Last update - 00:00 10/06/2007
Slam the Supreme Court
By Ze'ev Segal
Had the justice minister, Daniel Friedmann, learned the lessons of the Bar-On affair - in which a party central-committee member was appointed attorney general by a government that concealed the planned appointment from the public - he might possibly have hesitated to introduce his proposal to change the chosen manner of appointing the attorney general.
As a result of that affair, in 2000 the government adopted the recommendation of a public committee headed by the retired president of the Supreme Court, Meir Shamgar, that the committee that recommends candidates to the government be headed by a retired Supreme Court justice, to be appointed by its president. This would presumably bolster public trust in the office holder, which is "a fundamental requisite for his ability to do his job."
Along comes Friedmann and proposes that the Olmert government change the rules of the game, so the committee would no longer be headed by a justice, but rather by a former attorney general or justice minister, to be appointed by Friedman himself, and who might well be a political figure. The retired judge who would serve on the committee would be chosen by the justice minister instead of the Supreme Court president, and would not necessarily be retired from the Supreme Court.
In this manner, Friedmann seeks to have it both ways: to increase the politicization of choosing an attorney general and to increase the government's control over the process, contrary to the recommendations of the Shamgar Committee and to the decision of the previous government, which sacrificed over-involvement in the process leading to the selection of the attorney general, which is ultimately its prerogative.
The public trust gained by placing a retired Supreme Court justice at the head of the committee is of no significance to the honorable minister. Squashing the power of the Supreme Court is what counts, while taking the name of the "separation of powers" principle in vain.
Friedmann's agenda against the Supreme Court reaches its climax in his demand that the judge serving on the committee no longer needs to be a retired Supreme Court justice. This despite the fact that the attorney general is supposed to be suitable for serving on the Supreme Court bench.
Friedmann claims that Haaretz is waging an immaterial campaign against him (according to an article published in Ma'ariv on Friday), but does not present compelling counter-arguments to the criticism of his proposals, which are essentially designed to undermine the Supreme Court, an institution that still enjoys much greater public trust than politicians. He introduces his suggestions one after another and in a frenetic manner that reflects, apparently, a desire to "catch as catch can" so long as Friedmann has his post.
A "slam the Supreme Court" spirit characterizes his proposal for beefing up the political element in the makeup of the committee for selecting Supreme Court justices, as well as the proposal for reducing the number of Supreme Court justices on the committee. The same holds true for his proposal to grant the Knesset the power to validate legislation thrown out by the High Court of Justice for violating basic rights, with only an ordinary coalition majority of 61 MKs. And this spirit also permeates his proposals to restrict the High Court of Justice's judicial oversight on security matters, which until now prevented a certain disproportionate infringement of civil rights.
Friedmann's fight against the Supreme Court was the subject of an article in Britain's The Times (June 5) by David Pannick, QC, entitled "Hands off, that behavior is not acceptable." Pannick, a well-known British barrister and a Times columnist, visited Israel with a group of judges headed by the Baroness Brenda Hale, a member of the Law Lords. The group was the guest of the Supreme Court.
Pannick discusses the respected and distinguished standing the Israeli Supreme Court holds among jurists around the world, and notes that Friedmann is the first justice minister in Israel to have "seen it as his role to lead an attack on the judiciary, rather than calm down his ministerial colleagues and explain to them the virtues of judicial independence as the protection they and their supporters will enjoy when they are out of office."
Today is the moment of truth for the government and the man at its head, if it does not wish to take part in the war on the Supreme Court. The prime minister and his ministers must calm down the justice minister and direct him not to set out for endless battles without due consideration. The government should remove Friedmann's proposal from its agenda and not merely postpone discussion of it, thereby showing there is more to the proposal than a superfluous battering of the Supreme Court.
Former justice ministers Tzipi Livni and Meir Sheetrit, who serve in the current government in other posts, did not refrain in the past from countering positions taken by the president of the Supreme Court, Aharon Barak, but did not fight and did not dream of shattering the framework as a whole. It is unfortunate that a learned jurist like Friedmann has to receive from them and the government an urgent lesson in constitutional democracy, at the center of which stands the Supreme Court as the protector of civil rights.