"You understand that declaring a prime minister a prisoner is an unconventional weapon, there is no such authority," states attorney Yochi Gansin, a senior member of the Ministry of Justice who served for over 30 years as a lawyer in the High Courts Department of the Prosecutor's Office and was recently the legal advisor of the House of Representatives Service the warden In the first interview, she refers to the legal reform of the Minister of Justice Levin, partly she welcomes and partly she attacks, and presents a critical, deep and complex legal position, one that is rarely heard from jurists in the public discourse.
She drops the issue of Christianity from the agenda very quickly.
"Fundamental law: the government establishes a framework for impeachment only in the absence of an objective ability of the Prime Minister to serve in his position, such that it can be quantified, such as a medical condition.
The law does not authorize anyone to declare a prime minister impeached because he is unfit, due to problems of conflict of interest.
"In the Bnei Yeshiva High Court it was determined that it is impossible to perform an administrative action without express authority in the law.
The High Court of Justice ruled, for example, that in the absence of express authority in the law, it is not possible to deny residency to terrorist operators. So, in the absence of authority, can a prime minister be taken into custody? What's more, even the powers of the ombudsman themselves are not regulated at all.
Fundamental Law: The government is a regime law that establishes the fundamental principles of the system and according to which there are no barriers, so either we adhere to the fundamental principles or we don't."
And what if Netanyahu leads the legislation of a French law or immunity that will cancel his ongoing trial?
"If such a law is enacted with a majority of, say, 64, is the law illegitimate? After all, there are countries in the world where it is impossible to conduct criminal proceedings against a sitting prime minister. In a situation where almost every prime minister has a criminal case opened, the Knesset can enact a law that only Netanyahu will benefit from But all the following Prime Ministers, as a matter of principle.
To this day, Netanyahu has not put his hand in the fire and has not done it, and in my estimation he will not do it either."
A sentence is not math
She grew up in Rishon Lezion in a financially well-off household, to Holocaust survivor parents.
While studying in high school, she ran hurdles until her coach, the late Amitsur Shapira, was murdered in the Munich Olympics. In high school, she studied Arabic, which later brought her to Unit 8200 of the IDF Intelligence as a translator.
Her mother died when Gansin was only 20 years old, and her father passed away in recent years.
Her husband is a lawyer himself, they live in Lapid settlement, near Modi'in, and they have three children.
"Aharon Barak, as a young judge, wrote in 1976 that a demonstration in front of Rabbi Ovadia Yosef's house violates the privacy of the residents of the street. Compare that to the High Court of Justice demonstrations in front of Mandelblit's house.
Privacy and movement have been replaced by freedom of demonstration"
She started her steps in the Ministry of Justice on the left foot.
Despite being an excellent student at the Hebrew University who dreamed of representing the country in the High Courts Department of the Prosecutor's Office, she did not pass the interview for the internship in the department. While she was walking disappointed back home in the corridor on the first floor of the Ministry of Justice building in Saladin, she was met by the late Aryeh Kemer, director of internships at that time, and unexpectedly offered her an internship with no less than the director of the High Courts Department - Yarak.
"Immediately we had good chemistry," she says.
Already at that time she began to deal with the largest petitions in the country, such as the one submitted for the disqualification of Meir Kahana, and participated in all the top meetings of the Ministry of Justice.
After her internship at the High Courts Department, she worked in the legal consultancy of the Income Tax, and in 1986, Dorit Beinish, later the State Attorney and Supreme Court Judge, drew her back to the department.
The debate is about judicial review.
Levin and Rothman, photo: Oren Ben Hakon
For more than 30 years, Gansin served as a senior attorney in the department and represented the country in dozens of large and famous High Courts. And as Galgal turns, as part of her role she was responsible for accepting interns for the department. "It was important to me to recruit interns who are not only Ashkenazi, like the majority there, but Bring also from the periphery, religious and ultra-Orthodox.
Not as identity politics, but from a concept that says that if the department examines the policies of government ministries, a spectrum of populations will bring broader thinking and diverse ideas to the department.
"My approach from then until today is that because the ombudsman has a monopoly on representation and his order is binding, he should do almost everything to protect the government's position and its authority and establish a legal impediment only in cases where the decision is clearly illegal at the level of a black flag.
"Judgment is not mathematics and there is no certainty. You need to understand the purpose and purpose behind a minister's decisions, what are the considerations and what are the available data - and make every effort to represent his position. My judgment must not replace his judgment. If there is another senior jurist who can reach a different result From me, then it is impossible to determine that there is a legal impediment. If there is a legal difficulty - it can be allowed. I represent the public."
the public interest.
"No, the public interest is expressed through the elected officials. What tools does a jurist have to assess for himself what the public interest is? After all, what is the public anyway - the ultra-Orthodox or the secular? The way to extract the public interest is through the elected officials, and if the decision is legal and for a proper purpose - then it is an interest The public. The jurists' theory that they can identify the public interest is crooked, it's a valve term, a tool for the jurist to reach the result he wants. I really dislike this expression that does not bring jurists to do justice."
Devaluation of individual rights
Three times the infiltrators law was invalidated by the High Court, the first two times it was Gensin who represented the state. "These are cases that I am very proud of even though I lost - the first time they were invalidated, and the other two times they were invalidated even though the Knesset enacted exactly according to the court's instructions.
I was there, the court saw before its eyes only the right to freedom of the infiltrators and not the interest of the residents of South Tel Aviv who paid the heavy price.
"But it also concerns the general public. The infiltrators do not pay health insurance. When an infiltrator gives birth, she does not pay to Ichilov, and so the public pays. The court did not agree to include the residents of South Tel Aviv in the petitions, so I went to them and argued about what was happening to them, about the harm to security , for the violation of their human dignity. Are there suddenly no rights derived from human dignity and freedom? These people have no one - they do not have the center for refugees and immigrants, or the Association for Civil Rights, the residents of South Tel Aviv are not represented by anyone. The violation of them has not received enough weight in court".
"I had an argument with Aharon Barak at the Family Reunification High Court.
I told him: the most important right is the right to life, the Israelis' right to life, and the reunification of Palestinian families is life-threatening.
The right to life and security is a registered, explicit right, and I prove that family reunification will lead to attacks and deaths.
Barak told me: 'So what you're saying is actually that the right to a family life in Israel is opposed to the interest of the state's security.'
I told him: 'No, sir.
You reduce the right to life, which is a constitutional right of the Israelis, to the level of the national security interest which is less, while you elevate the Palestinians to the right to family life.'
"Then what? A judge will say that the same result can be reached in another way with less harm to the right. In this way, a judge puts in what he wants, he assumes what is requested, he determines that it is more correct to act in the way he thinks it is correct to act. Not to mention that the right to life A family that Barak derived from a basic law: human dignity and freedom, from which any right can actually be derived. The right to life is the mother of all rights, without life there is no freedom. After that are the rights that maintain the political framework, such as freedom of expression and demonstration, voting, etc."
So why were the residents of South Tel Aviv ignored, and Barak sought to favor the rights of the Palestinian families?
"In the last 30 years, we have gone through a revolution - from democracy to European liberal democracy. Under legal auspices, a kind of change of values was made towards progressive liberalism. In '76, a petition was filed against the police by a protest that wanted to demonstrate in front of Rabbi Ovadia Yosef's house. Aharon Barak, then a young judge, He wrote that the demonstration infringes on the freedom of movement and the privacy of the residents of the street. The demonstrators will be honored to demonstrate in front of his office, where he carries out his public activities.
"Compare this to the High Court, the demonstrations in front of the house of the Ombudsman Mandelblit. The balance between the right to privacy and freedom of movement and the freedom of demonstration has changed. What has changed? Why is what was true in the 1970s not true today? Why is the right to demonstrate not realized when demonstrating in front of the office Mandelblit's? Why harm his family and neighbors? Or this thing that blocks roads to shock. There is no such right, it is a violation of the law. The new liberal democracy sanctified the demonstration and its power allows the rights of citizens to be violated. In situations of conflicting rights, the judge has to balance, and he makes the preference on according to his values".
demography?
National security
According to Gansin, the value change in the legal world does not originate only in the High Court but also in the left and human rights organizations. "After the High Court expanded the right to stand and allowed public petitioners to submit petitions even though they were not directly affected by the decision or law, they grew like mushrooms after the rain All the civil society organizations or human rights organizations that are actually intended to implement European liberalism standards in the State of Israel. I also think that the weight of the organizations exceeded the weight of the private petitioner, the citizen.
"Just this week, a friend called me who petitioned against the Ministry of Health because after the mental health reform, children and teenagers are forced to wait for treatment for many months, and as a result there is a problem of suicides. But what, he petitioned already two years ago, and not even a conditional order was issued. He called me frustrated And in the case this week it was also announced that according to the report of the Council for Child Safety there is a 67% increase in suicide attempts among children and youth.
"If there is evidence, then they destroy, and not just two rooms."
Demolition of terrorist houses, photo: EPA
"So there is no time for poor mentally challenged boys, but in order to impeach Deri on grounds of reasonableness, 11 judges appeared very quickly. These are values that have penetrated politics. Health Minister Nitzan Horvitz has devoted a great deal to ensuring funding for gender reassignment surgeries, but what is he doing for the benefit of mentally challenged people ?
"Notice, for example, the difference between the PSD Yardor in 1965, when without authorization in the law and according to the description of a defensive democracy, the High Court dismissed a party and called for the enactment of a law to disqualify candidates and lists. After enacting Section 7a of the Basic Law: the Knesset, the High Court introduced all kinds of tests that in practice reduced the possibility of disqualifying a party that denies the existence of Israel as a Jewish and democratic state.
In the 1960s, the value of defensive democracy prevailed over the right to be elected, and today it has been reversed.
"In the case of the denial of residency to members of the Palestinian parliament on behalf of Hamas, the court ruled that there is no express authority to deny.
In another proceeding regarding the denial of social security rights during the detention of a minor who committed terrorist attacks, the court issued a nullity notice.
These are more examples of the sanctification of individual human rights over the public interest."
At the High Court of Family Reunification, she argued that this should be prevented because of security considerations, considerations that seem to disguise the real reason, which is demography. The State of Israel is Jewish and democratic not because of the Declaration of Independence or any other normative source, but because of the opinion of the majority of citizens. "What you call demography - I call national
security .
In demography, heads are counted, but I refer to the total as the national strength.
After all, it is clear that when there is no majority of Jews, the country will not be the way it is, because it is Jewish and democratic only because the majority of the citizens want it that way.
It will not be Jewish not only in the religious sense of the Jew but in the aspect of the national interests it preserves, the heritage it preserves, the history.
"I defended the state in the High Court of Conversion and in other large petitions against the Jewish-religious characteristic of the state, because among other things the anchors of our Jewish identity were questioned.
Those who grew up in the home of Holocaust survivors understand the depth of what can happen to you if you don't have a country of refuge and not a place where you can live independently as someone who exercises his right to self-determination as a Jew.
"You can be a religious Jew in other countries as well, but a Jewish color for the country, public and public, cannot exist except here. We have already gotten used to the fact that the flag has a Star of David and a menorah symbol, these are religious Jewish symbols that have become national symbols - they are here but can also disappear. That's why it It's not a matter of numerical arithmetic. Those who call it demography diminish the vision of the State of Israel as a Jewish state."
Gensin's approach earned her the nickname "the securityist".
She rejects the nickname, but admits that "my approach is different. If there is a worthy goal at the end and it is possible to give an enabling interpretation - I will bring claims from the thresher and the winery in order to realize the will of the decision maker. Terrorism must be fought with all legal tools, not with tied hands. I am not ready To comply with the court's proposal to demolish only two rooms of the terrorist's house. If there is sufficient administrative evidence, then demolish. If there is evidence of the family's involvement in terrorism, additional steps can also be examined.
"We always warn about Israel's status in the world following such actions, but the State of Israel will always do the most to avoid harming innocent citizens and will always pay the highest price in the international arena. And if you pay a price, then it's better a one-ton bomb that kills the terrorist and not half a ton that cripples him ".
opposes the ombudsman law
From 2016 until recently, Gansin served as the spokesperson for the Shin Bet.
On the eve of the Corona vaccination campaign, on a day off that she took for her birthday, the sheriff's commissioner, Asher Vakanin, called her in a panic and informed her: "Minister Ohana said he would not vaccinate prisoners before he vaccinates the entire staff.
What are we doing?!" This is the conversation that started the dance of demons.
"I have never told an elected official that his decision is illegal and a black flag flies over it, until that time. The Prison Service Law stipulates an obligation to take care of the prisoner's health, and the Corona Law states that the Ministry of Health determines the state's medical liability in an epidemic. From the moment the Ministry of Health determined that citizens of age certain or have certain background illnesses, there is a legal obligation to do so. A provision of the law, not of a jurist who assessed public interest or reasonableness tests. A provision of the legislator. Despite this, the minister remains on his side."
Gensin called the Attorney General, Avichai Mandelblit, a conversation he recounted in an interview he gave this week to the "Ovda" program.
"The spokesperson for the Ministry of Internal Security was on a temporary appointment and was hoping to be chosen for a permanent appointment, he depended on Ohana and did not back me up.
Only me and Mandelblit remained.
After a long struggle the High Court ruled against Ohana's position, but since then I have been excluded by the senior staff of the Shavas.
I was not invited to the meetings, my employees were invited in my place, I discovered all kinds of things only in retrospect.
I had no choice and had to advance my retirement by a few months."
For Gensin, this is a defining event that led her to strongly oppose Levin and Rothman's attorneys' law, according to which legal advisors will be appointed as a trusted servant. A legal opinion should reflect the existing law and not the one desired by the legal advisor. If the minister's position is not clearly illegal then the ombudsman should find a way to defend it.
I do not accept the opinion of legal difficulties, therefore there is a legal impediment.
There are definitely ombudsmen, but the order of the Attorney General is binding on the minister until a court has ruled otherwise.
"In my opinion, and this is where I come close to the reform, if the minister brought his decision to the government and it was accepted there, despite Yoams' opinion that there is one difficulty or another in the proposal of the decision, the government has the right to act and the matter is settled; let's say - the same government decision that was made will be brought to a house decision The trial. And he will decide whether it is legal or not. For example, just recently the High Court ruled against the opinion of the ombudsman in the case of the appointment of Meni Mazuz to the committee for the appointment of senior officials during an election period. But if the ombudsman determines that the decision is clearly illegal - his order is binding. .
Gensin's approach regarding the High Court's intervention in basic laws is complex, but closer to the outline of the reform. "I am against judicial intervention in basic laws, which is the sole authority of the constituent authority.
But what if the basic law violates the principles of the regimes, in the democratic framework, for example the right to choose?
There is room to intervene.
Why to this day has the Knesset not violated the basic administrative laws?
Because they are in consensus and that is what protects them, this is the civil culture.
It is forbidden to intervene when the fundamental laws will harm rights derived from the fundamental law: human dignity and freedom, for example equality which the legislator deliberately did not enact and the High Court ruled it out of respect. Legal provisions that enable the review".
When Gansin won one of the largest security petitions in the High Court, she received praise and certificates of appreciation from the Shin Bet and the IDF, government officials and the Ombudsman.
From an official at the Ministry of Justice, she received an annoyed message: "You undoubtedly did a good job for your desk."
On this she says: "It was clear to me that the politicians sent the intention and I serve them. But who are really my senders? The public. Only the public."
***
Knesset Speaker Amir Ohana said in response: "The decision to vaccinate the SBS staff before the prisoners stemmed from epidemiological logic: the prisoners are static and stay in their place, the staff goes in and out of the prisons, hence the high risk that the virus will enter the SBS domain.
"My decision was carried out in full - and I did not withdraw from it despite the advice of Ahithophel over which a black flag was raised - and thanks to it the SBS managed to overcome the epidemic with minimal damage, unlike the situation that could have happened if the advice of the SBS ombudsman and the Attorney General had been accepted.
I am very proud of this decision that saved a human life."
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