Some of you may have read my post, A Kiss begets a New Threat to Israeli Democracy and felt that it was premature. I’m sad to say that Justice Minister Daniel Friedman, who was appointed by Olmert to replace Haim Ramon (who has now been made vice-premier of Israel) after Ramon’s momentary lapse into a young female government employee’s mouth, is proving to be as bad for Israel as predicted.
On the one hand, Friedman is cutting deals with the ultra-Orthodox to strengthen their role and reach within Israel’s civil society. To this end, he appointed 12 out of 15 ultra-Orthodox rabbis to Israel’s rabbinical court (he was forced to cancel the appointments by Israel’s AG later), did not defend a son-of-Survivors attorney in his ministry who was permanently ejected from the Knesset for slapping an ultra-Orthodox politician who called him a Nazi, and is now flirting with allowing a “black list” database of non-marriageable Israeli citizens who don’t meet strict rabbinic criteria. It is hard to tell whether this is political pandering with the objective of ensuring harmony with Ultra-Orthodox political parties and continued support for Kadima within the government, or whether Friedman actually believes the Ultra-Orthodox deserve outsized power within Israeli society.
On the other hand, while attempting to strengthen the Ultra-Orthodox, Friedman is also attempting to weaken the judicial system, especially the Supreme Court, and to increase the powers of politicians over the justices. In order to do this, he has ordered the removal of judicial influence in the selection of judges, particularly senior judges, and increased political influence in these appointments. Curiously, in sending out the order for this historic change in the manner Israel’s judiciary operates, Friedman neglected to copy the letter to the members of the Supreme Court including its head, Dorit Beinisch.
Previously, Friedman sponsored and successfully passed a bill limiting the term of the Supreme Court presiding justice to 7 years. Historically, justices served until their 70th year when mandatory retirement takes effect.
A number of prominent jurists in Israel have attacked Friedman for his recent moves, including former Justice Minister Dan Meridor and former deputy Supreme Court President, Mishael Cheshin. Finally, Dorit Beinisch has also responded publicly in a letter. Here are excerpts.
“Your proposals are meant to substantially change the mechanism set down by law to elect the presidents, deputy presidents and the head of the Courts Administration. The legality of the proposed regulations is questionable since, on the face of it, they contradict the system of appointments according to law and violate the constitutional tradition according to which the judicial system has been operating for many years.”
“It is clear that these proposals are another link in the series of steps you have been taking that cause disagreements and arguments and are aimed at destroying the existing structure of the judicial system and the status of the office of president of the Supreme Court,” she added.
“Do you think that it is right that the presidents will be dependent on the minister only – in other words, the executive branch of government – so that the judicial system will not operate as an authority under the professional responsibility of the president of the Supreme Court? Is this what you call independent?”
“[You are] seeking to challenge the principle anchored in the provisions of the Courts Law regarding the power of appointment that gives expression to the joint responsibility of the minister and the president of the Supreme Court.”
“According to your proposal, the president of the Supreme Court will have no status regarding the appointment of the presidents and deputy presidents. On the other hand, a retired judge appointed by the minister of justice, who is a political figure, will have that status.”
“Your proposals show that you are not familiar with the judicial system and the responsibilities of the presidents and deputy presidents of the courts.”
She said she hoped Friedmann “has the strength to think things over and protect the judicial system rather than rush to damage the foundations that were laid at the beginning of statehood and nourished ever since to create a professional, autonomous and independent judicial system.”
Friedman responded by stating that Beinisch should not have made this debate public.
“Hey, you’re destroying the judiciary!”
“Ignore the Supreme Court President, she shouldn’t be writing public letters.”
Friedman feels that he can change Israel’s judicial system by sending out orders and without any public discussion or debate. He also believes that he can bypass the judges – even the most senior judges in Israel – in making his decisions about Israel’s judicial system. It is a stupendous feat of chutzpah and one that can only harm Israeli democracy by giving power to politicians over the justices.
If Israel’s politicians were angels, this would be understandable, but in a period where the PM, his former assistant, his former treasury minister, the former President, the current Deputy PM, and a number of Knesset members are all being investigated, charged or indicted on a variety of criminal matters, the one thing we know for certain is that Israeli politicians are not angels. Giving them control over judicial appointments would undermine the integrity of the judiciary and damage any possibility of objectivity and fairness within the legal system.
Friedman was appointed by Olmert, who knew that his new Justice Minister had a serious personal and philosophical animus toward the Supreme Court. Olmert appears to feel that weakening the justice system would benefit him and his party. It is obvious that Friedman would not be taking such an aggressive position if he didn’t have the confidence of full backing by his superior, the PM Olmert.
We can only hope they are stopped by the public and those politicians who can see reason. The difference between a strong, independent and fair judiciary which Israel has at the moment, and a weak, dependent and biased judiciary which is what Friedman’s proposals will create, is the difference between a vibrant democracy and a corrupt banana republic.