Brazil 2014, the finals of the World Cup in soccer, Spain against Argentina. Suddenly, the Spanish coach takes Xavi, Iniesta and the rest of the Barcelona players out of the line-up with the incredible explanation that all year long - in the league, the European Cup and the European Championship - they play alongside the greatest player of the generation, Messi. He knows them and they know him. With Messi playing for the Argentine national team in the World Cup, it is not fitting for them to play against him.
That, more or less, is the way the decision was made regarding which Supreme Court justices would hear the state's petition against former Prime Minister Ehud Olmert's acquittal in two of the three cases against him. Five justices - most if not all of whom ordinarily would have been included on the bench for such an important, intriguing case - were sifted out, not all of them voluntarily. They do not trust themselves, or someone else does not trust them, to do justice. The sifting-out could impact the final ruling.
Sometimes a victory, tie or loss is determined by the mix in the quality of the teams (the defense and the prosecution ), the case and the judges. It is an issue of personality and sometimes of venue. Ex-President Moshe Katsav's attorneys sought to have his trial held in Jerusalem or Be'er Sheva, considered relatively lenient courts, and not in Tel Aviv. They made as if they were asking for one of these venues for convenience's sake, saying it was because the accused lived in Kiryat Malachi and the witnesses in Jerusalem. Then-Supreme Court President Dorit Beinisch went so far as to measure the distances between the various points and proved that Tel Aviv was closer. By helicopter, groaned the frustrated attorney, as the crow flies, not on the road. Katsav's legal team claims to this day that their client would have received more Olmertian treatment had he been tried, like Olmert was, in Jerusalem.
In July, Nir Gontage reported on the news website Walla! that one of Olmert's three judges, Jacob Zaban, had not disclosed to the prosecution that his son, Yahil Zaban, was close friends with Dana Olmert, who was not only the daughter of the accused, but was allegedly one of the beneficiaries of flights through Rishon Tours, the subject of some of the charges against Olmert, and of which he was acquitted. Judge Zaban reported the matter to District Court President Moussia Arad, but left it up to her whether to tell the prosecution. Arad did not do so. Prosecutors may have considered the matter and not acted had this detail had been reported to them at the beginning of the trial; however, discussion on whether to ask for Zaban to be recused was not held at all because Arad kept the information to herself.
Now it is the background behind the choice of the judges in the state's petition in the Olmert case that is being concealed. According to the court spokeswoman: "The members of the bench were decided based on seniority. However, certain senior justices were not included in the expanded bench because of their acquaintance with individuals involved in the case, whether due to a position held or in another context."
Either explanation is surprising. Why should a previous position, for example state prosecutor or attorney general, disqualify a judge? (According to this logic, holders of these offices should not be appointed at all to the Supreme Court and thus we would not have had Meir Shamgar, Aharon Barak or Beinisch as justices. ) And what is this "other context" - the friendship of a Supreme Court justice with a district court judge, which could be compromised if the district court's opinion is overturned by the Supreme Court?
Supreme Court President Asher Grunis, who put the team together, placed himself at its head. According to seniority, alongside him on the bench in this case should be justices Miriam Naor, Edna Arbel, Elyakim Rubinstein and Salim Joubran. However, only Joubran survived the selection process. The next most senior justices, Esther Hayut and Hanan Melcer, were also excluded. The final panel does include two justices who spoke out strongly last week against public corruption and breach of trust, but the more senior bench is considered more severe. The decision in the state's petition in the Olmert case will be made by a relatively convenient bench for the former premier.
From Naor to Melcer, all five did not recuse themselves. Someone stood in the way of Arbel, who as state prosecutor had dealt with Olmert's previous imbroglios, although she did so more leniently than severely. In 2008 Arbel agreed to a hearing of the early testimony of Morris Talansky, the dubious star witness in the "cash envelopes" affair, of which Olmert was also acquitted Morris Talansky, but she shared the bench in that hearing with Joubran.
If the Supreme Court is concerned about the appearance of justice, it must stop hiding the reasons for its choice of judges. The decision of the bench at Olmert's next and possibly last trial pleads for transparency.
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