A justice minister with a passion for criticism

The decision to appoint Friedmann does not guarantee harmonious relations between the government and the courts.

By DAN IZENBERG
February 6, 2007 23:36
A justice minister with a passion for criticism

Daniel Friedmann 248.88. (photo credit: Courtesy)

 
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The decision to appoint Tel Aviv University Prof. Daniel Friedmann as the new minister of justice does not guarantee harmonious relations between the government and the courts or the government and the country's law enforcement agencies, including the police and the state prosecution. His views on judicial activism, on the right of the Supreme Court to nullify Knesset legislation, and on the system of appointing judges, including the president of the Supreme Court, indeed his outspoken views on the current president of the Supreme Court, are diametrically opposite to those of the court. His criticism of the police, the state prosecution and the court in the Haim Ramon affair echoes that of President Moshe Katsav, though not motivated by any personal interest. Friedmann is considered one of the most brilliant legal minds in the country. He is 71 years old and is a seventh generation sabra on his mother's side. He is married and the father of three. Friedmann studied law at Hebrew University under Professor Gad Tadeski, together with future Supreme Court Justices Aharon Barak, Mishael Cheshin, Yitzhak Zamir and Yitzhak Engelard. He moved to the University of Tel Aviv in the 1960s and served as dean of the faculty between 1974 and 1978. Friedmann specialized in civil law, specifically in contract and insurance law. In 1983, he won the Zeltner Prize for excellence in the law. Eight years later, he won the Israel Prize. He is only one of four jurists who belong to the Israel Academy of Sciences. In the 1990s, after a law was passed establishing law colleges outside the university framework, he helped establish the law school in the academic division of the College of Management and served as its first dean from 1991 to 1997. Friedmann's political views are not publicly known. He joined Dash, the forerunner of the Shinui Party, but left it after the 1977 elections. He was also a member of the Beiski Commission of Inquiry into the role of the banks in the stock market collapse of 1983. Friedmann became a public figure during the Supreme Court battle over the candidacy of his close friend and colleague, Prof. Nili Cohen in 2003. Supreme Court President Aharon Barak recommended appointing Cohen to the Supreme Court, but was defeated in a bitter fight instigated by Justice Dorit Beinisch, who conducted an intense campaign against the nomination. Friedmann was infuriated at the rejection of a person he thought eminently qualified to serve on the court. He maintained that Cohen's rejection marked the beginning of the court's decline. "It appears that the justices are not immune to the possibility of misusing power, as the developments in the process of appointing judges has proven," he wrote in an article published in Yediot Aharonot on April 21, 2006. "The affair of Prof. Nili Cohen's appointment received much publicity. She is a legal expert of the first rank. The high quality of her candidacy could only be offset by a campaign of baseless libel. It was not beneath the Supreme Court to wage such a campaign, even when it meant violating the basic rules of fairness which the court demands of others." Friedmann's comments on the Cohen affair were included in an article he wrote after Haim Ramon was appointed minister of justice. Ironically, the article was entitled, "An agenda for the new justice minister." Now, it appears, this article will become Friedmann's agenda. Friedmann wrote that the justice minister faced several key problems. The first was the crisis in the Supreme Court, where only 10 of the 15 positions are filled. He blamed the crisis on the court itself for blocking worthy candidates such as Cohen and Hebrew University professor Ruth Gavison. The second problem, he wrote, was the system of appointing the president and deputy president of the Supreme Court. Instead of choosing the most qualified among the justices, it chooses the ones with the most seniority. He specifically charged that Beinisch, the most veteran of the justices, was unworthy of the position. The third problem was the composition of the Judicial Selection Committee, which is made up of three Supreme Court justices, two ministers including the minister of justice, two MKs and two members of the Israel Bar. Since the Supreme Court justices have proved that they are "no different from the politicians," wrote Friedmann, they should not be allowed to have such strong representation on the committee. He suggested that two of the three judges come from the district courts. The fourth problem, according to Friedmann, was that the courts had too much power. The most serious problem was that the High Court of Justice has granted the right of standing to everyone and believes, in Barak's words, that "everything is justiciable." He also criticized the court for introducing legal "tests," such as "lack of reasonability" and "unproportionality" gave the court much greater power to overturn government decisions. The sixth problem was the fact that the court has turned itself into a constitutional court with the right to reject Knesset legislation. Friedmann said these powers must be curtailed by law to prevent the court from dealing with certain issues or from nullifying laws. The seventh issue was the question of the reform of the court system. He opposed Barak's plan to divest the Supreme Court of its role as a court of first appeal and as a High Court of Justice on most issues, thus leaving it to deal only with constitutional questions. Friedmann recommended establishing a constitutional court and dividing the Supreme Court into separate departments specializing in criminal and civil matters and High Court petitions. In the Ramon case, Friedmann went beyond the courts to include the police and the state prosecution in his criticism. In an article published last weekend, Friedmann said, "Haim Ramon erred by doing something that was unworthy but this did not justify trying him on criminal charges. The attorney-general and the state attorney erred in indicting him without sufficient grounds." He hinted that there might have been a conspiracy by the police and the prosecution to topple Ramon. "It is possible that had it been someone else, [they] would not have filed an indictment on the basis of such flimsy evidence," he wrote. He also called for an investigation into why the police had asked for permission to wiretap Ramon and why the head of the Tel Aviv District Court had granted the request.

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