Daniel Friedmann 248.88.
(photo credit: Courtesy)
The Justice Ministry is preparing legislation aimed at restricting the powers of the High Court of Justice, but will not try to have it approved by the Knesset before holding a public debate on the matter, the justice minister's communications adviser, Tzahi Moshe, told The Jerusalem Post on Thursday.
The news of Justice Minister Daniel Friedmann's intentions came to light during a conference at the Van Leer Institute on Wednesday on the relations between the government and the Supreme Court. Tel Aviv University Professor and Ha'aretz legal commentator Ze'ev Segal informed the audience of Friedmann's plans during a discussion on the "activism" of the Supreme Court over the past two-and-a-half decades.
"Activism" includes, among other things, the court's readiness during these years to allow almost anyone to petition it on government actions, even when these actions do not directly affect the petitioner himself - an issue known as "standing."
The policy introduced by former Supreme Court presidents Meir Shamgar and Aharon Barak has opened the court to many non-government organizations such as the Association for Civil Rights in Israel, the Movement for Quality Government, and Adalah, the Legal Center for Arab Minority Rights in Israel, petitioning on such matters as human rights, minority rights and ethical government behavior.
The other key element in judicial activism is the degree to which the court is prepared to intervene in the decisions and activities of the executive and legislative branches of government - in legal terms, the question of what issues are "justiciable."
Following the Knesset approval in 1992 of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation, the High Court began to review regular Knesset legislation to see if it was consistent with the basic laws. In the past 15 years, it has rejected all or parts of six laws passed by the Knesset.
The court has also gone further than before in intervening in executive and legislative decisions. For example, it ordered the army to change the route of separation barrier sections on the grounds that it caused disproportionate harm to Palestinians. It also ordered the state to fully fortify all the schools in Sderot and the Gaza periphery communities, after the state had decided on a less expensive, but also less effective, system.
Friedmann has been critical of these and many other decisions by the Supreme Court. In an interview last week, he said, "Perhaps there are some people who don't care that the High Court has taken on as many powers as it can and is intervening in everything, because they trust the justices more than they do the politicians. But I say there is a problem when a body that is not elected democratically, like the High Court, intervenes in areas which should be decided by a democratically-elected body."
Friedmann is not the only critic of the activist court. Other outspoken critics include Hebrew University law professors Ruth Gavison and Shimon Shetreet and Likud MKs Reuven Rivlin and Michael Eitan. They argue that the court has assumed powers not granted it by law and that its rulings are based on the subjective opinions of the justices rather than which is written in the text of the law.
Current law is very vague about the powers of the High Court. According to sub-section 15 (c) of the Basic Law: the Judiciary, "The Supreme Court shall also sit as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court." The next section of the law lists specific powers, but does so "without prejudice to the generality of the provisions of subsection (c)."
Until the 1980s, the court took care not to intervene in government and Knesset decisions and activities, except in rare circumstances, and was strict about who could petition the High Court. Since the 1980s, the court has become far more activist, arousing the anger not only of certain sections of the population - the haredim and the pro-settlement factions, among others - but the executive and legislative branches, as well.
Friedmann hopes to rein in the High Court by passing a law which will remove the vagueness of the basic law and clearly specify which matters are within the court's jurisdiction. According to Moshe, the ministry has not yet drafted a memorandum, the first step in preparing legislation for approval by the Knesset. However, given Friedmann's views on the matter and Moshe's statement, it likely won't be long. What is less certain is what impact, if any, the public debate that Friedmann has promised will have on his determination to legislate the law.