Reform needs to be done with the utmost care, because our judicial system is a precious asset.
By JERUSALEM POST STAFFjp.services1(photo credit: )
The sparring between Justice Minister Daniel Friedmann and Supreme Court President Dorit Beinisch has reached a new low.
Last week, Friedmann proposed creating a search committee that would recommend appointments of court presidents. On Wednesday, Beinisch sent a scathing letter to Friedmann opposing the idea and accusing him of advancing "dangerous plans for reasons that have nothing to do with the good of he court."
According to Friedmann, under his proposal court presidents would be chosen as they are now: by the justice minister, with the Supreme Court president having a right to veto the minister's choice. The difference would be the establishment of a search committee that would provide the justice minister with recommendations, rather than the minister and Supreme Court president deciding such appointments by themselves. The search committee would be headed by a retired judge appointed by the minister and would include two other judges appointed by the District and Magistrates' Courts.
Friedmann's office argues that vetting court presidents through such a search committee would provide a check on the power of both the justice minister and the Supreme Court president, thereby giving lower court judges more independence. As it is now, judges must be careful not to cross their higher-ups in both the executive and judicial branches or risk their prospects for advancement. The new arrangement would not eliminate such pressures, but might make the process fairer and more transparent while preserving the balance of power between the branches over such appointments.
That said, we cannot say with certainty whether this reform proposal, like others introduced by Friedmann, is worthwhile, detrimental or of little consequence. What we can say is that Beinisch's reaction to it is entirely inappropriate in its alarmism and resort to ad hominem attacks.
"The legality of the proposed regulations is questionable since, on the face of it, they contradict the system of appointments according to law and violate the constitutional tradition according to which the judicial system has been operating for many years," Beinisch wrote. "It is clear that these proposals are another link in the series of steps you have been taking... aimed at destroying the existing structure of the judicial system and the status of the office of president of the Supreme Court.
"Do you think that it is right that the presidents will be dependent on the minister only - in other words, the executive branch of government - so that the judicial system will not operate as an authority under the professional responsibility of the president of the Supreme Court? Is this what you call independent?" she added.
Friedmann argues that the law as it stands not only permits but requires that he exercise his responsibility for such appointments. Further, under his proposal, the Supreme Court president's veto power would be maintained.
So why this constant refrain that even relatively modest structural reforms constitute the destruction of the legal system? Why attack Friedmann's motives and call him ignorant ("Your proposals show that you are not familiar with the judicial system")? Since when has what Beinisch rightly calls "tradition" become "constitutional" and its revision illegal? Why are Beinisch's allies, such as former justice Mishael Cheshin, using street language; calling on Friedmann to "go home"?
Beinisch calls Friedmann's proposals "astonishing." But if anything takes one breath away, it is the vitriol that is being heaped on the justice minister for daring to suggest reforms that serious critics of the court consider to be so modest as to have little impact.
In other democracies, such as the US, the Supreme Court has no role in choosing its own members. Justices are nominated by the executive branch and confirmed by the legislative branch. Friedmann has not proposed eliminating judges from the selection process for judges.
It is time to cut the apocalyptic rhetoric. If anything, the hysteria at the highest judicial reaches and the descent into language more familiar from the political sphere, serve to heighten public suspicions that the whole fight is a personal and political one over power, rather than a sincere argument over what is best for the country.
Reform, even when it is necessary, needs to be done with the utmost care, because Friedmann's critics are right that our judicial system is a precious asset that should not be idly tampered with. But this is no argument for shooting the messenger. A serious, reform-minded justice minister should be seen as an opportunity by the judicial branch to make necessary adjustments, not a signal to circle the wagons and fire in all directions.
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