Saving the High Court from itself - Haaretz

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Thu., August 23, 2007 Elul 9, 5767

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Saving the High Court from itself

By Orit Shohat and Ze'ev Segal

Professor Daniel Friedmann, you are the first justice minister to have taken up his position so fed up with the judicial system. Your criticisms are well-known, because they have been published over the years in the press. Why, in your opinion, did the prime minister choose you rather than anyone else?

Friedmann: "You have to ask [Prime Minister] Ehud Olmert that."

How did it come about? Were you sitting quietly at home in Tel Aviv and then out of the blue the phone rang?

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"More or less. I believe that Professor Amnon Rubinstein refused, and then they contacted me."

A few days before you were appointed, you wrote in an article about the trial of Haim Ramon [then justice minister, now minister without portfolio] that the State Prosecutor's Office marks out politicians that it wants to get rid of and pins raps on them. Is that what you think of the State Prosecutor's Office?

"That's not exactly what I wrote."

The exact words are as follows: "The prosecution can find some sort of blemish in almost any public figure it chooses, which it can define as a criminal offense ... Cabinet and Knesset members are in fact subordinate to the attorney general ... They realize that he can file an indictment against any public figure and thereby bring about his liquidation." That's not pinning raps on people?

"I'm talking about the prosecution's excessive zeal. What is excessive zeal? I'll give you the example of Aharon Abuhatzeira. He was a cabinet minister and he was acquitted. The day after he was acquitted, another indictment was filed against him, on the same type of charge, or a similar one, and this time he was convicted. This isn't 'pinning a rap' in the sense that they invented things against him, but the prosecution became ambitious and said that it had to obtain a conviction to protect itself, to protect its status."

And why did they choose Abuhatzeira specifically?

"This has happened in other cases. For example, in the Aryeh Deri affair. After years of legal proceedings against him, when he was already in a terrible state - when at long last it was over, after he had been convicted and his career had been ruined - all of a sudden they filed another indictment against him. And I ask, why was that necessary? What did that serve?"

What, in fact, are you saying? Do you agree with Ya'akov Ne'eman and Haim Ramon that the State Prosecutor's Office targeted them for assassination and sought to get rid of them via criminal cases?

"No, no. Things are a bit more complicated. Especially in vague offenses that are borderline. I don't want to offer explanations, but what happened, for example, in the case of [Likud MK] Reuven Rivlin, who was supposed to be appointed minister of justice, was unreasonable. A few days before he was appointed, they announced that there was an investigation underway against him. By the time they closed the case, years had passed. The basis for this investigation was extremely thin. Really extremely thin."

Where do you think the conspiracy is formulated? Do police and prosecutors sit together and decide to prosecute someone for something trivial in order to get rid of him?

"I'm not talking about bribery cases, about clear-cut cases where there is real evidence. I'm talking about borderline offenses. Say they give a public figure an upgrade at a hotel - they give him a suite. Or in the course of a flight abroad, they move him from economy class to business class. When we are in the gray area, then the question of what will happen arises. When the prosecution has such broad discretion, even if the prosecutor is acting in complete good faith, and especially when he is influenced by his own approach to a public figure - let's call him the suspect for the moment - then they deal with him in a different way. If it is someone who belongs to a certain category, they deal with him in a certain way, and if he belongs to a different category, then they deal with his case differently. This is a very unhealthy situation."

Excessive zeal

You can say that there is excessive zeal to prosecute, that public figures are indicted for offenses for which you would not indict. But to say that this is true only for people the prosecution doesn't like?

"I don't know. I don't know. It's clear that in rightist circles, there is a feeling that the attitude toward them is stricter."

Make a statistical check and you will see that you are mistaken. Haaretz checked cases against public figures over the years, and there is no basis to this.

"When there is a clear offense, there is no discrimination of this sort. When there is evidence of a serious and defined offense like bribery, it makes no difference either way. The problem exists in vague situations. [Strategic Affairs Minister] Avigdor Lieberman claims, with a fair amount of justice, that the investigation against him has been going on for too long. It's been seven or eight years. I think that it is necessary to limit the length of an investigation by law. At the Justice Ministry, they tell me that I am not taking the overburdened professionals into consideration, that there isn't enough manpower to complete an investigation quickly. But in Reuven Rivlin's case, this argument isn't at all convincing. I want to reach an agreement with the [ministry's] professionals on a cap on how long an investigation can take. In the end, this will be forced on them by the Knesset, but I am trying to act with maximum caution. In other words, I don't want us to find ourselves in a situation where it is precisely the serious offenses from which people come out clean, because the investigation has run out of time."

What should the time limit on investigations be? One month? Two? Then they will end up only indicting people like Naomi Blumenthal, because there it's easy to wrap up the case quickly.

"But it is also impossible to accept the current situation. The limit should be linked to the severity of the offense, for example. If it is a very serious offense, it can be investigated for a long time. If new evidence is suddenly discovered, it is possible to justify extending the period of investigation."

Who should oversee the State Prosecutor's Office? Today, there is judicial oversight of the attorney general's decisions, but you object to this as well.

"I object to oversight that is only in one direction. That is precisely the problem. If the attorney general decides to file an indictment, there is no oversight and no one complains about him, even if the indictment should never have been filed in the first place. [For that,] there is no oversight or judicial review."

That is articulated in the verdict.

"Then it's too late. In the meantime, years have gone by. I am saying that there is pressure on the prosecutor to indict, even in borderline cases, even in problematic cases. When he is considering whether or not to file an indictment, he knows that if he does, there will be no criticism of him, but if he doesn't, then maybe the High Court of Justice will intervene."

The High Court hardly ever intervenes in this direction. Do you want to give the attorney general total freedom to decide, without any High Court review of his decisions? Just a moment ago, you said that you wanted to rein in the prosecution's power.

"If there were a two-way review of his decisions - both when he decides to prosecute and when he decides not to - I would understand. But one-dimensional oversight increases the tendency to prosecute. I want a public committee to study the issue thoroughly and recommend a way to review the prosecution's decisions at an early stage."

Now that you are justice minister and have been closely involved with the State Prosecutor's Office, do you still think that they pin raps on people?

"I reiterate that I don't think that there's a conspiracy. I don't think that a group of people sits around and says 'let's start looking for something on somebody.' But in a borderline situation, sometimes sub-borderline, when an investigator or a prosecutor has discretion, I think that personal inclinations and worldviews influence the decisions."

Is that what happened to Haim Ramon?

"I find it hard to believe that anyone except Ramon would have been tried for what happened - not to mention all the effort that was invested in the case. I don't believe they would have invested so much effort in the case had it involved somebody else."

Why Ramon in particular?

"First of all, there is a certain tendency to put ministers on trial because this gives more exposure, it affords all kinds of advantages. But I am not altogether certain that had it been some other minister, the whole thing would have been handled in the same way. The Ramon case was not just borderline, it was sub-borderline; it could only be nudged into the gray area with difficulty. I'm not certain that the investigator's views didn't have an effect.

So what are you intending to do in order to prevent the grave situation that you describe?

"I want to be very cautious on this issue. A public committee has to be set up. It is necessary to think. A committee headed by [former Supreme Court president Meir] Shamgar, a person for whom I have great respect, decided in its day that the attorney general's status should remain as it is, even though many experts said that it was necessary to split the attorney general's role in two. I say that there is a conflict of interests, since he is both the government's legal advisor and also head of the prosecution. I am in favor of reexamining the issue."

Take political appointments

You think that there are too many investigations of public figures. In effect, you are saying that it isn't that the country is so corrupt, but rather that there are too many investigations here, which create that impression.

"Four prime ministers have been investigated in succession. This doesn't happen in normal countries. There has to be some sort of oversight mechanism."

Say an investigating judge, like in France?

"Or maybe it should be decided that prime ministers will be investigated only for serious offenses. If it's a matter of a large bribe. Maybe court approval should be needed before opening an investigation against a prime minister. You can't interfere with the work of the government because of trivial or borderline matters."

Was the Greek island a trivial matter? And if it emerges that the current prime minister received a very significant discount in buying a house, would this be a trivial matter?

"The Greek island was indeed a very grave affair. As for other affairs, I cannot express my opinion at this time."

Perhaps you want to postpone any investigation of the prime minister until the end of his term, as happened with Jacques Chirac?

"That depends on the gravity of the act. I want it to depend on the gravity of the act that is being investigated. There are a great many acts that in the past, no one would even have considered as a basis for prosecution, but today, they are a basis for prosecution. Take political appointments. After all, this is a phenomenon that exists everywhere in the world. Now, the possibility of appointing close associates has shrunk drastically, and in effect, the government has lost the ability to appoint associates."

Could it be that the process was the other way around? Maybe the appointment of cronies, people who aren't suited to their positions, ballooned, and then there was a reaction in the form of many indictments?

"Maybe that's correct, but nevertheless I am opposed to High Court intervention in appointments. There are other public mechanisms, which work far better than we imagine, and they should [be allowed to] do so. Look, Abraham Hirchson left his position [as finance minister] without the High Court intervening. There was also the case of a Knesset member who was almost appointed a minister; then it emerged that her academic record was problematic and her candidacy was withdrawn. This, too, happened without the High Court of Justice."

Maybe that is because in all these cases, they knew that the High Court was liable to intervene. What happened in the case of Yossi Ginossar? In any other country, it would have been inconceivable to appoint someone who sat on an inquiry committee, leaked things from its meetings, obstructed justice and even incriminated an Israel Defense Forces general. The government should have rejected him. But it did not do so until the High Court intervened.

"The fact that a certain mechanism didn't work perfectly in one case doesn't mean that it has to be replaced by a different mechanism. Let's suppose the chief of staff fails - does that mean the High Court of Justice should run the army in his stead?"

You are creating the misleading impression that the High Court runs the country. Such a statement is very harmful to its stature. After all, in most cases, the High Court throws the petitioners out.

"No, it doesn't throw them out. It deliberates on the case even if it decides not to intervene. The court expresses its opinion. It should have refused to deliberate on appointments at all. That isn't within its jurisdiction. Let's say that Ginossar's appointment was a bad one, and the High Court intervened. Now the court is being petitioned over hundreds of other appointments, because the door is already open, and from time to time, such petitions are accepted. Sometimes a person who has been appointed has a very small blot and the court would not have disqualified him. But the minister has already said to himself in advance that even though this person is excellent, if I appoint him, some enemy of his from 20 years ago will jump up and petition the High Court, and then the appointment will be stuck for who knows how many months. This is what happens when any institution arrogates powers to itself. The result is not good."

A nation at war with us

You want the High Court not to intervene in appointments. What else?

"The reinforcement of schools in the Gaza area, for example. A panel of three High Court justices, without considering a realistic timetable for reinforcing the buildings, without checking the budget, without finding out how long it takes to issue a tender for reinforcement, decided that the government has to reinforce the schools by the beginning of September. Is that serious? I don't believe that [former Supreme Court presidents] Aharon Barak or Meir Shamgar would have decided to intervene in an issue like reinforcement. Why shouldn't the High Court also decide issues like widening roads? Why shouldn't it compel the government to stop the Qassam [rockets]?"

Where would you allow the High Court to intervene? Could we say, in any issue that has to do with human rights? After all, you also objected to its intervention in the "neighbor procedure" and family reunifications.

"In basic human rights, the High Court has to intervene. But in the case of the 'neighbor procedure,' for example, the High Court intervened despite the attorney general's opinion that this procedure is reasonable and that people were not hurt by it."

When a fence is built inside someone's home, like the separation fence is, do you agree that the High Court should intervene in the route of the fence? After all, a basic human right is being harmed here.

"When the reactor was bombed in Iraq, human rights were also harmed. But this doesn't mean that the High Court should have intervened in the government's considerations as to whether or not to bomb the Iraqi reactor. With regard to the separation fence, it would have been possible to think about compensation rather than changing the route of the fence."

Do you think the route of the separation fence is nonjusticiable?

"It is necessary to recognize the fact that sometimes, the only relief should be compensation, and that issuing injunctions delays the work in a way that can harm national security. This is a very grave matter. It is necessary to be cautious about it."

Did you think that the High Court should not have intervened when Israeli Arabs' right to family reunification was taken away by what is called the "Amendment to the Citizenship Law"? This is a classic issue of human rights, civil rights.

"The High Court should not have intervened. This was legislation by the Knesset, it is an issue that also touches upon security policy and the character of the state. A few years ago, it would never have occurred to anyone that the High Court would intervene."

As far back as 1969, in the Bergman affair, the High Court, headed by then justice Moshe Landau, ruled that it is possible to overturn a law that harms the principle of equality during elections and did not pass with a 61-vote majority, as stipulated in the Basic Law on the Knesset.

"But there, it was a matter of democratic procedure: elections to the Knesset. When democratic procedure goes awry, it is clear that I want the High Court to intervene. When it is a matter of human rights versus security considerations, it is more complex. The Citizenship Law, or allowing the reunification of Palestinian families, is a national problem, not a problem of the rights of a specific individual who has been harmed. This is a matter of marriages between Israeli Arabs and residents of the territories in huge numbers, marriages with members of a nation that is waging war against us. This isn't about the marriage of a specific individual who is hostile to the state; after all, we don't investigate the positions of everyone who marries an Israeli when we allow him to immigrate to Israel. Rather, it's a matter of hundreds of thousands of people who have received a hostile education. This is a national problem."

As you perceive it, marriages with non-Jews could also become a national problem. If the Knesset prohibited marriages between Jews and non-Jews, would you agree to the High Court intervening?

"The right to marry is not anchored at all in our Basic Laws. To my great regret, the law in Israel already prevents marriages between Jews and non-Jews. This makes me very sad, but I don't want the High Court to intervene, because this is a matter for the Knesset. The High Court needs a legal and legitimate basis for its activity. Even when something does not look right to it, even when something does not look right to me, I still think that the High Court should not intervene."

So how would you restrict the High Court of Justice?

"I want to strengthen the High Court."

To strengthen it by restricting its powers?

"I want to strengthen its legitimacy. The High Court has a big problem. The magnitude of the problem has to be understood. The problem is both the erosion of the public's trust in it and its standing in the Knesset."

The High Court is straying from the consensus

Do you want the High Court to rule in accordance with the majority's opinions so that the Knesset and the public will like it better?

"Not at all. It's all a matter of degree. The High Court used to enjoy the trust of 90 percent of the public, and then, too, it defended human rights - and that was at a time when the human rights situation here was far worse than it is today. It's impossible to convince me that past justices defended human rights and democracy less. Maybe there are people who don't care that the High Court is arrogating more and more authority to itself and intervening in everything, because they trust the justices more than they trust the politicians. But I say that there's a problem when a body that was not elected in a democratic way, like the High Court of Justice, intrudes into issues that a body that has been democratically elected should be deciding. The question is whether we want decisions of basic principle to be made by the Knesset, or by a nondemocratic entity like the High Court. I think we should be concerned that Knesset members passed a law restricting the terms of court presidents by a majority of 49 to 5, even though the Supreme Court opposed it. This is indicative of a certain atmosphere in the Knesset against the Supreme Court."

Are you saying, then, that the law passed by a large majority because the Supreme Court opposed it?

"Maybe. I don't know. Meretz and the Arabs agreed with the Supreme Court's position and voted against the law. Maybe this suits the Haaretz line."

Do you want the Supreme Court to act only within the consensus and never to be in the vanguard?

"When the Supreme Court deviates from the consensus on an issue that concerns human rights, that is reasonable. But when it also deviates from the consensus over the very legitimacy of its actions, that's a problem. This means it is doing things that the Knesset has not authorized it to do, and part of the public is saying that this is not a good situation."

How can you say that the Knesset has not authorized the High Court of Justice to intervene? After all, Article 15 of the Basic Law on the Judiciary formulates the High Court's authority in the broadest possible terms. It says there that the High Court "shall hear matters in which it deems it necessary to grant relief for the sake of justice." This authority has not changed since the days of the British Mandate; it is not new.

"For years, this law was understood differently. It was clear that the [Basic] Law did not authorize the High Court to overturn [other] laws, except in the event of substantial damage to equality in elections, for example. Damage to democracy. Then, it was decided that a constitutional revolution had occurred, and that the new Basic Laws made it possible to overturn legislation."

The Knesset could change this, too. It has not lost its powers.

"The Knesset has resigned itself to this situation for many years, out of respect for the Supreme Court. Sometimes while gritting its teeth. I fear that the moment will come when the Knesset will no longer be willing [to do so]. Perhaps a constitutional court will arise. I propose changing the method of choosing justices so that there will be more variety in their approaches. Nowhere else in the world is there a situation in which the court is authorized to overturn legislation, but the justices appoint themselves."

"Appoint themselves? Is that how you see the Judicial Appointments Committee?

"The Supreme Court justices have tremendous weight on this committee. Not 100 percent, but tremendous."

They constitute only three of the nine members.

"But all the other groups on the committee are split; only the justices' group is united. This is like one individual controlling a bloc of a third of the votes in a public company."

Since the constitutional revolution of 1992, when the two new Basic Laws were passed, laws or parts of laws have been revoked only six times. That's a very small number. And that is the basis for your statements about the High Court's excessive powers? After all, the justices are very cautious about overturning legislation.

"I can say that in two of the laws that were overturned, intervention was not justified."

You have already spoken about your opposition to the overturning of the "Intifada Law," which prevented Palestinians from suing for damages even if they were incurred during noncombat operations. What is the other law?

"I am referring to the law on the disengagement from the Gaza Strip, the provisions concerning the level of compensation. One justice even said that [the court] should prevent the government from carrying out the evacuation itself. This intervention was superfluous."

No to intervention in drug subsidies

When people are evacuated from their homes and they claim that the state doesn't have the authority, that the move is improper, that the compensation is insufficient, who should decide?

"This was a law passed by the Knesset. The High Court should not have intervened. I want to propose a solution under which the Knesset would be able to reenact a law that the High Court has overturned, with a majority of 61 [MKs]. The innovation I want to propose, which I am mentioning now for the first time, is that the minority opposing the law should not be greater than 51 - that is to say, there should be a big difference between the proponents and the opponents. I am also prepared to consider the possibility of the requisite majority being 65 and not just 61."

Do you want to restrict the High Court through legislation? To change the Basic Law on the Judiciary?

"Not hastily. In a considered way, after an orderly and thorough public debate. If this does not happen by agreement, in the end it will happen without agreement. Knesset members will feel free to change the rules of the game however they want to, and the result will not be good."

What limitations would you impose on the High Court?

"I want to establish, in the Basic Law on the Judiciary, where the High Court can intervene and where it cannot. It is necessary to make these changes with broad public agreement."

For example?

"For example, the High Court would not be able to intervene in the national budget's spending priorities. The justices would not be able to decide on the size of the basket of [subsidized] medicines or on reinforcing Sderot.

Anything that costs money will not be justiciable?

"Of course not. When the court discusses discrimination, that also costs money, but I am not saying it shouldn't be discussed. If one person receives something and another doesn't, then equalizing conditions will cost money. But the High Court cannot tell the state to allocate more money for roads and less for education, or the other way around. I want to live in a country that allocates most of its money to education - so what? I still don't want the High Court to decide this. Budgetary priorities are not a justiciable issue."

What else?

"It is also necessary to find a way to limit the rationale of unreasonability. The High Court should not be ruling on whether a government decision is reasonable. I don't yet know how these changes can be made in the law, but the Knesset has many responsible people, it always has, and it does not tend to legislate in an unrestrained fashion, even though that is the image that has been created of the Knesset."

Exactly the same thing can be said of the image you are creating of the High Court. The High Court does not intervene in an unrestrained fashion. You are fighting something that doesn't exist.

"The High Court has clogged itself up with public petitions. That harms its work. It cannot continue. Everyone tries his luck there: Maybe the High Court will intervene, maybe it won't. This is also not good for the High Court."

The burden on the High Court does not stem from an excess of public petitions, but rather from civil and criminal appeals.

"Petitions to the High Court account for about a third of the Supreme Court's work, I believe. That's an awful lot."

How do you want to change the makeup of the Judicial Appointments Committee?

"I want to bring in public figures, more people from the civil service, not more politicians. I also want to establish the rule - which isn't written in the law, but is merely a tradition - that the committee's two Knesset members will always include one from the coalition and one from the opposition."

You came into a system that overall functions better than other systems in this country do, and you want to turn it inside out. Have you thought about the possibility that your reforms could turn out to be damaging?

"If everything were wonderful, I wouldn't be making changes. If different people had been appointed to the Supreme Court, if different voices were heard there, maybe they would not have intervened in the question of reinforcing the Gaza envelope and I would not be feeling a need to make changes."

Do you think there is a connection between the selection of High Court justices and the chances that your views will be adopted by the justices?

"It is necessary to select judges whose judicial worldview differs from the one that dominates the Supreme Court. People who come from the private sector, for example, see with their own eyes the results of High Court rulings. The justices who are serving today are from a certain milieu, they live in their own milieu and they don't see the public."

Do you think that until now, only justices with similar judicial worldviews have been chosen for the Supreme Court?

"I'm saying that people of a certain kind, with certain views, have been chosen for the Supreme Court - justices about whom it was known in advance that they favor expanding the High Court's intervention, rather than people like [former] justice Menachem Elon, who was against expanding the boundaries of intervention. I want people to be added who have a more restrained view. Therefore, I am trying to enlarge the Judicial Appointments Committee when Supreme Court justices are being selected."

Even in Barak's day

If the Supreme Court president today were Aharon Barak, do you think that even then, you would be saying that his role is only ceremonial, as you said of the current president?

"It could be that the entire dialogue would have been conducted in a different way, but I voiced my criticism of the Supreme Court during Aharon Barak's tenure. All my articles are from Barak's day."

So in your opinion, the role of the Supreme Court president is purely ceremonial?

"I said that in the ceremonial sense, the Supreme Court president is head of the judicial system, but just because he is the head of the system doesn't mean that he has powers of command that have not been established by law. The proof is the High Court's ruling that the code of ethics issued by then Supreme Court president Meir Shamgar was not compulsory, because it was not authorized by law. I also support transferring administrative powers from the justice minister to a nonpolitical entity within the court system, but this shouldn't be a single individual, but rather an independent entity made up of judges and public figures who will have authority to do things like allocating positions to be filled, appointing presidents and so on, while acting transparently and democratically, and with oversight."

This week, 22 professors from four different universities published a petition against you. Academia is where you grew up. Aren't you bothered by the fact that such a significant group has come out against you?

"This isn't the first clash I've had with the academic establishment. I played a major role in the establishment of the colleges. The first college to win recognition was the law school of the College of Administration, which I established as its first dean. This led to quite a difficult clash. I thought that I was doing the right thing, and I did it. In retrospect, it's obvious that it was worth it, despite the criticism."

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