William Mehlman

Jerusalem – Daniel Friedmann has planted his muddy, plebeian boots on Israel’s third rail-–the sanctum sanctorum otherwise known as the “High Court of Justice.” That Israel’s intrepid Minister of Justice has thus far avoided the fate of Nadav and Avihu-–the High Priest Aaron’s sons, lightning-bolted for bringing “strange fire” into the Tabernacle-–is as much a token of growing public uneasiness over the court’s relentless encroachment on the state’s legislative, executive and even military turf as it is of the thick soled constitutional insulation underlying Friedmann’s crusade against the court’s uncaged judicial activism.

Standing on this edifice, Friedmann has thrown the gauntlet at the feet of Aharon Barak, whose 11-year (1996-2006) reign over the “Supreme Court,” as it’s more commonly referred to, transformed it from a relatively moderate, occasionally useful adjudicator of disputes between Israel’s private and governmental sectors into a judicial wrecking ball. His legacy is a court that has delivered Israel’s law enforcement system as “occupied territory” into the hands of the far left, a court that former U.S. Solicitor General Robert Bork has described as “the greatest threat to Israeli democracy… the worst court in the Western world.”

Friedmann, whom Barak condescendingly refers to as “Danny,” must have known that the former Supreme Court president would break the silence on court matters he’d imposed on himself since his retirement to pick up the gauntlet. Though he has crossed swords with current Supreme Court President Dorit Beinisch, Barak’s alter ego, Friedmann knows full well that it is Barak’s ideological stranglehold on the Court he must break if he is ever to put the brakes to its runaway powers. That ideology can be summed in the single word that embodies and anchors Aharon Barak’s judicial mindset – “justiciability.”

“If you ask me, I think everything is justiciable,” Barak averred in a remarkable one-on-one with Ari Shavit of Ha’aretz. “Because the implication of non-justiciability is the breaching of the law. And who breaches the law? Not the weak, but the strong. Non-justiciability means a black hole. It means that might makes right. It means that government does what it wants…All matters relating to the West Bank are justiciable. The military affairs in the territories are justiciable. Whether to turn off the power in Gaza is justiciable. If you took land from the Palestinians, that is justiciable. If you did not protect the Palestinians, that is justiciable.”

Does the former Supreme Court president recognize any limits to justiciability? Not unless they originate with the very branch of government upon which such limits need to be imposed. “The boundaries of justiciability,” he asserts, “should be left to the judges.” Every attempt to enact legislation in this sphere is wrong. This issue cannot be legislated. Indeed, he adds, with a thrust of his justiciable rapier, “we must make it clear to the lawmakers that there are spheres in which they must avoid lawmaking.”

There are apparently no such spheres applicable to Israel’s Supreme Court. From micro-intrusion into the security decisions of the IDF high command to broad brushed interference in the most mundane mechanics of civic life, judge-made law, masked as justiciable discovery, has ridden high in Israel ever since Aharon Barak was in the saddle. Among its more notable manifestations are rulings that prevent judges from being removed by the legislature (only by other judges); that can declare “illegal” any government action deemed by the court to be “unreasonable;” that in the name of “human dignity” can compel the government to alleviate “homelessness” and “poverty;” that can countermand military orders, and that can direct the government to move security emplacements, including those established to thwart the entry of suicide bombers into Israel.

“What Barak created out of whole cloth,” observes U.S. Appellate Court judge Richard Posner, one Barak’s fiercest critics, “was a degree of judicial [law-making] power undreamed of even by our most aggressive Supreme Court justices... One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.”

Undeterred by the absence of a written constitution, the Supreme Court has discovered lurking behind Israel’s “Basic Laws” (created by the Knesset, but unrepealable by the Knesset, according to the Supreme Court), a whole galaxy of constitutional penumbras, ranging from the ludicrous (a “constitutional” right to obtain one’s pork without “inconvenience”) to the outrageous ( the “right” of Israeli Arabs to marry Palestinians and bring them into Israel). In misappropriating the authority to decide whether welfare cuts are legal, the Barak Court established a “constitutional right” to a minimum income, the amount to be determined, naturally, by the Supreme Court. As exemplified in its 2006 overruling of the IDF’s judgment on the location of portions of Israel’s “separation fence,” the Court has now extended its “constitutional” reach into Israel’s security structure. “Barak once said that the Court has jurisdiction to judge the deployment of troops,” Bork observed. “This decision brings us closer to that.”

Nothing wrought by the Supreme Court under Barak, and more recently Beinisch, has proven more dangerous than what Attorney General Menahem Mazuz has called the “lawyerization” of the Israeli Defense Forces. In testimony before the Winograd Committee investigating the conduct of the 2006 Second Lebanese War, Mazuz labeled the war the “most lawyerly” in Israel’s history, with teams of lawyers standing judgment on the “legality” of every proposed target and operation before they were carried out. The IDF’s “subservience to their legal advisers,” Jerusalem Post columnist Caroline Glick reports, “was fueled by their fear of criminal prosecution.”

The result was that “the IDF and the government wound up asking the lawyers to tell them what to do,” Mazuz and Military Advocate General Avichai Mandebilt told the Winograd panel, “because they were not prepared to take the responsibility to translate norms into decisions.” Needless to say, Glick concludes, the goal of winning the war was the last thing on the minds of these tort mavens.

Ironically, the most striking tribute to Daniel Friedmann and his battle to rescue what’s left of Israel’s self-preservative shield from the maws of its “High Court of Justice” has come not from his supporters but from his chief antagonist. “Danny will not change” Aharon Barak told his Ha’aretz interviewer. “He is an honest man, banging his head into the wall. He is a crusader who will not stop for anything… He is not the man for the job [Justice Minister].”

If honesty disqualifies you for the administration and dispensation of justice in Israel, then Friedmann may be said to be eminently disqualified. The Hebrew University/Harvard-educated law professor and Bible scholar is nothing if not fiercely-–some would say recklessly—honest in his determination to shake up an oligarchical court system that has become progressively more insulated from criticism and correction. His detailed prescription for these ills include legislative action to severely curb the Supreme Court’s virtually unfettered power to overturn laws it doesn’t like, with an accompanying measure empowering the Knesset to revise and re-validate laws overturned by the Court with a simple majority in one round of voting—as opposed to the almost insurmountable three rounds currently required to effect the same purpose.

Certain to cause even greater consternation among the protectors of the judicial temple is Friedmann’s proposed change in the composition of the committee that selects Supreme Court judges. Currently made up of three sitting judges (Friedmann would reduce it to one), two Israeli Bar Association lawyers, two ministers (including the Justice Minister) and two Knesset members, the committee has heretofore served as little more than a rubber stamp for whomever the judges decided they wanted to elevate.
This has led to what Haifa University professor Steven Plaut has described as “unelected judges dictating which other unelected judges will sit on the bench” and an ideological like-mindedness that all but forecloses any serious exchange of ideas. Lawyer and Jerusalem Post columnist Jonathan Rosenbloom calls it “the judicial equivalent to getting the trains to run on time.”

Little of the lock-step ideological uniformity that marked Barak’s tenure as president has changed under Dorit Beinisch. “The titanic struggles between rival judicial philosophies that characterize American Supreme Court history,” Rosenbloom laments, “are absent from Israel… It is rare for a decision of major impact in Israel to be decided by a narrowly divided court.”

Another missile aimed at the judicial temple is the Justice Minister’s declared intention of reinforcing the principle of “standing”—i.e., that petitioners to the Court must have a direct stake in the outcome of cases they bring—presaging a tectonic shift in the fortunes of Israel’s litigious far left. It was the Barak court’s near abolition of standing that opened the floodgates to petitions (without standing) by Peace Now, B’Tselem and their American and other “Friends,” simultaneously demanding Court action against every Jewish hilltop in Judea and Samaria and the dismissal of every claim (with standing) against Arab violations of Jewish land rights from the Galilee to the Arava. The restitution of standing may not turn off the left’s petition faucet but it should reduce it to a manageable trickle.

The howls of pain and outraged virtue Friedmann’s proposed reforms have elicited from the Court priesthood and its acolytes has been likened, with only slight exaggeration, to a tsunami, To Dorit Beinisch they constitute “a chain of actions to crush the existing structure of the justice system.” A near hysterical Barak has accused the Justice Minister of fomenting “a struggle over the country’s soul, over the independence of the court, the separation of powers, the question of who is in charge!...That man [Friedmann] will only leave ruin in his wake!”

The rhetoric of the court’s political allies has been even less temperate. “Friedmann is carrying out an assassination of the Supreme Court and its head,” bellowed voluble Labor Party MK Ophir Paz-Pines, “[resulting in] contempt of the court and damage to public confidence in the institution of justice. They contain harsh tones of populist incitement …that cause irreparable damage to the judicial system in Israel.” Paz-Pines pointedly ignored the possibility that part and parcel of the “contempt” he cited stemmed not from Friedmann’s actions but from the fact that 54 percent of the Israelis recently polled by Jerusalem-based Market Watch consider the Israeli justice system to be corrupt.

To all this, including retired Supreme Court Justice Michael Chessin’s threat to “cut off the arm of anyone who raises a hand to the Court,” the Justice Minister has responded with poker-faced politesse and scathing rebuttal. Describing the High Court as “a law unto itself, extending its power into other branches, immune from legislative oversight,” Friedmann charged that in granting it “powers and prerogatives it never had before, [Barak] wiped out our understandings and cancelled fundamental principles customary for many years.”

It was to the restitution of those principles in the face of what he called a “delegitimization of criticism in unprecedented proportions” on the part of his detractors, that Friedmann addressed himself in an illuminating interview in the mass circulation daily Yediot Aharonot. “I compare the situation today,” he asserted, “to what people said in 1977, when the Alignment [precursor to Israel’s current Labor Party] lost power and [Menahem] Begin was elected premier. They said he had stolen the country from them…Here we have a group [the Supreme Court justices and their allies] behaving like someone stole the justice system from them. The courts were theirs and someone took it from them…The Supreme Court behaves like a political party. Furthermore, it behaves like a religious party. It does things that I don’t believe any court in the West would dare do.”

“It pains me to tell you this,” Steven Plaut wrote on learning of Friedmann’s February 2007 appointment as Minister of Justice, “but Ehud Olmert has actually done something right…spectacularly correct.” Having probably read The Prince (a “must” for all in public life), the Justice Minister is doubtless aware of Machiavelli’s warning that “there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle than to initiate a new order of things; for the reformer has enemies in all who profit by the old order and only lukewarm friends in all who profit by the new.”

Daniel Friedmann is still a long way from bringing judicial tyranny in Israel to its knees, but he’s already put a sizeable chink in its armor. For that alone, guardians of Israeli democracy have much to cheer.

William Mehlman represents AFSI in Israel and is co-editor of the Jerusalem-based internet magazine ZionNet (www.zionnet.net).

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