Legal Studies / Justice, Justice Did She Pursue

Dalia Dorner had the very opposite of the privileged upbringing so many associate with 'elite' Supreme Court Justices. Perhaps it was those modest origins that made her legal opinions so full of empathy and social sensitivity.

Sefer Dalia Dorner (The Dalia Dorner Book), edited by Shulamit Almog, Dorit Beinisch and Yaad Rotem Nevo Publishing (Hebrew), 597 pages, NIS 285

The Festschrift for retired Supreme Court Justice Dalia Dorner refutes a number of familiar, and very unpleasant, claims and generalizations about the Court. Most notable is the demagogic accusation that all of its justices - at least until recent years - have been products of the indulged and self-satisfied elite identified with Jerusalem's Rehavia neighborhood. Anyone who reads Dorner's memoir, which opens the book (as with other such volumes published after a justice's retirement, the volume includes tributes from colleagues on the High Court and articles on legal topics by former colleagues and clerks), will learn that the entire trajectory of her difficult life until reaching the Court bench was as far from privileged as east is from west.

She was born Dolly Greenberg in Turkey in 1934, to a merchant father who lost all his assets and was incarcerated in a work camp. When she was 10 years old, shortly after she immigrated to this country with her parents and her younger brother, her father died of cancer and the two children were sent to a boarding school in Nahariya. The conditions there were hard and, as she says, "We were always hungry." She was often called in to comfort her brother, who wept bitterly, but no one took on the job of comforting her. She had to relinquish the two beloved dolls she had brought to the institution, which brought a modicum of warmth to her while in bed, because of the spiteful teasing of her roommates.

Thanks to her academic performance, Dorner received a scholarship to the Reali high school in Haifa, but there too she was ignored by her native-born schoolmates and suffered from terrible loneliness. "All those years at the Reali I had neither a girlfriend nor a boyfriend," relates Dorner. "I remember that my mother was very worried, and I, so as not to explain to her what was going on, would disappear from home, walk around, and tell her that I had been visiting people."

From the age of 14, Dorner had to work in order to help support the family. After school, for five hours a day, she would give private lessons to younger children. She began studying law at night school while still doing her military service as an officer in the Intelligence Corps. After being discharged, she completed her studies at the Hebrew University in Jerusalem, while continuing to work in Tel Aviv as a civilian employee of the Israel Defense Forces. For 12 years she lived with her husband and their two sons in the Shikun Olim housing project in Ashdod, alongside immigrants from Morocco, Romania and Algeria. Those were also the years during which she developed her legal career in the military - first as a defense attorney and then as a military judge. When she joined the Judge Advocate General's office, there was only one other woman there. "I thought," she said, "that being a woman in the army was like being a Jew among gentiles. If you weren't especially good - you would not succeed ... I devoted a lot of effort and work to this."

Dorner also began her career as a civilian judge the long, hard way - first as a peripatetic judge in outlying areas of the country, mainly in the Negev.

Not glorifying the great

It is easy to form the impression from the book that the obstacles and potholes in Dorner's personal and professional path left a clear impression on her judicial rulings. As she says of herself, "I have a great deal of empathy for people whose lives are hard, and antipathy to social arrogance."

And indeed, Dorner, who served on the Supreme Court from 1994 to 2004, was known as the Court's standard-bearer of social rights. As Prof. Dafna Barak-Erez and Dr. Eyal Gross note in their article on this subject, she went further than her colleagues in the judicial recognition of these rights - especially the right to livelihood with dignity, the right to an education in general and the right of children with Down syndrome, in particular, to have equal access to education. Unlike most of her colleagues, she did not content herself with mere rhetorical recognition of these rights, but demanded of the state that it translate them into budgetary allocations.

Dorner displayed this same social sensitivity recently as head of a public committee that dealt with the education of children with special needs, and also as head of an official committee of inquiry into the treatment of Holocaust survivors (in the latter case she not only published the recommendations, she also appeared in the media in order to apply pressure for their swift implementation).

Dorner's "empathy for people whose lives are hard," and especially her "antipathy to social arrogance" appear to find their expression in her rulings in the criminal realm. On the one hand, she fought the unbearable lightness with which the police in Israel arrest ordinary suspects, especially those who lack the benefit of sophisticated legal representation. On the other hand, Dorner stood out for her insistence upon exacting justice, with no discounts, from powerful people. As attested to in the article by Prof. Mordechai Kremnitzer, Dr. Khaled Ghanaim and Alon Yaffe, "Though it cannot be ignored that Justice Dorner was helpful to the needy, there is no doubt that she faced the important and more difficult task of 'not glorifying the great' more successfully than her colleagues."

Thus she disagreed with her Supreme Court colleagues when they acquitted the late Jewish Agency chairman Simcha Dinitz of theft, on an appeal in 1997. Dinitz had been convicted two years earlier of using a Jewish Agency credit card for personal expenses. Dorner also held, in a minority opinion, that there was a basis for criminal proceedings against then-prime minister Benjamin Netanyahu (in the so-called Bar-On affair), in 1997, when he appeared to have appointed an attorney general in accordance with the dictates of criminals, most notably Aryeh Deri.

Her determination to see the guilty brought to justice never dimmed Dorner's allegiance to the principle of innocence until proven guilty and the principle that only proof of guilt beyond all reasonable doubt can and should be the basis for a conviction. "If there is doubt," she says, "you don't punish a person, you acquit him. These are the ABCs I was educated on. Even if you bring me a person I am convinced is a murderer, but the evidence arouses doubt, it is necessary to acquit him."

Therefore she admits courageously that even though she was among those who sentenced concentration camp guard John Ivan Demjanjuk to the gallows in his original trial in Jerusalem District court in 1988, and despite her personal belief in his guilt - in the wake of the additional evidence that came to light during Demjanjuk's 1993 appeal, she too would have revoked the conviction and released him, which is exactly what the Supreme Court did. The very same outlook caused her to decide on a retrial for convicted murderer Amos Baranes, even after three judges more veteran than she had rejected his request, thus paving the way to his acquittal. Similar considerations prompted her to state in a minority opinion that Suleiman Abeid, a Bedouin man, should not be convicted for the sensational 1993 murder of the Jewish teenager Hanit Kikos.

In praise of equality

Unlike her colleagues (among them former Court president Aharon Barak), who based themselves exclusively on a literal-formalistic interpretation of the law, Dorner preferred to cite a wealth of non-legal sources that speak in praise of equality among all people and the necessity of a just society. In her opinions in the Miller and Danilowitz cases alone, these sources included Psalms, the works of thinkers Ludwig Wittgenstein, Catherine MacKinnon and Michel Foucault, and the poetry of Alfred Lord Tennyson.

Contrary to the image perpetuated by Barak's critics and enemies, Alberstein's article proves once and for all that not he, but rather Dorner, was the "most anti-formalist" (and if you like, the most activist) in her reasoning among Supreme Court justices.

Her clearly values-based activism stood out not only in the social realm but also in the area of security. Despite her long years as an IDF officer, or perhaps precisely because of them, Justice Dorner evinced more criticism and suspicion than any of her colleagues toward arguments from the military and security establishment. When she was still in uniform, she relates in her autobiographical essay here, she rebelled against the chief of staff's authority to intervene in decisions of the judicial ranks in the army, and along with then-Supreme Court Justices Meir Shamgar and Mishael Cheshin, was a member of a committee that recommended (in vain) to the Knesset that it revoke this authority. Just as in the High Court she compelled a chauvinist air force to allow women to compete for training as pilots, she compelled defense minister Yitzhak Rabin to allow bereaved parents a personal inscription on their children's tombstones in military cemeteries (in the Weichselbaum case). In this ruling she again relied not on formalistic-legal arguments but rather on citations from philosophy and literature (including work by Israeli author Yehudit Hendel), which convince outright that the fallen are not "the army's" or "ours," but rather above all they are their parents' children.

This answer reflects Justice Dorner's consistent position in petitions against the army and the security organizations. Even during the period of the harshest and most horrendous terror attacks, she refused to see the security argument as the ultimate laundry soap that washes away everything else; and even on this explosive issue, she was not deterred from conflicts with more veteran and senior justices, including Barak himself. The sharpest and most dramatic conflict of all occurred during the deliberations on the petition by Lebanese abductees who were being held as bargaining chips in return for information on the fate of captive navigator Ron Arad. Justice Dorner - contrary to Justice Barak and the majority on the Supreme Court - was not prepared under any circumstances to approve the continued holding of the men when they did not pose any palpable security risk. It is interesting that three years later, when the affair came before the Court again, Barak was convinced by her arguments and adopted her position. As he notes in his remarks in the book, "I admitted my mistake."

Other justices continued to disagree with him as well as with her on the case. This affair, too, in its various phases, can apparently refute the image of the High Court of Justice as a monolithic body of which the president is "a legal dictator" who makes the justices dance to his tune.

'Sense of public mission'

Another pernicious image is that of the High Court of Justice as "a branch of Meretz," which, according to the stereotype, defends human rights only when the human involved is a leftist or a Palestinian. The rulings handed down by Dorner that make an appearance in the book clearly deflate this image as well, especially when it comes to defending freedom of speech. From those same value justifications with which she defended the right of director Mohammad Bakri to publicly show his 2002 film "Jenin, Jenin," which reviles the IDF, she also defended extreme right-wing activist Meir Eindor's right to put up posters in Jerusalem reviling then-MK Yossi Sarid of Meretz. She also refused to approve the administrative detention of Rabbi Yitzhak Ginzburg, author of the book "Baruch Hagever," which justified the massacre of Palestinians carried out by Baruch Goldstein in the Tomb of the Patriarchs in 1994, despite the fact he called upon his students to harm Arabs. Justice Dorner held that all speech must be protected equally, be it political or racist, artistic or pornographic, truth or lies, a work of art or a vulgar advertisement.

Her sweeping position on this issue was controversial, even within the High Court itself. Justice Cheshin was strongly opposed to it, and declared that not every "tummy rumble" was an utterance worthy of equal legal protection. Her willingness to defend the publication of pornography is subjected to harsh criticism even in the book itself. In a stunning article, Dr. Zvi Triger warns that the High Court of Justice's attitude toward pornography as expression that should be protected debases the dignity of women and the equality between the sexes - two values that are, as noted, very dear to Dorner - because the pornography industry depicts women as convenient objects for men's sexual use, exploits and humiliates the women depicted in it, and also threatens the well-being of other women. He quotes research by Dr. Orit Kamir, who has defined pornography as "documented prostitution" and has published testimony from women about how "fathers, partners, employers and strangers have forced upon them the sexual acts they did not desire" under the inspiration of pornographic films.

Justice Dorner's uncompromising zeal for freedom of speech is what no doubt led her to agree three years ago to head the Press Council. I was very glad to read in the book that it is her intention to fight not only for freedom of the press but also for journalistic ethics. I agree with her entirely that a close connection exists between the two, as she states, "Because an unethical press is a bad press, and it will also be easy to harm its freedom of expression."

To this I will take the liberty of adding that, in my opinion, ethical violations deriving from economic and commercial pressures, which often take the form of self-censorship, today pose a threat to freedom of journalistic expression and the public's right to know that is at least as dangerous as government censorship.

Dalia Dorner's qualities, as they emerge from this book, and above all "her acute senses, her sense of public mission and her great courage" (in the words of current Supreme Court President Dorit Beinisch) afford a basis for hope that under her determined leadership journalists of integrity will be able to cope with this threat as well. Moshe Negbi is a legal commentator for Israel Radio and a senior lecturer at Hebrew University.