Analysis

Don’t the Rules Also Apply to Israel's Supreme Court President Esther Hayut?

We don’t know if Hayut tried to get more information from Hila Gerstl, a judge reportedly offered a bribe by a Netanyahu crony. What we do know is that she just swallowed hard and moved on

Ravit Hecht
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Israeli Supreme Court President Esther Hayut.
Israeli Supreme Court President Esther Hayut.Credit: Olivier Fitoussi
Ravit Hecht

It’s the day after Supreme Court President Esther Hayut explained why she didn’t report what her colleague had told her, and one’s stomach is still turning.

Hayut heard from retired Judge Hila Gerstl that during her candidacy for the post of attorney general, a close associate of the prime minister had been sent to get clarification in advance of her position on a case involving Sara Netanyahu. According to Hayut, Gerstl did not provide any details and told her about the approach after the fact, which according to her exempted her from any responsibility to the public to report it to the authorities. It seems the moral responsibility that we would expect from any citizen does not apply to her.

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It must be stressed that we aren’t talking about Hayut’s judicial or legal obligation, but her responsibility to the public to report improper conduct in the process of appointing the most important official in the law enforcement system. The obligation to the public is to report it, not to keep it to oneself. According to Hayut, because of the lack of details and the vagueness of what Gerstl chose to tell her, she could do nothing.

This explanation convinced many jurists. “We’re talking about partial information that Gerstl told her as a friend, and Hayut wasn’t then court president,” said the respected legal expert Prof. Mordechai Kremnitzer. “It was the report of a friend to a friend; Gerstl isn’t a high school girl who was coming to her elderly aunt for advice on how to respond. She’s an autonomous person who stands on her own two feet. She made a decision about what she was going to do or not going to do with this.

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“Therefore, I believe Hayut had nothing to report. The story told to her had no details and no names, and no normal person would go with this to the police unless he wants them to laugh at him,” Kremnitzer said.

By contrast, there are those who believe that even if the story told to Gerstl was partial and vague, it’s hard to describe the information given as a rumor. This wasn’t a baseless suspicion; on the contrary, Gerstl told Hayut that she was horrified by what transpired.

We don’t know if Hayut tried to get more information from Gerstl or urged her to report the incident herself. What we do know is that Hayut just swallowed hard and moved on.

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“The question of whether or not she had details isn’t an answer [expected from] the Supreme Court president, but an answer [expected from] a defendant in Local Affairs Court,” said a judicial colleague. If that’s how such a senior law enforcement official acts when she hears how they tried to buy an attorney general, one wonders what the ordinary person would say.

Many jurists assume that Gerstl, who is considered a fair and honest person, found herself in serious conflict when confronted by the intermediary sent to ask for this clarification. That she was embroiled at the time in a tough dispute with the legal establishment over her role as the prosecution ombudsman, causing a great crisis of confidence between here and the state prosecutor and the then-attorney general, certainly didn’t make it easier. And the bottom line is that Gerstl was the target of a bribe offer that she categorically refused.

Many sources in law enforcement know about unethical and even criminal acts committed by colleagues yet remain silent. Only two-and-a-half years ago it emerged that a colleague of Nazareth District Court Judge Yitzhak Cohen knew of his acts of sexual harassment, as did the local state prosecutor, but they did nothing. There was another local state prosecutor who didn’t ask any questions when one of her lawyers quit without notice because of what later turned out to be an improper relationship with a superior.

The story of Nir Hefetz’s alleged offer to Gerstl was uncovered by chance and requires some soul-searching by those who deal with such things, but we cannot for a minute forget what the real story is. “I suggest that we don’t submit to the spin job that puts the onus on these two women,” said Kremnitzer. “The horrible thing is that someone dared to send a friend as an emissary with this kind of offer.”

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