Should Israel's Gaza flotilla probe be suspended?
An interview with Professor Daphne Barak Erez of Tel Aviv University, an expert in administrative law and a former candidate for the post of attorney general.
Professor Daphne Barak Erez of Tel Aviv University is an expert in administrative law and was one of the candidates for the post of attorney general. The High Court of Justice today discusses the issue of suitable representation and the absence of women on the committee.
During the 1990s, the High Court annulled appointments to the boards of government companies on this basis. In all recent petitions, the court greatly praised the necessity of suitable representation but it did not take steps to oblige [those involved] to do so.
"Not all the cases in which the High Court of Justice intervenes are one and the same. Sometimes, the petition was submitted relatively late so it was feared that the committee's work would be disrupted, or the public interest hung in the balance; in other cases, there were people who had already been appointed in whose behavior there was no defect. There is no one consideration that is a connecting thread in all cases where the High Court does not intervene."
The fact that there are no women on the committee has already affected its work - isn't that what the amendment to the law says?
"The legal principle is that a committee or body on which women are not represented is a body with a defect in this respect - that the legislator's concept is, on the one hand, that there must be equal opportunities for women, and on the other hand, and this is perhaps even more important, that as many points of view as possible must be taken into account, and as diversified a life experience as possible, in the formulation of public policy. The idea is not especially women as opposed to men but rather women who will bring another kind of life experience, a different public and professional background."
If that's the case, there is an inherent defect in the work of a body like this. But the High Court does not really relate to this defect, does it? That is to say, there is an old-fashioned and conformist approach about where the public interest lies.
"It must be understood there is a real dilemma in intervening post facto. The real tragedy is that the issue of women's representation has to be promoted every time through petitions to the court. The court's rulings on this subject go back a long way. We should have reached a situation whereby in the public system itself there would be organized procedures that would prevent the need to submit petitions. After all, a move is successful when the system internalizes it."
In the most recent petition, in January, the state committed itself to formulating a regulation to this effect within four months. Now it's August but there is no such regulation. Is this not the time to suspend the committee's work?
"I don't think it would be right to refer to a subject that the High Court has to decide upon. But, in general terms, the repeated non-appointment of women to public committees is proof of just how vital it is, and the importance of this cannot be exaggerated, to formulate the regulation. It is explicitly both the legal and the public responsibility of the government to ensure the existence of such a procedure."
Since there is no such regulation, isn't it the attorney general's job to caution that there must be suitable representation?
"I don't wish to relate to this case because I don't know the facts, but, in general, it is the responsibility of the attorney general to turn the attention of the decision makers to the requirement there be suitable representation. There's no doubt about that. But the real achievement will be when the decision makers themselves internalize this necessity."
What exactly does the legal principle of suitable representation say in this respect?
"The law stipulates there must be suitable representation and the accepted interpretation is to make genuine and comprehensive efforts. The question is how can this be applied in the circumstances of the matter [at hand]? The assumption of the law is that when a great effort is made, in typical cases women will be found , since we are talking about 52 percent of the population, who have the relevant talents, education and life experience. The law takes into account the question what the criteria are and who is compared with whom."
Minister Limor Livnat, who fought in the government for suitable representation on the Turkel panel, raised your name as suitable. Did they approach you?
"I don't want to relate to the personal aspect, because I think the way to promote the issue of suitable representation is to understand the subject not as something personal but as a public interest, one of high priority and, of course, we have to commend every public figure - in this case, the minister Limor Livnat - for supporting this concept."
The state claims it approached women but they refused. Why do women refuse?
"I don't think women refuse more than men. A women's refusal gets more public attention because the discussion is under the shadow of suitable representation - and then we did our duty and turned to a woman but she refused. Women don't refuse more, the question is just whose refusal we are talking about."
The state repeatedly says the law does not take expertise, importance and haste into account, which makes it difficult to find women.
"The state is right about it being possible that when there is great urgency and more specific expertise is required, it is more difficult to apply the requirement for suitable representation. On the other hand, it is precisely on committees that consider the most important issues that it is even more important for there to be suitable representation."
The Leah Shakdiel petition [on equal representation] goes back to the 1980s. We have had laws and excellent rulings for 25 years. Still, overall, the situation has not changed.
"We can't make a total change but we have come a long way. The blatant disqualification of women from public positions, as in in the Shakdiel case, is certainly no longer acceptable. With regard to suitable representation, there are types of government bodies in which women's representation has become the norm. There are, however, also spheres where it's more difficult to enter. I wouldn't want us to be disheartened by saying we haven't achieved anything. A lot has been achieved, but not enough."