Last update - 00:00 16/08/2007
Legal analysis / Pushing for independent courts
By Ze'ev Segal
Yesterday's joint statement by former Supreme Court presidents Aharon Barak and Meir Shamgar can serve as the basis for promoting legislation to render the courts independent, as the statement urges.
The justices enjoy personal non-dependence, and are subject only to the law in judicial matters, as laid out in the Basic Law on the Judiciary. But at the same time, the judicial system does not enjoy collective-administrative independence. The courts constitute a subsidiary division in the Justice Ministry, and the justice minister has numerous powers when it comes to temporary appointments to the bench, allocating positions and distributing them among the courts, setting up new courts, and everything to do with allocating financial resources. The judicial system is extremely dependent on the minister.
In 1996, a committee of experts headed by retired Supreme Court justice Yaakov Kedmi recommended severing the judiciary from the executive branch and granting it administrative independence.
In his 2004 book "The Judge in a Democracy," then Supreme Court president Aharon Barak suggested adopting the independent model that exists in the United States at the federal-court level. Barak shared the majority opinion on the committee.
In the American model, the executive branch - the president and attorney general - has no say in running the judicial system. Its budget is determined by Congress. Barak suggested establishing an Israeli council of judges to operate alongside the Supreme Court president and present a budget proposal to the Knesset.
Friedmann has said he is prepared to forgo many administrative powers so long as these are not concentrated in the hands of one individual, even if that person is the Supreme Court president. Friedmann believes - essentially like Barak - that the administrative powers be employed by a judges' council to include public representatives outside the judicial system, and naturally also the Supreme Court president. The council would handle the matter of job slots, appoint presidents to the magistrate and district courts, and disburse funding.
Determining the appropriate model for real administrative reform requires serious study by an expert committee to address existing problems, and consider the long-term experience of the U.S. and perhaps other countries. Implementing such reform would require amending relevant basic laws.