02 July 2007 - A day at the Bagatz

Yesterday I visited Israel’s High Court of Justice to watch oral arguments in a case dealing with the fate of the children of migrant workers to Israel; they are not citizens but many know no other culture or country. It was my first time watching the High Court (also known as the “Bagatz,” its Hebrew acronym) in action, in the midst of a week in which legal issues have dominated Israeli headlines.

On Saturday night, 20,000 demonstrators gathered in Tel Aviv to protest against the Attorney General’s decision to conclude a lenient plea agreement with former President Moshe Katsav, who was accused of rape but will now be charged with sexual harassment and will likely avoid prison. The plea bargain is to be reviewed by the High Court, which has received several petitions opposing it.

The issue goes to the heart of public concern about the rule of law and the corruption of Israel’s political leaders. U.S. legal giant Richard Posner recently wrote: “Israel is an immature democracy, poorly governed; its political class is mediocre and corrupt; it floats precariously in a lethally hostile Muslim sea; and it really could use a constitution.” But the High Court of Justice enjoys public trust.

In the same article, Posner criticized the ambitious judicial activism of former High Court President Aharon Barak, saying that while it might have served a purpose in Israel it would be hostile to the U.S. Constitution’s system of checks and balances. The new Israeli justice minister, Daniel Friedman, seems to agree and is set on rolling back the High Court’s powers, prompting protest from the legal community.

There are other major issues facing the High Court this week, which hears a thousand cases annually (as opposed to eighty in the U.S. Supreme Court). Last week, a private sector lawyer was appointed to the High Court for the first time. The Court may also soon hear arguments against a plan to deport Sudanese refugees to Egypt, which rights groups say would violate international law.

It was fascinating, in the middle of all of the controversy, to watch the High Court in action. The courtroom was packed (though mostly with Arab tourists, who filed out after a few minutes). The lawyers arrived in semi-casual clothes—only one of them arrived on time—and donned black robes; the panel of seven justices (out of a possible fifteen) walked in twenty minutes later, and everyone in the room stood.

That was about as formal as the proceedings got. The opening arguments began in rambling fashion; not only the justices, but the opposing counsel, interjected with questions and comments. Unlike American higher courts, the Bagatz has no time limits, and allows for freewheeling debates in which everyone interrupts everyone else. Only the state lawyer addressed the bench as “my lady,” and that only twice.

At one point, one side asked for a recess, but instead of halting proceedings the judges simply allowed the arguments to continue in their absence. A third legal team was allowed to present an oral amicus argument against granting the children legal status; in the U.S., such arguments would have to be submitted in writing. Later, the state attorney stood up and passed a jug of water to her NGO opponent.

The justices, including President Dorit Beinisch, were a testimony to the diversity and egalitarianism of the Israeli bench. Five of the seven were women, and of the two men, one was an Arab and the other a Jew. The men were mostly silent throughout, with the female judges peppering the lawyers (and each other) with questions. The leading lawyers for the two sides were also both female.

The strangest moment, for me, came when the President decided that the best option would be for the case to start over from scratch. She then announced that she would draft an agreement between the two sides, and wrote it on the spot while the rest of the court waited patiently. She read out the handwritten document, accepted suggested changes from both sides, then circulated it among the panel for signing.

Both sides seemed satisfied. The state had avoiding yielding ground on the legal issue, itself which it feared would set a dangerous precedent. The advocates for the children had earned them a reprieve from deportation. An adversarial court case had suddenly been transformed into a successful mediation, or what the Anglo-American legal world likes to call “alternative dispute resolution.”

It amused me to observe that the High Court’s decisions are studied so seriously around the world, cited for their innovative approach to human rights in a time of terror or criticized for their deference on the legality of the occupation itself, and yet sometimes made in such an intimate and informal way. Was this an example to follow, or to avoid? As long as justice is seen to be done, does it matter?