The Argument Centers on the Essence of Democracy

The success of Friedmann's plan, with the help of a Knesset majority, will not turn us into a 'Third World country,' as per Barak's harsh description, but it will cast a stain on Israeli democracy, both domestically and externally.

The overly concentrated attack by former Supreme Court president Aharon Barak against Justice Minister Daniel Friedmann in interviews in Haaretz and Maariv and in an article he wrote for Yedioth Ahronoth, included many aspects with one common denominator: The justice minister is supposed to be a "protective wall" against political intervention in the judicial system, rather than leading the attacks on it. The article merited a ministerial reaction in Yedioth Ahronoth, which was supplemented by an interview with Yair Lapid on his Channel 2 talk show.

The exhausting debate, which erupts periodically, dwarfs the main bone of contention between Friedmann and Barak, which must be rescued from the thousands of words that have been published. The debate is over the nature of democracy in Israel. It must be in the minds of many attorneys who support the minister in light of other issues regarding the efficiency of the court system and the behavior of some of its judges. The nature of the debate is the business of the entire Israeli public.

The basic debate surrounds the meaning of Israeli-style democracy. Friedmann's view is that democracy is formal in nature, based on the rule of the majority; according to this view, the Knesset is "omniscient" and is able to do as it wishes in matters of individual rights in general, and minority rights in particular.

Barak represents a viewpoint that is common in all democratic countries, one that he did not invent, of essential democracy, in which the laws are subordinate to individual and minority rights, which cannot be undermined except in the "necessary degree" crucial for maintaining democracy. This viewpoint, which focuses on constitutional judicial review, was recognized in the United States early in the 19th century even in the absence of a constitutional instruction specifically recognizing the authority of the courts to overturn laws.

The strengthening of this viewpoint was prominent in Europe in the 1950s as a lesson learned from the days of Nazism, which proved that parliamentary legislation cannot constitute the be-all and end-all, and that there are basic values that stand above it. Constitutional review flourished in Canada in the 1980s, and in South Africa and Israel in the 1990s. Such review is an inseparable part of a strong constitutional democracy.

The implementation of this style of democracy led in many countries to the massive judicial overturning of legislation that undermines equality or other basic values, as a necessary means for preserving the values of essential democracy. In Israel constitutional review by the High Court of Justice is more restrained, and has led to the overturning of a small number of laws because they undermined personal freedom, human dignity or freedom of occupation.

One of the rulings, which overturned a law that prevents Palestinians from suing for damages caused them in the territories, even when they are not an outcome of "war activity," aroused the anger of the justice minister, who wants to revive the law in the Knesset. Not by attempting to narrow the scope of the Basic Law on Human Dignity and Freedom, an attempt that would ignite a penetrating public debate, but through an overall constitutional change, which would allow the Knesset to revive, through an ordinary law, laws that were rejected by the High Court as contrary to a basic law.

Friedmann's plan to reduce the High Court's judicial review was not designed only to posit the Knesset as "omniscient," but also to release the executive arm from the bonds of decency and justice. Cutting back on the right to turn to the High Court will prevent individuals and organizations from warning against selective enforcement of the law, primarily in relation to government leaders, and will undermine the struggle against public-political corruption.

From the 1980s, reasons developed for judicial review of the activities of the public administration, which were not limited only to the question of whether the authority had the formal power to act against the individual. If we overturn the reasons for judicial review that are based on the unreasonableness of the administrative action or on its disproportional nature - in other words, the use of an overly drastic step against the individual - public law will return to the distant days of the 1950s.

At that time, the formal power of the public authority was usually enough to harm the individual. This without the obligation of decency and the obligation to give reasonable weight to various interests, and not only to give absolute preference to the interest of the state. Freedom of the press and freedom of demonstration, as well as personal freedom, will be subject, according to what is being proposed, to the arbitrary decision of the government, in matters of security and on other issues.

In an article published recently in the Yale Law Journal entitled "Law is Everywhere," Prof. Owen Fiss, one of the leading legal scholars in America, discusses Barak's unique contribution to Israeli and international law on the issue of the fight against terror. The article focuses on Barak's ruling on security issues, for example the separation fence, which did not consider security reasons a "magic word" for permitting harm to the individual, as opposed to the prevailing approach today in the United States.

The success of Friedmann's plan, with the help of a Knesset majority, will not turn us into a "Third World country," as per Barak's harsh description, but it will cast a stain on Israeli democracy, both domestically and externally.