Contentious justice

The new justice minister opposes a politically activist Supreme Court.

February 7, 2007 19:42
3 minute read.
Contentious justice

Daniel Friedmann 248.88. (photo credit: Courtesy)


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The appointment of Prof. Daniel Friedman as justice minister will trigger an internal clash in the legal system, between its top two chieftains and their very different worldviews. It is no secret that little love is lost between Friedman and Supreme Court President Dorit Beinisch. The reason behind the discord between them lies in Beinisch's vehement opposition to the appointment of Nili Cohen, a close associate of Friedman to the Supreme Court. At the time, Friedman waged an aggressive campaign in favor of her appointment to the court (for the sake of disclosure, I must note that in my capacity as justice minister, he discussed this matter with me too). Friedman voiced criticism almost unprecedented in its stridency against all those who stood in Cohen's path to the Supreme Court. This campaign, which culminated in Beinisch's victory, left bad blood between her and Friedman that will certainly cast a shadow on the working relationship between the justice minister and the president of the Supreme Court, even if both swear to ignore the past. PROF. DANNY Friedman, an Israel Prize laureate in jurisprudence, is internationally renowned in the field of civil law, particularly contract law. But it may be assumed that it was not only his expertise that prompted his appointment, but also the stand he has taken against the judicial activism espoused by the previous Supreme Court president, Aharon Barak. Friedman especially takes issue with the intervention of the High Court of Justice in matters of a political nature, which are the responsibility of the Knesset and government. In Friedman's view, not everything is justiciable and the High Court of Justice should not rule on matters related to the running of the country, except in extreme cases in which the government fundamentally oversteps its authority. Like quite a few jurists (and politicians), Friedman takes exception to the over-legalization of the state, and this applies to the State Attorney's Office too. In this context, for example, he slammed the decision by the state to indict Haim Ramon. Friedman went as far as to warn lest a "dictatorship" of the legal system pose a threat to the Israeli democracy. Friedman proposed a reform in the selection process of judges in order to cut back on the influence that Supreme Court justices wield over the choice of their colleagues. Some attribute this position to Friedman's resentment at the decision not to appoint Prof. Nili Cohen to the Supreme Court. Many other jurists, however, share his approach. (Based on my own experience as justice minister, I would leave the selection of judges to jurists alone - judges, attorneys and academics - without any participation by politicians). I have been accused more than once (for example, in Nomi Levitsky's book, The Supremes: Inside the Supreme Court) of being far too willing to accommodate Supreme Court president Aharon Barak. I did so because I believed, and I still do, that the legal system is under siege - assailed by politicians who seek to clip its wings in order to allow themselves unconstrained freedom of action. The judiciary is the last stronghold of the political system that is not tainted by corruption or political destructiveness. Four people control the reins of justice: the president of the Supreme Court, the minister of justice, the attorney-general and the state attorney. These four must work together in harmony to prevent any cracks in or erosion of the superiority of the law. However, when the justice minister and the president of the Supreme Court have difficulty cooperating on a personal level, and when they represent worldviews that are diametrically opposed on the professional level, the tension that is created contributes nothing to the doing of justice. The writers is a former MK.

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