Barak, Friedmann at war in Hebrew press

Barak drops his gloves in articles, interviews published in 3 main Hebrew newspapers this week.

aharon barak 224.88 (photo credit: Courtesy)
aharon barak 224.88
(photo credit: Courtesy)
Former Supreme Court president Aharon Barak has called on Prime Minister Ehud Olmert to fire Justice Minister Daniel Friedmann, whom he has accused of threatening to destroy Israeli democracy. Barak, who has spoken publicly against Friedmann's policies over the past few months, dropped his gloves and came out swinging in personal articles and interviews published this week in the country's three main Hebrew newspapers. Friedmann replied to Barak's allegations in a separate article in Yediot Aharonot on Thursday. Barak's lengthy Ha'aretz interview was due to appear on Friday, but copies were distributed a day earlier to subscribers. "Danny Friedmann will not change," Barak said in the Ha'aretz interview. "He is an upright and stubborn person. He is a crusader who will not stop. Therefore, the prime minister, the cabinet and the opposition have an historic responsibility. The prime minister, who plucked the professor from academia, brought him back from retirement and appointed him minister of justice is just as responsible for Friedmann's actions as Friedmann is. In a sense, he is even more responsible, because Friedmann was at least consistent. He didn't do anything unexpected. On the other hand, there are two possibilities regarding the prime minister. If he knew what Friedmann would do, he is equally responsible. If he did not, he bears responsibility for not knowing." Barak was asked why he had decided to speak out in such a sweeping way at this time. "I've always believed that when a person finishes a job, he finishes the job," he replied. "The curtain goes down. People do not always know when to stop, and I thought one [person] should stop, disappear, say good-bye. My decision to speak out now is because the crisis is so great. I can't take it any more." According to Barak, Friedmann threatens three principles of the judicial process: the independence of the judiciary, the system of choosing judges, and the authority of the court. Barak charged that instead of protecting the judiciary from the pressures of politicians and others, Friedmann had decided to run the system himself. "He is trying to eliminate the president of the Supreme Court as the guardian of the judicial system from within," Barak charged. By doing so, Barak said, he was making judges dependent on him instead of the Supreme Court president for advancement. "There is already a feeling that the court presidents whom Friedmann likes are rewarded, while the others are not," Barak continued. "Judges know that if they support [Supreme Court President Dorit Beinisch], they might suffer consequences. This is an inconceivable situation." Barak charged that Friedmann's legislative proposal to restrict judicial review of regular laws "significantly diminishes" the High Court's ability to protect human rights. According to the justice minister's bill, if the High Court rejects a Knesset law, the law will be suspended for six months. In that time, however, the Knesset may vote, by a majority of at least 61 MKs, to enact the law for five years without further court intervention during that period. Barak described Friedmann's policies as a "tsunami" that would destroy the judicial system if he were not stopped. Asked what damage Friedmann would cause, Barak replied, "Membership in the judicial authority will be more political, and its authority in the areas of human rights and the fight against corruption will be much more restricted. The judicial authority will be diluted and weakened, prone to strong political influence, its judges chosen not according to talent but [according to] political connections. It will be largely shorn of its ability to protect the rights of the individual, minorities and the ethics of government. It will be a castrated court, a midget court." Barak said the innovations Friedmann had already introduced had to be canceled. "That man will only leave ruin in his wake," he said. He also accused the justice minister of being an "enemy" of the judicial system. Friedmann's response to Barak's allegations was even more personal. "Barak," he wrote in Yediot, "granted the Supreme Court powers and prerogatives that it had never had before. He wiped out understandings and canceled fundamental principles that had been customary for many years." He charged that Barak believed that every basic law, even those that did not include the requirement of a special majority to change them, and even if they had been passed in the Knesset by a small number of MKs, could serve as a basis for rejecting, in his words, a "regular" law. (In putting the word "regular" in quotation marks, Friedmann was challenging the distinction made by Barak between regular and basic laws.) Friedmann also maintained that according to the judges' code of ethics, even retired judges were not supposed to speak out on issues that were not primarily judicial and were matters of public controversy. He accused Barak of having broken that code while he was an active justice, and of breaking it again now. He also took issue with Barak's claim that until Friedmann came along, relations between Supreme Court presidents and justice ministers had always been statesmanlike and that disagreements over professional matters had remained between the two office-holders. He recalled the dispute between Barak and then-justice minister Tzipi Livni over the appointment of Ruth Gavison to the Supreme Court, and the disagreements between Barak and former justice minister Yossi Beilin, among others. He also recalled Barak's battle against the proposal to create a politically appointed constitutional court, in which Barak had said, "We have to kill this insect while it is still young." "This is the kind of attack that every proposal, as legitimate as it might be, receives when the president of the Supreme Court doesn't like it," said Friedmann. "I, for one, do not remember public intervention and such a crass tone on the part of Supreme Court presidents regarding legislative proposals before the Barak period." He also described the retired judges who opposed his proposals as "a chorus of yes-men." Friedmann said that Barak had accused him of not defending the High Court, but he "could not extricate the Supreme Court from the political disputes which it it got itself into when it declared that everything was justiciable. Furthermore, when retired justices or friends of the court lobby the Knesset and appear day and night in the media, there is no way of keeping the judicial system out of the maelstrom, nor is there any reason to defend or justify such behavior." He also defended his decision to break the relationship of dependency between the lower court judges and the Supreme Court president. "In my view, the independence of the judges is not just independence from the outside world, but also independence within the judicial system," he said. "It is not healthy when the judges are completely dependent on one person, now matter how high his office.