Justice Minister Daniel Friedmann came under fire this weekend from former Supreme Court justices Aharon Barak and Mishael Cheshin for his effort to draft a bill that would restrict the Supreme Court from ruling on political, security and budget matters, among others.
"The issue of justiciability must not be handled in terms of legislation; the subject cannot be legislated. These are struggles over the country's soul," said Barak, speaking Friday at a stormy Association for Civil Justice conference in Caesaria.
Cheshin was even more blunt in his address yesterday, calling the justice minister "a bull rioting in a china shop."
Barak described at length his objections to Friedmann's various initiatives.
"Of course not everything is justiciable; there are matters that are not justiciable, but it is important to deal very gently with matters of justiciability," he said. "Maybe the court overreached in the matter of justiciability, although I do not think so. Then you should discuss this, but not stick the legislature's hand into the most delicate tissue of the judicial process."
Barak added, "In other countries they don't talk about lack of justiciability. The constitutional court in Germany dealt with the question of whether the army can fly to Kosovo."
Earlier Friday, Barak met with Prime Minister Ehud Olmert, reportedly to recount his reasons for objecting to all of Friedmann's initiatives.
Besides objecting to the proposed bill on justiciability, which Friedmann's office said is merely at a preliminary stage of discussion, Barak addressed the following issues:
Restricting the High Court's constitutional jurisdiction - According to Barak, Israel's constitutional structure recognizes the supremacy of all 11 basic laws, and therefore he opposes Friedmann's proposal, which seeks to nullify laws that contradict just two basic laws - on human dignity and liberty and on freedom of occupation. "You cannot separate them," Barak told the conference, "it's either none or all."
Knesset overruling High Court - Barak warned against passing the amendment to the Basic Law on the Judiciary, which would permit the Knesset to approve by a majority of 66 MKs legislation struck down by the High Court. He argued that this matter should not be voted on separately from the entire constitution, but proposed as a compromise returning to the Basic Law on Legislation bill the Justice Ministry issued a year ago.
Separation of powers - Barak opposes Friedmann's definition in the matter: "The minister says, 'We want separation of powers wherein the government's decision is final even if it is illegal.' That is not separation of powers. Separation of powers is not a permit to violate the law or the constitution; it must operate within the law."
Judiciary's independence - Barak took a dim view of Friedmann's interference in the active administration of the court system. "For years the accepted view among Supreme Court presidents and justice ministers was that this was a joint administration - the president manages the system internally and the minister is in charge outwardly, vis-a-vis the government and the Knesset. The Supreme Court president served as a buffer between the lone judge and the justice minister ... The moment you do away with the president-as-buffer, that creates a symbiosis between the judges and the executive branch."
Cheshin minced even fewer words in his speech against Friedmann yesterday: "What is taking place now is not a debate - it is a fight over democracy as I understand it." Declaring that "Friedmann is behaving like a bull rioting in a china shop," Cheshin went on to ask: "Was the High Court so terrible until now? Did democracy suffer so badly from the Supreme Court that the court has to be bombed and softened with heavy artillery?"
Cheshin listed Friedmann's legislative initiatives, lambasting them as "unbelievably brutal" or just plain "unbelievable," then concluded: "The truth is that I'm tired, worn out, fed up. For eight months I've been living in a constant nightmare. Friedmann's reforms come one after another, Friedmann introduces his reforms at the pace of a machine gun - 1,100 rounds per minute. I'm in waiting-to-be-hit mode. Every night I go to bed with the sword under the mattress. Everything's power moves, operating without a public debate. Friedmann is a man of power who charges into a china shop. It's like Sennacherib's expedition - destroying and pillaging. I don't understand the hatred and denunciation of the Supreme Court."