Courting debate

Agree or disagree with Friedmann, the importance of the debate over judicial reform should be clear.

friedmann mazuz 298.88 (photo credit: Ariel Jerozolimski)
friedmann mazuz 298.88
(photo credit: Ariel Jerozolimski)
There was bad blood aplenty between Supreme Court President Dorit Beinisch and Prof. Daniel Friedmann even before his appointment as justice minister. Indeed, because these antagonists squared off previously, Friedmann's very appointment was deemed a challenge to Beinisch. Yet even with such background of mutual antipathy, there was no justification for the chief justice to announce to all and sundry that she has "no time to waste" on deliberations with the justice minister. Indeed, this message was contradicted by the fact of a rare press conference held by Beinisch last week, for the expressed purpose of opposing the justice minister's proposed reforms, and suggesting that, if adopted, civil liberties in Israel would suffer. Agree or disagree with Friedmann, the importance of the debate over judicial reform should be clear. The proposals raised, regarding changes in the selection process for judges and the scope of the court's right to overturn legislation, go to the essence of the balance of power between the branches of government, and therefore to the structure of our democracy. Such a debate is long overdue. Well before Friedmann became minister, there was widespread unease with the penchant of our court for what is called judicial activism - a willingness to interpret the reach of basic laws so broadly that they grant the courts the right to overturn almost any decision by the elected branches, the executive and the legislature. It is not always appreciated how exceptional our highest court is among democratic nations in this regard. Legal scholar Robert Bork, a well-known critic of judicial activism, asserts in his 2003 book, Coercing Values: The Worldwide Rule of Judges, that "pride of place in the international judicial deformation of democratic government goes not to the US, nor to Canada, but to the State of Israel. The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court in the world has achieved." Friedmann, during his years as a venerable law professor, had attacked this state of affairs in his prolific writings. But he wasn't alone in calling for adjustments in the implementation of the principle of checks and balances, in which each of the three branches of government should possess remedies against incursions by another branch. Friedmann now proposes to enable the legislature to overrule even a Supreme Court rejection of an enacted law, by allowing the Knesset a chance to correct said law or readopt it by a special absolute majority, along the lines of the Canadian model. Moreover, Friedmann seeks to amend the method whereby Supreme Court justices are selected, as it endows the present court with veto power on nominees. Beinisch herself had barred Friedmann's associate, Tel Aviv University's Prof. Nili Cohen, from the Supreme Court, and Barak kept esteemed Prof. Ruth Gavison out because "she has an agenda." Friedmann isn't the first justice minister to urge reforms. Before him Tzipi Livni and Haim Ramon were also pursuing substantial reforms during their short terms in this post. We are not saying that Beinisch must accept every Friedmann nuance and bow to it. Indeed, there is no way yet of knowing exactly what Friedmann's bill will feature by the time it comes up for vote. Proposed legislation inevitably evolves until it is passed. Moreover, Beinisch may well have her own improvements in the system that should be considered as part of any reform process. Neither side of this debate has a monopoly of virtue, and it is certainly true that judicial reform must be mindful of the risks of harming the system. For all the criticisms of the judicial system, many of them justified, it remains the branch of government that is perhaps in the highest standing with the public. That said, what is illegitimate is to reject any attempt at reform a priori. Our justices ought to welcome constructive debate. There can be nothing healthier for our democracy than wholesome deliberation, which would, hopefully lead to amicable compromise on the long overdue overhaul.