Excerpts: Shrunken 'Arab street'. Retired Justice Shamgar on justice 14
March 2003
+++Al AHRAM WEEKLY 13-19 Mar.'03:"An uphill battle":
QUOTES FROM TEXT:
"the Press Syndicate organised a sit-in in solidarity with the Iraqi
and Palestinian people. Only 300 or so
of the nation's 4000 journalists, however, took part."

"In the aftermath of the 1967 war ... the Press Syndicate organised
rallies protesting the government's
policies that led to defeat."

"activists consider the massive 1977 bread riots as the end of 'an era
when Egypt's streets would bustle
with protests in reaction to every single national and international
event.' "

" 'The war on Iraq is the greatest threat the region has faced since
the First World War.' "

"A US invasion of Iraq ... would certainly boost Israel as a super
power in the region, which, in turn, would
also threaten Egypt's strategic position as 'a leading country in the
Middle East'."

"protesters also caled for the expulsion of the US and Israeli
ambassadors and the cutting off of all
political relations with the two countries.The participants also
demanded a boycott of all US, Israeli and
British products."

" 'The US should know there is no way the Arabs will end up like native
Americans.' "
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HEADING:"The poor turnout at a recent Press Syndicate sit-in against the war
was just the latest
manifestation of Egypt's critical lack of political
activism. Gihan Shahine investigates"
EXCERPTS:

With political parties and NGOs unable to mobilise any sort of effective
anti-war activities, a few prominent professional syndicates have stepped
onto .. political activism. The Bar Association, the Doctors' Syndicate and
the Press Syndicate have all attempted -- in recent weeks -- to provide
venues for anti-war activities, ....

On Saturday, the Press Syndicate organised a sit-in in solidarity with the
Iraqi and Palestinian people. Only 300 or so of the nation's 4000
journalists, however, took part. The appallingly low turnout was symptomatic
of the problems encountered by groups attempting to organise any sort of
public mobilisation effort against the war.

.... "Syndicates were highly engaged in political activism during the 1960s
and 1970s," reminisced Press Syndicate secretary Yehia Qallash. "There was
major interaction going on between the public and political powers in
general. And syndicates had an impact on policy makers."

In the aftermath of the 1967 war... the Press Syndicate organised rallies
protesting the government policies that led to the defeat. "Cairo University
students took to the streets in protest and marched down to the syndicate
headquarters. ..."

The late 1970s, however, witnessed a gradual demise in political activities.
In fact, political activists consider the massive 1977 bread riots as the
end of "an era when Egypt's streets would bustle with protests in reaction
to every single national and international event."

Today, the more likely scenario is -- in Qallash's words -- "a rally of 300
people cordoned by some 3,000 anti-riot policemen using tear gas and batons
to disperse the protesters."

The emergency law -- in force since ... Sadat's assassination in 1981 -- has
a lot to do with the change. Its imposition of a strict ban on street
protests, Qallash said, "coincided with the establishment of anti-riot
police forces who usually outnumber protesters."

Despite the limitations, however, syndicates continue to try to mobilise
people for certain causes. According to Ahmed Seif El-Islam Hassan El-
Banna, secretary-general of the Bar Association and a leading member of the
outlawed Muslim Brotherhood (his father founded the group), "not a day has
gone by without syndicates holding an anti-war activity."

El-Banna said "we could definitely mobilise more rallies if the government
allowed street marches. But this is a time when all national powers should
stand united in the face of external threats, and we don't want to be in
confrontation with the government."

In fact, in terms of public mobilisation, the Bar Association is seen as one
of the most active of all syndicates. Over the past two months, it has
organised public meetings and demonstrations, hung up banners on its
headquarters, distributed leaflets, and issued statements denouncing the US
and Israel as "one real enemy" and calling on "Arab and Muslim states to
awaken from their slumber." Statements by the Islamist-dominated association
have also called upon the government to send military convoys to Iraq, open
the door for jihad in Palestine, and allow protests to take place in the
streets.

The association's headquarters have also been a venue for meetings of
different political parties, student activists, and members of the Arab
Lawyers' Union.

. . .

The economic policies of the 1970s also dealt syndicates' political roles a
serious blow. As a significant demise in the financial status of the middle
class took place, syndicates began to shift their focus to providing social
services for their members. This increased their financial burdens and
encouraged members to elect service-providers rather than political
activists as syndicate chairs.

"It's deplorable how syndicates work today," Qallash said. The Bar
Association spends much of its time dealing with the unemployment crisis in
the legal field, while the Doctors' Syndicate exerts much of its efforts
providing commodities for its members on credit.

If anything, though, the current state of Arab affairs, with the impending
threat of war on Iraq, and a worsening situation in the Palestinian
territories, seems to have re-galvanised syndicates into action.

. . .

It is high time that people wake up from their slumber," said Abdel-'Al
El-Baqouri, deputy- chairman of the Press Syndicate and chief-editor of
Al-Ahali, mouthpiece of the leftist Tagammu Party. "The war on Iraq is the
greatest threat the region has faced since the First World War."

A US invasion of Iraq, El-Baqouri explained, would certainly boost Israel as
a super power in the region, which, in turn, would also threaten Egypt's
strategic position as "a leading country in the Middle East." In fact,
insisted El-Baqouri, "on the economic and political levels, Egypt is the
country most endangered by the US occupation of Iraq. Arab leaders
misconceive the US threat as only endangering nations and lands, but
governments will also be at stake. ...."

Much the same thing was being said at this week's poorly attended Press
Syndicate rally, where protesters also called for the expulsion of the US
and Israeli ambassadors and the cutting off of all political relations with
the two countries. The participants also demanded a boycott of all US,
Israeli and British products.

The syndicate's Arab Affairs Committee had previously issued a statement
calling on the Egyptian government to reconsider its bilateral relations
with the US administration in light of American support for Israeli
atrocities. The committee also called upon journalists to donate one day's
salary towards efforts to gather aid -- in the form of medicine, food and
children's milk -- for Iraq.

But how far can rallies and slogans help in averting the danger? "It's all
we have in our capacity as syndicates," Qallash said, "but history has also
proven that words can be more effective than weapons of mass destruction. If
rallies persist, governments will not be able to ignore the demands of their
people forever. And I believe public spirit will never die out as people
have managed to overcome tougher adversities throughout history. The US
should know there is no way Arabs will end up like native Americans."

+++HA'ARETZ 13 Mar.'03:
"Don't throw out the baby with the bathwater"

HEADING:"Retired Justice Meir Shamgar, in an exclusive
interview with Haaretz, talks about the functioning -
wise and otherwise - of the Supreme Court"

By Moshe Gorali

QUOTES FROM TEXT:
"Shamgar objects ... to Barak's contention that every matter
is normatively adjudicable."

" 'in a democratic regime, separation of the branches must
be upheld.' "

" 'I am opposed to establishing a separate court for
constitutional matters ... the existing system should be
preserved.' "

"Shamgar ... served on commissions that investigated the
massacre at the Tomb of the Patriarchs and the
assassination of Yitzhak Rabin. Shamgar refuses to see
these episodes as a legitimate threat of religious
fundamentalism to the fragile democratic fabric of Israel.
'Both instances are expressions of personal criminal
acts.' "

"Shamgar has promoted ... the oversight by the High Court
of Justice of Israel Defense Forces activities in the
territories."

"He is not sorry today about the verdict - perhaps the most
controversial in Supreme Court history - that enabled the
deportation of 400 Hamas members to Lebanon in 1992."

"The liberal side of his character was embodied in
numerous verdicts that championed freedom of
expression."

" 'I always liked the idea of an ombudsman' "

" 'I have always been oposed to the system of 'seats' ' "
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EXCERPTS:

Meir Shamgar has held three lofty positions ...: chief military prosecutor,
legal adviser to the prime minister and president of the Supreme Court. In
both of the two latter positions, he was succeeded by Aharon Barak. ...
Shamgar has a more modest, more conservative perception of what the position
entails. For example, in a rare interview with Haaretz, he expresses
reservations about the reverberating rhetoric of Barak, who termed the Basic
Laws passed in 1992 and 1994 (Human Dignity and Freedom, and Freedom of
Occupation, respectively), a "constitutional revolution."

"In my opinion, making that sort of all-embracing claim to a `constitutional
revolution,' which ostensibly took place in 1992, is a mistake," says
Shamgar. "After all, it was as early as 1958 that the Knesset set a
limitation on ordinary legislation that contradicted principles - including
the principle of equality - that had been determined in Section 4 of the
Establishment of Knesset Law: that is, that they could only be amended by a
absolute majority of 61 members of Knesset. ...

Shamgar objects as well to Barak's contention that every matter is
normatively adjudicable. "The theory that `everything is adjudicable can be
determined judicially' is not the opinion of the Supreme Court, at least not
of most of the justices. Adjudicability means that the court is authorized
to decide on any matter, while I believe that the court is authorized to
decide only on issues that have a clear and dominant judicial character.
... Barak contends that there is no action to which the law does not apply.
In his opinion, the court was mistaken when it decided in the matter of the
pact of the first German ambassador to Israel that it was an issue of
foreign relations that should not be examined in court. In my opinion, this
and other sorts of issues, that have to do with government policy, cannot be
grouped with those that are appropriate for clarification in court. This
could give rise to fears that the court is treading on the territory of the
other branches of government. In a democratic regime, separation of the
branches must be upheld. ..."

... President Barak expressed remorse two years ago that the expression,
"everything is adjudicable," had provided political ammunition for
broadsides against the Supreme Court.

. . .

Two years ago, Justice Barak waged an aggressive, emotional media campaign
against the proposal to establish a Constitutional Court. Shamgar's voice
was barely heard at the time. He now says: "I am opposed to establishing a
separate court for constitutional matters, and believe that the existing
system should be preserved. Supporters of the Constitutional Court are
looking for a different human makeup and content than that which now exists,
meaning that the court, as we know it, will not decide on constitutional
matters ...One must be careful not to throw out the baby with the
bathwater."

. . .

Personal crimes

Shamgar ... served on commissions that investigated the massacre at the Tomb
of the Patriarchs and the assassination of Yitzhak Rabin. Shamgar refuses to
see these episodes as a legitimate threat of nationalist religious
fundamentalism to the fragile democratic fabric of Israel: "Both instances
are expressions of personal criminal acts.

[IMRA: Unfortunately this interview does not amplify this issue which
splits the nation.

The first touched on the saddening and painful aspects of the war between
the two peoples. The assassination of the prime minister is a despicable
crime by an individual, and the perpetrator should not go without the
characterization of the criminal and moral maliciousness, even if he acted
as a result of a political struggle prior to the assassination. What he did
cannot be considered a legitimate or human expression of that struggle."

... Shamgar has promoted ... the oversight by the High Court of Justice of
Israel Defense Forces activities in the territories. Now he is asked to
comment on the possibility that these activities will soon be judged ... in
Belgium or before the International Criminal Court that is now being
launched. "States that take on themselves universal judicial jurisdiction
usually direct their efforts at foreign citizens, not their own citizens.
This is true for Belgium, in terms of what transpired in Congo (now Zaire).
... In our courts, we have judged those who have committed violations of
the laws of war in our own country.

"I do not know how exposed Israelis are to the danger of being brought
before the International Criminal Court. ... The issue is whether it will
be a professional or a political tribunal. The Rome treaty did not guarantee
that the court would avoid engaging in politically disputed areas. Through
pressure by the Arab states, the list of crimes that are subject to the
court's jurisdiction includes the subject of settlements. To my mind, that
is a distinctly political matter. Not everything that an occupier does in
the land under his control is a war crime. ... ."

In August 1944, the Etzel ... soldier Meir Shamgar was exiled to a
succession of British detention camps ... . Perhaps influenced by this
experience, during the first intifada he saw fit to visit detention camps
housing security detainees at Ketziot, in the Negev, and Daharia, near
Hebron. He left his security guards behind, and walked into the prisoners'
tents to sit with them, to the great anxiety of his escorts.... However,
along with his human and professional fairness, Shamgar was known as a
security-minded justice ... . He is not sorry today about the verdict -
perhaps the most controversial in Supreme Court history - that enabled the
deportation of 400 Hamas members to Lebanon in 1992. If he is sorry about
anything, those close to him say, it is the fact that they returned to
Israel a year later and served as gasoline on the bonfire of terror.

Shamgar's security consciousness was also revealed in his attitude toward
exemption arrangements for yeshiva students. "It irks me that some of those
who are required to enlist are not drafted," he says. ...I felt that the
issue had to be examined on the basis of principles of equality. That is why
at one point I included administrative guidelines in one of my verdicts that
was related to this matter, that the issue should be reviewed by the
minister of defense on a periodic basis, once a year. In my opinion, a
yeshiva student is not exempt from the obligation every citizen has to take
part in defending the country in which he lives. A solution can be found by
forming separate units, or in other like ways."

.... The liberal side of his character was embodied in numerous verdicts
that championed freedom of expression from a variety of angles, including
tolerance toward journalistic confidentiality. . . .

"I am not always pleased with how the media actualizes the values of freedom
of expression. I'm not fond of the media's engagement in cheap scandals or
the loss of a compass heading as regards the preservation of the country's
values, which at times happens. But there is never justification for
imposing restrictions or prohibitions. It is important that the media
recognize the values through which it itself exists and operates. But I have
always accepted the fact that freedom of expression assumes manifold forms.
That is the beauty of the game."

In recent years, the courts have been subject to various initiatives 0 ...
to enhance supervision and oversight of how the judges and courts operate.
Shamgar relates to three of them: the feedback on judges that is tabulated
by the Israel Bar (which on Tuesday decided not to do so this year), and two
laws - one that established the post of an ombudsman to hear complaints
about the courts ... the other law sets an upper limit of time by which
verdicts must be handed down, first setting it at ... 30 days after the end
of the trial.

Shamgar is not afraid of these initiatives, and even supports some of them:
"I don't think these initiatives are dangerous, even though I don't always
agree with them. I was opposed to the feedback. It isn't good for a judge to
have to worry about how he is going to be graded for the verdicts he hands
down, when the ostensible pretext is scrutinizing the way he acts in court.
In my opinion, the establishment of an ombudsman will balance this out. ...
I always liked the idea of an ombudsman, albeit in a more modest format than
that called for by the law. [I envisioned an ombudsman] that would be part
of the State Comptroller framework. That way it would also be more
economical for the state, in terms of budget."

..."It is very important to address the subject of delays in handing down
verdicts," says Shamgar. "I am extremely unhappy when I hear of cases in
which the sides had to wait three or four years for a verdict. In my
opinion, that constitutes harm to the doing of justice. ... Shamgar is in
favor [of "transparence"]: "The finest people should be appointed to the
court, while paying attention to the need for variation of the population. I
have always been opposed to the system of `seats.' Having a Sephardi seat is
ridiculous. There were times when three or four members of the Sephardi
community were on the Supreme Court, and there is no logical limitation, or
any limitation of any other sort, on this number. There are now four women
on the court, and it isn't over yet. I believe that an Arab justice will be
appointed, as well. I worked quite a lot with Justice Ministers Meridor and
Libai for the appointment of Arab judges to the magistrates and district
courts, so that one day there would be a greater chance for them to make it
to the Supreme Court. There has to be a mix in the court. Not everyone
should come from the civil service. It would also be good to have
representation by academic circles and the private economy. ..."

. . .

...Shamgar ... is disturbed by the issue of plea bargains. ... : "I would
want that a plea bargain be reached only when it is certain that the
public's interests are being upheld by the results of the case. I am opposed
to plea bargains that are motivated solely by a desire to close files and
reduce the backlog. I am opposed to agreeing to an unreasonable punishment
only because the defendant does not agree to a deal in which he will
received a harsher punishment. ...."

Shamgar is distinctly unhappy about a judicial mind-set that is inclined to
favor the interests of the criminal over those of the victim. "In my mind,
it is vital that the level of punishment for crimes, common or serious, be
reflective of the increase in crimes and the harm they do to the public.
Criminal justice has to protect the weak - children, women, old and ordinary
people - and respond at the proper level to all types of criminal activity."

Dr. Joseph Lerner ,Co-Director IMRA