"The high status of the Israeli justice system will be ensured, first and foremost the High Court of Justice. The government will protect the high stature and all of the functions and powers of the High Court, will oppose any change that might harm this stature or the way the justices are appointed." That statement is from Clause 40 of Olmert's government guidelines.
How did it come about that two justice ministers appointed by Olmert support far-reaching reforms in the justice system and limitations of its powers? Has Kadima declared its intention to castrate the justice system, and the voters do not know it or have not noticed? Or was this a hidden platform of the type the voter is kept from knowing?
A perusal of the statements and pledges Olmert and his party made regarding the justice system and High Court shows that the second choice is the correct one. They promised a totally different policy, and did not tell the voter they intended to suddenly come out of the anti-constitutional revolution closet.
Kadima promised reform of the courts, but said nothing about impairing its powers. It promised shorter lines, a lighter burden and a more streamlined judicial system, and also "a firm war against violence" and "stepping up law enforcement on all levels."
Kadima's platform also states that "the phenomenon of corruption must be dealt with severely." It is unclear how that fits in with the statements by the new justice minister, Daniel Friedmann, that "Israel is on its way to becoming a police state," and with his criticism of the use made on the charge of breach of trust. In his victory speech, Olmert pledged, "we will fully back all enforcement bodies, and we will respect the bastion of the rule of law in Israel and the courts, first and foremost, the High Court."
Olmert's government guidelines also stated that "the government does respect and will respect the ruling authorities in Israel: the Knesset and the courts, and first and foremost, the High Court of Israel. The government will work to strengthen enforcement bodies. The government will fight corruption and the destruction of values in all systems of life in the country, first and foremost in the ruling system and public administration."
Many consider the High Court as Israeli democracy's most important institution. Any analysis of the dramatic change of 1999, when the Likud was ousted from power, must take into account the shock felt by the public by that year's rally of a quarter of a million people against the High Court of Justice.
There is nothing wrong with criticizing the High Court. On the contrary, a debate on the extent of its powers is an essential part of public discourse. But there is something wrong with Friedmann's scathing criticism, when he wrote that the justice system has undertaken an "anti-democratic revolution." He also proposed consideration of abrogating the power of the High Court to strike down laws, establish a constitutional court, and impair the representation of the High Court on the Judicial Appointments Committee.
It is hard not to see in Friedmann's appointment an expression of identification by Olmert with his extreme agenda. The appointment seems like a particularly expansive interpretation of the expression "fully back all enforcement bodies" and an even more expansive interpretation of the pledge to protect "the high stature and all the functions and powers of the High Court.
Attempts can be made to fix the flaws of the High Court. Attempts should be made to promote the Basic Law on Legislation, which specifies the authority of the High Court to strike down laws. Professor Ruth Gavison, the outstanding opponent of judicial activism, can be appointed to the High Court. But it does not seem like anyone in the coalition is really interested in solving problems and reducing friction.
The prime minister is busily at war with the court. His response to the conviction of Haim Ramon was a kind of "let's take it outside." The truth is that no one elected him to go to war with Dorit Beinisch; and if anyone had thought that, he probably would not have been elected. If Kadima wants to castrate the justice system let it be so kind as to take that platform to the voter. It will be interesting to see how many seats it will have left (of the few that remain).
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