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Daniel Friedmann versus the High Court of Israel

W

HEN EHUD OLMERT became Prime Minister of Israel, he appointed his good friend Haim Ramon to head the Justice Department. Ramon had a number of achievements behind him. In 1994, as chairperson of the Histadrut (the General Federation of Labor), he sheared that body of its assets, which were sold into private hands for peanuts. Ramon also laid the foundation for creating our present health systems, for the poor and for the rich, under the guise of "national insurance." The new minister, Olmert hoped, would carry his reforming spirit into Justice. But Ramon's term was destined to be brief. On July 12, 2006, minutes before the government decided to attack Lebanon, he sexually attacked a young soldier. She filed a complaint and legal proceedings began. In August Ramon resigned. Cynics claim that the subsequent investigation, intense and even obsessive, was motivated by the desire to eject Ramon from the Justice Department and sidetrack his planned reforms1.

In Ramon's place Olmert appointed Professor Daniel Friedmann. His background suited the PM well. The halo of legal scholarship, it was thought, would lend Friedmann's actions a façade of professionalism without favoritism. He is neither politician nor sex offender. But Friedmann, who in recent years vented non-academic fury upon the legal system in the yellow daily Yediot Aharonot, has turned out to be an even bigger bulldozer than Ramon.

Not five months after entering his new job, Friedmann could chalk up an outstanding success: the Knesset limited the term of the High Court president to seven years. This change, a seeming technicality, will have a significant impact on the balance of powers among the government branches. In the course of the years, High Court presidents have achieved an authoritative standing with the public. This has enabled them to fend off those who have tried to undermine the Court's clout. The strength, tact and experience of these presidents have reinforced the justice system as a whole against heavy pressures exerted on it, preserving a wide area of judicial independence. The Court presidents, as a result, have had a fair amount of influence on Israeli society. In limiting the term, the Knesset makes it difficult for a president to accumulate this sort of power; it squeezes the job back into the narrow mold of implementing administrative measures. To dismantle the power of the High Court president, thereby to weaken the justice system, was the target, it seems, at which Olmert and Friedmann aimed.

Friedmann is pushing a series of further reforms. He has been trying to enhance the role of politicians in appointing the Attorney General, thus emasculating another locus of power that has sometimes withstood governmental transgressions. He has raised the idea of changing the system of judicial appointments to reduce the input of the High Court. He is seeking to narrow the parameters under which public organizations—e.g. human rights organizations—may turn to the courts: only someone who is directly and personally involved in a question, holds Friedmann, should be permitted recourse to the justice system. He seeks to define areas that will be beyond the Court's pale.

Friedmann's most blatant initiative concerns the balance of powers. Israel does not have a constitution, but it does have what are called Basic Laws, which are supposed to be proto-constitutional. They include, for example, the Law of Human Dignity and Liberty, which protects certain rights. Sometimes the court has nullified a new law because it contradicts a Basic Law. Friedmann wants to empower the Knesset to override such a ruling by passing the law again, in which case it will be immune from High Court veto. In the Israeli Knesset, we note, it is possible to pass all manner of racist measures with the utmost ease and by an almost wall-to-wall majority. The thrust of Friedmann's initiative, therefore, will be to transform Israeli "democracy" into an unbridled dictatorship by the parliamentary majority.

Even prior to completing this initiative, Friedmann has begun to push for the renewed passage (in different wording) of the last law the court nullified. This law would keep the courts from discussing claims brought by Palestinians whom Israeli forces have injured. Friedmann has also stated that the court should not intervene in a law that prevents Arab citizens from living in Israel with spouses who hail from the Territories.

Several laws before the court would likewise be helped by the new initiative. One concerns the privatization of prisons. The matter at stake is the extent to which the government may transfer authority to private hands; this issue involves the financial interests of very influential people in Israel. Human rights groups are also bringing claims against the legality of a law that permits Israel to detain the citizens of enemy countries without trial or time limit, under the rubric of "illegal combatants." There are also claims against a law that limits the rights of certain security suspects during interrogation. In all these instances, after Friedmann's reform, the Knesset would have the last word.

The public discussion of Friedmann's initiatives occasionally stoops to gossip about motives. He possesses, it is said, an unquenchable rage against the current High Court president, Dorit Beinisch; in 2004, before becoming president, Beinisch blocked the appointment to the High Court of Friedmann's close friend and associate, legist Nili Cohen. In more edified forums, by contrast, each of the new initiatives receives a deep and searching discussion of its pluses and minuses. Neither the gossip nor the profundity is deserved. The Friedmann initiatives are Olmert initiatives. What we have here is a political attempt to alter the balance of powers. One shudders to imagine how things will look when the Olmert-Friedmann elephant gets done with the china shop.

O

ne should not idealize the High Court. It is part of a capitalist state that runs on a system of bourgeois democracy; the state is based on principles of ethnic supremacy and apartheid (or, if you will, Occupation), according to which it keeps a large group of people under military rule and oppresses them. Although they prefer a different terminology, the High Court Justices do not seek to change this basic fact. Despite their activist image, most petitions on human and Palestinian rights are rejected. Usually the Court avoids intervening in broad political decisions. It refrained from any decision, for instance, concerning the legality of the settlements; it accepted the state's position on the "temporary" separation barrier deep within the West Bank; it did not prevent elimination of the welfare state. Most individual petitions—those of administrative detainees, for example—are rejected.

Nevertheless, the path toward social justice and the defense of minority rights frequently leads to the Court. Since the 1950's, for instance, it has defended freedom of expression by minority groups. Court decisions strengthened the status of Arabic as a national language. In recent years it has thwarted attempts to prevent Arab parties from running in elections. It outlawed torture, and despite the holes in its decision, the reality in the interrogation chambers is somewhat better today. (See "The Loophole," Challenge 104.) In the field of land allotments, the High Court's decisions have advanced equality—both in cases of discrimination against Arabs and in cases where the allotments would have deepened existing class and ethnic gaps. Groups such as women, homosexuals, and the physically or mentally challenged have received favorable rulings. Non-human animals have been defended against economic interests. Even in the most difficult realms—Israel's economic policies and its policies in the Territories—the Court has had a moderating influence; in recent years it has intervened increasingly for human rights in these areas.

As a focus of power, the High Court gives to the Justices, and hence to the social group from which they come, the possibility of shaping the society in a measure exceeding their numerical or economic clout. Most Justices come from the old, established social elites. Most are highly educated Ashkenazi Jews. In the layer they represent, there is a deep commitment to liberal values. It is fair to assume that most grew up on ideas of solidarity that combine national unity with social-democratic virtues. All have undergone a prolonged socialization in the judicial system, whose ethos they have absorbed. (No successful private lawyer will readily exchange a plush legal office for a seat on the bench.) We may assume, therefore, that most Justices are not personally involved in the business community. Their close friends do not necessarily include building contractors, speculators, and purveyors of arms or diamonds. Almost half the High Court Justices are women, a far higher proportion than in the Knesset or the government. In contrast with politicians, they do not depend directly on wealthy contributors for advancement. It is no wonder, then, that the Court functions as a restraining factor on the government and big money. Those who seek to weaken it are people in high office, who view it as the final hurdle between themselves and absolute power.

Even if Friedmann fails to pass all the reforms he intends, he has already managed to weaken the Court. He has sent the entire legal system into a tailspin. Instead of working to strengthen that system, legists have been forced to fight rearguard actions to keep what they have. The Court has no army. It holds no budgetary purse strings. Ultimately, its power derives from a kind of wizardry, a spell that compels obedience. The preservation of this wizardry demands vigilance. Its effectiveness requires, among other things, the building of an almost mystical image of detachment and objectivity. Innumerable rules of ceremony, codes of dress and even architectural forms are invested here. The struggle in the media between the Justices and the Minister undermines this image.

The harm to the High Court's power and legitimacy will likely be a final blow to public trust in government institutions. The Knesset, the government and public administration have long been recognized as corrupt. Nor is anyone suckered today by the gala event of bourgeois democracy: parliamentary elections. There is no difference among the major parties. All have disappointed the voters. The politicians have been exposed in their ties to the rich. Israel's President until a few weeks ago, Moshe Katsav—the very symbol of statehood—copped a plea to avoid accusations of serial rape. The army, whose then Chief of Staff made haste to sell his portfolio on the eve of the Lebanon War, has lost its standing in the public eye. The military failure, along with the impression that the officer staff abandoned soldiers in the field, has contributed to this decline. Amid all the chaos, however, the Court managed to maintain a measure of broad legitimacy. Willy-nilly, it took on the role of saving Israeli society from itself: the High Court will block corruption; the High Court will make Katsav go to trial; the High Court will ensure investigation of the Lebanon debacle; the High Court will force the government to protect schools in Sderot against rockets; the High Court will increase the number of subsidized medicines, and so on. But in the wake of Olmert and Friedmann, finito.

When a regime has lost its legitimacy in the eyes of many among its subjects, the result is instability. Such a situation can lead to mounting moral decay, social collapse and even the society's disappearance as an independent political entity. It can engender a revolution that may arouse public hope for a better regime. But the vacuum can also stimulate the rise of a fascist dictatorship, riding to power on the back of a public longing for order.

These considerations leave me, I must say, with mixed feelings. On the one hand, there is satisfaction in watching the High Court squirm, for it has betrayed too often its obligation to defend human rights. Yet there is concern about the unfettered gallop of a regime that has lost the restraints that protected its people from it. There is malicious joy in watching a bourgeois democracy eat itself from within, but there is anxiety about what may come in its place. Between bad and worse, I cross my fingers for the President of the High Court.

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