominent public figures in Israel who have been convicted of public corruption or other prohibited actions, and who have spent, are spending, or will spend time behind bars. To our sorrow, we have two ministers who have been found guilty, a former President who was convicted, and police commanders (but not, it seems to me, any generals, in spite of various accusations). And this week these previous guilty ones are being joined by a Prime Minister who is surrounded by various corruption scandals and from the other side a "Baba" – a master of mysticism – who is rich in dollars and is surrounded by a large number of followers. We can be thankful that no justice of the Supreme Court has been accused of criminal corruption (although to our sorrow a case is being prepared against the previous Chief Rabbi, who also served as a judge in the religious High Court). In all, the war against corruption, distribution of benefits, and exploitation of governmental power – including sexual relationships – is worthy only of praise, encouragement, and support. This war is much more worthy of support when the accused are high-level public and humanistic figures who often served as role models and objects of jealousy.
Problematic Legalistic Elements
In spite of the above, I have a feeling of discomfort, a feeling that there is something missing. It seems to me that virtually all the convictions are based on two elements that are faulty from the viewpoint of the halacha (which is called "Hebrew Law"): state's witnesses and plea bargains. And there are even times when these two elements are used together.
As a rabbi and as one who yearns as hard as can be for the establishment of a Jewish State with all of the traditional laws, and as one who is a partner in the enterprise of "Techumin," an annual publication of which 35 volumes have already appeared full of dozens and hundreds of articles on the subject of timely halacha and the legal system – I find it problematic to see such regular use of these two legal devices to convict a criminal – devices which are not tolerated in Jewish halacha. Everybody understands that at times there is no alternative to make a choice between one person and another, and to convince one of the partners in crime to testify against a more senior member of the team by offering him immunity. Everybody understands that at times it is better to "grab" the opportunity for a plea bargain instead of putting the system through a long and complex court case, which will also be quite expensive. But even so, the use of these tools is no occasion for legal celebration.
It is true that anybody who is even partly familiar with the halachic discussions about "the law of the king" and its connection to the laws of Israel is aware that there is a broad path through which we can indeed accept the laws of Israel and the legal system as an instance of "the law of the king" and "a custom." This concept gives great power to the governmental bodies to make laws and judgmental procedures even without any basis in the Torah, as is written by the Rambam: "Anybody who kills another person without the act being witnessed properly or without having been warned of the punishment beforehand, even if there is one witness, or in the case of a person who hates another one, and who kills him by accident – the King is allowed to have him executed, in order to bring about 'tikun ha'olam' as is necessary for that time... in order to instill fear and to shatter the hands of the evil people in the world. " [Hilchot Melachim 3:10].
Does Office of the State's Attorney have Judicial Status?
Even if there is a dire need to act, I still feel uncomfortable with the fact that such decisions – plea bargains and state's witness agreements – are in the hands of the State's Attorney and his office and are not in the province of high-level judges . The judges are presented with a "fully prepared dish" and all they can do is to change the relative proportions of the spices to a small degree. This gives the legal advisors a status combining trust and the ability to judge. But what can we do, these people have not earned my trust at all. The office is swept by too many winds that are not as pure as they should be. Perhaps at the very least, a change can be made to put these tools in the hands of the judges themselves and not the lawyers!
I am also not happy with the fact that these devices, state's witnesses and plea bargains, are becoming more and more common, almost achieving the status of an a priori optimal choice. I know that this is very easy to say, and that the people whose job it is to "shatter the forces of evil" feel that this is the only way to achieve the desired results. However, I can provide some simple counterexamples from the past week. We could have done without the additional month of prison time for the former Prime Minister in order not to have a need for testimony by his corrupt partner, who in the end revolted against her own boss. On the other hand, I find it very hard to believe deep in my heart that a truly neutral judge would have accepted the lenient plea bargain given to the defendant who is so generous in handing out his many blessings and curses.