Justice: Fighting for judicial review - and against the clock

Justice Minister Daniel Friedmann had high hopes to shake up the legal system, but he has now been forced to focus his legal battle on a landmark bill to restrict the High Court of Justice's powers in reviewing parliamentary legislation.

By DAN IZENBERG
September 4, 2008 22:34
4 minute read.
Justice: Fighting for judicial review - and against the clock

friedmann 224.88 AJ. (photo credit: Ariel Jerozolimski [file])

 
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Time is running out for Justice Minister Daniel Friedmann. His well-planned agenda for weakening the alleged obstacles standing in the way of those elected to govern - the executive and legislative branches - has been stalled for many months. Within two weeks, the government in which he enjoyed the unstinting support of the prime minister and the vice premier will have resigned. His own political future is hazy at best. Friedmann has many initiatives still in the pipeline. Some of the more well-known (or notorious, depending on how you look at it) include the following: na bill to formalize and restrict the power of the Supreme Court to nullify Knesset legislation which violates basic laws; na bill to appoint a five-person committee headed by a retired judge appointed by the minister of justice to choose the presidents of the magistrate's and district courts. According to the current law, presidents are chosen by the minister of justice with the consent of the president of the Supreme Court; na bill to change the composition of the Judges' Selection Committee to enhance the power of the political echelon and weaken the power of the Supreme Court. Friedmann may have decided to drop this initiative after the Knesset overwhelmingly passed a private member's bill achieving most of his goal; nan initiative (wielded by Friedmann as a sword of Damocles over the High Court but not turned into a bill) to prohibit the court from hearing petitions involving security or citizenship matters; and n a bill to split the attorney-general's responsibilities as chief prosecutor and legal adviser to the government into two positions and to restrict the legal adviser to offering legal opinions which the government may take or leave. In the 20 months he has served, Friedmann has succeeded in passing only one bill having affecting the fundamental operations of the judicial system. According to that bill, the presidents and deputy presidents of all the courts, including the Supreme Court, will be restricted in the number of years they may serve. Friedmann's agenda was largely frustrated by the Labor Party. According to the coalition agreement with Kadima, each coalition partner had the right to veto legislation that affected the existing constitutional structure. Prime Minister Ehud Olmert knew his government would fall if Labor resigned over this issue. As much as he might have sympathized with Friedmann's aims, he did not dare back him politically. Now, in the twilight of the Olmert government, Friedmann may perceive an opportunity to legislate the flagship of his agenda, the bill to restrict the powers of judicial review of Knesset legislation by the High Court of Justice. The bill is scheduled for consideration by the cabinet at Sunday's regular session. Friedmann's thinking is likely as follows: Within about two weeks, Olmert will resign and take down the government with him. From that moment, until a new government is formed (whether by the current Knesset or, after elections, by a newly elected Knesset), the members of the coalition will be locked into a transitional government from which they cannot resign. The transitional government itself cannot fall even if the prime minister ignores the coalition agreement and agrees to present Friedmann's bill to the Knesset. As long as he has a Knesset majority, even without Labor, the bill will pass and the government will remain intact. Since it will take several weeks, if not several months, for a new government to be installed, Friedmann might have enough time to shepherd the bill through the three required readings. There is a question as to whether a lame-duck government should be able to promote a bill of such far-reaching constitutional consequences. On Wednesday, in response to queries by right-wing and pro-Golan Heights opponents of the government, Attorney-General Menahem Mazuz quoted a High Court ruling stating that such a transitional government must "apply its governmental authorities with great restraint... In this period, the government is obliged to use restraint in applying its powers regarding all matters which are not especially urgent." Will these guidelines render it illegal for the government to push Friedmann's bill forward? There is a great deal of irony involved in the answer to this question. If it is a valid question, the government will have to ask Mazuz for the answer. And if Mazuz says no, the government will be obliged to obey. This is precisely the situation which Friedmann wants to change in his other flagship initiative, the bill formally known as "the legal adviser to the government and the attorney-general (separation of powers, appointment, term of office and other provisions) law," which Friedmann introduced on July 24. One of the key elements in the bill is that the government will no longer be "enslaved" to the dictates of the attorney-general as to what it can or can't do. The bill states that the attorney-general will express his legal opinion on issues referred to him by the government, but that the opinion is not a binding ruling. So, here is a situation in which to pass a bill that is so vital to Friedmann, he may have to ask Mazuz's "permission," a state of affairs which is anathema to him and which he badly wants to change. But that is not the only irony. Should the government ask for Mazuz's opinion and Mazuz give the green light, it is a foregone conclusion that either the bill itself, or the fact that a lame-duck government has proposed it, will be challenged in, of all places, the High Court. Thus, the High Court may be asked to rule on the legality of a law curtailing its own prerogatives. Wouldn't that be the mother of all conflicts of interest? It is not clear that this scenario is the one that will unfold. But it will be interesting if it does.

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