Last update - 02:26 07/02/2007
The new justice minister / An agenda-based appointment
By Ze'ev Segal
Prime Minister Ehud Olmert presumably did not choose Professor Daniel Friedmann as the next justice minister because of his analytical legal mind and expertise in contract and torts law. Friedmann is being appointed because of his outspoken opposition to the current legal system - which has nothing to do with the field of expertise for which he received the Israel Prize.
The centerpiece of Friedmann's agenda, as outlined in newspaper articles, is weakening the Supreme Court as an activist court that subordinates the other branches of government to the rule of law. For this reason, he supports limitations on standing (the right to petition the High Court of Justice), which would prevent the court from hearing many public petitions that raise issues of the rule of law - for instance, an attorney general's decision not to indict a senior official, or the government's failure to set up a state commission of inquiry.
He also favors restricting justiciability, thereby preventing the court from ruling on public-political issues or security measures.
Similarly, he wants to reduce the court's use of "unreasonability" and "disproportionality" as grounds for overruling governmental decisions that give excessive weight to a particular goal - for instance, state security at the expense of freedom of expression - or use disproportionate means to achieve their goals, such as building the separation fence along a route that disproportionately harms Palestinian rights. Most of all, however, Friedmann wants to reduce the court's already minimal intervention in Knesset decisions that are not legislative, and eliminate its power to overturn laws, or at least restrict this power to certain specific issues.
But if the entire program would diminish the Supreme Court's status, the harshest blow of all is Friedmann's support for establishing a separate constitutional court to review Knesset legislation. Given the Israeli reality, such a court would be political, and would include politicians on its bench.
Moreover, the establishment of a special constitutional court could actually lead to the widespread annulment of legislation, which would undermine the Knesset's status. In contrast, the existing Supreme Court has exhibited great restraint in this regard, and has thus far overturned only six laws. All previous justice ministers, including Haim Ramon, have supported explicitly authorizing nine-justice panels of the Supreme Court to overturn legislation.
In his articles, Friedmann has adamantly opposed appointing the Supreme Court president and deputy president based on seniority, arguing that even someone from outside the Supreme Court could be given these jobs, subject to his "quality and suitability." The fact that the seniority system has produced chief justices such as Meir Shamgar and Aharon Barak, who might not have been appointed under his proposed system, does not disturb his agenda. His aim is to weaken the "dominant status" of the three justices on the Judicial Appointments Committee, which also includes two ministers, two MKs and two attorneys.
Despite the problematic nature of Friedmann's articles, which challenge both the court and the substantive principles it has formulated to strengthen Israeli democracy, one can take comfort in the fact that not everything is in the justice minister's hands. The court's position on judicial intervention in government decisions is deeply rooted in its rulings. Thus even if Friedmann manages to appoint justices who share his views, it is hard to see a majority of the court turning its back on all that has been developed over dozens of years of rulings. Moreover, Friedmann's proposal to reduce the number of justices on the Judicial Appointments Committee from three to one will require legislation, which is liable to encounter opposition. The same is true of revoking the court's authority to overturn laws.
One can also hope that Friedmann's analytic powers will lead him to rethink his positions, and that as justice minister, he will see things differently than he does now. If so, he might well be able to contribute to revitalizing the system.