Who's afraid of judicial reform?

Friedmann's arguments cannot be dismissed with the contention that the court is inviolable and that any criticism of it is heretic.

By
November 17, 2007 19:56
3 minute read.
Who's afraid of judicial reform?

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

 
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The struggle between the Supreme Court and Justice Minister Daniel Friedmann seems to have entered a new phase. Not only do we hear Chief Justice Dorit Beinisch lash out against the minister, but her predecessor as chief justice, Aharon Barak, has been lobbying against Friedmann in the Knesset, seeking out leading MKs and attempting to drum up a parliamentary majority to foil him. He has also been helped by other former justices, like Yitzhak Zamir. This direct confrontational action may be unparalleled in the democratic world and unprecedented in this country, despite our Supreme Court's reputation for judiciary activism. There is no disputing that our Supreme Court's reach is nearly unrivaled. Access to the highest court is open to anyone and any organization - even without specific standing in a particular case - thereby all but inviting the court to intrude on all legislative and urgent executive functions. Neither law nor tradition limits its jurisdiction to actual cases that have been litigated in lower courts and are appealed on grounds of very specified legal irregularities, as is the case, for instance, in as venerable a court as the US Supreme Court. Our court, in brief, ascribes to itself almost divine rights with no restrictions regarding where it may impress its opinion. As Barak himself put it: "Everything is judicable." This threat to democratic checks and balances (in democracy's name) is further exacerbated by the fact that the Supreme Court possesses matchless veto powers over whom to co-opt to its ranks. Thus Barak barred the appointment of such eminent jurists as Prof. Nili Cohen and Prof. Ruth Gavison to the Supreme Court. He disqualified the latter with the sweeping comment that "she has an agenda." True, Gavison opposes judicial interventionism, but is the current justices' activist outlook not an agenda too? Doesn't the Israeli public deserve a less homogeneous court? Past justices with agendas different from Barak's and Beinisch's - like Moshe Landau and Menachem Eilon - would have never been admitted to the supreme bench under the strictures Barak imposed. Friedmann doubtlessly unsettles the court that Barak fashioned and that Beinisch preserves. Friedmann's provoking rhetoric and numerous reported reform initiatives - none of which has yet been enacted - menace the status quo safeguarded by the current justices. Friedmann had challenged the method whereby the court essentially replicates itself instead of admitting justices with divergent philosophies. He attacked the near-universal right to seek court intervention without any legal standing in a given case. He wants to follow the Canadian example of reenacting laws disallowed by the courts. He is now out to curtail the court's ability to strike down legislation. According to some sources he intends to narrow the court's capacity to obstruct government moves in the spheres of defense, foreign policy and budgetary allocations. Whatever one thinks of any particular proposal by Friedmann, his arguments cannot be dismissed with the contention that the court is inviolable and that any criticism of it is heretic. Friedmann may feel that he hasn't much time to effect change and his style may indeed be too blunt, but that makes his positions no less legitimate. In a democratic system, proposals such as Friedmann's deserve serious debate. This includes reasoned opposition by those who believe that they would have an adverse effect on our judicial system. We would hope the result of such reasoned debate would be some adjustment in the way our branches of government interact, and that this change would strengthen the legislature, judiciary, and public confidence in both. The court should not regard change as automatically threatening. It should recognize that widespread perceptions that it is overreaching and insufficiently representative are not healthy and, ironically, can actually reduce its influence. While the court may see Friedmann as a dangerous adversary, he may be saving the judicial branch from less informed and more drastic legislative initiatives down the road.

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