Chalk one up for Olmert

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To judge from opinion polls, most Israelis would be hard-pressed to name one action of the Olmert government that they support. Well, I can: the appointment of Professor Daniel Friedmann as Justice Minister.

The appointment of Friedmann, a Israel Prize-winning jurist, to head the Justice Ministry hopefully sets a precedent for more cabinet ministers appointed on the basis of expertise. One of the great weaknesses of our coalition governments is that cabinet posts are divvied up as political spoils.

In addition to bringing real expertise to his position, Friedmann is on the side of the angels when it comes to defining the “rule of law” in Israel. On one side of the debate are those who equate the “rule of law” with maximizing the power of the Supreme Court. The enemy of the “rule of law,” in their view, is “politicization,” i.e., anything that confers power on the elected branches of government, both of which are inherently suspect.

The other camp would substitute for politicization the word democracy. In their view, the rule of law in a democracy means that the law-making power rests with the elected representatives, and the role of judges is to apply statutes enacted by the legislature. When courts rewrite statutes according to their lights or impose a set of legal norms that have no basis in statute, the result is not the rule of law, but, in former Justice Menachem Elon’s trenchant formulation, the rule of the judge.

Friedmann is firmly in the latter camp.

It was natural, if not inevitable, that the two camps would cross swords over the selection process for Attorney-General. The power of the Attorney-General in the current system is almost entirely a creation of the Supreme Court and a series of assertive attorney-generals who went on to the Court. And it is immense.

In the 1993 Pinchasi case, the Supreme Court ruled that the Attorney-General’s opinions are binding on the government, even when he is doing nothing more than expressing his personal opinion about proper governmental norms. It is enough for the Attorney-General to pronounce some government decision to be “not in accord with the rules of good government,” “bad policy,” or “inappropriate” and the government is completely stymied.

Under Court president Aharon Barak, traditional judicial restraints were abandoned. Every private citizen can challenge any government action with which he disagrees by appealing to the high court. The only party that cannot get a ruling on the legality of governmental action is the government itself, where the Attorney-General refuses to defend its position.

THE ATTORNEY-GENERAL has thus become the emissary of the Court rather than the government’s lawyer. By refusing to defend the government’s legal position, he spares the Supreme Court the messy business of enunciating legal rules to justify its policy preferences.

Like our anomalous method of judicial selection, in which the three sitting Supreme Court justices on the judicial selection committee exercise virtual veto power over the selection of their future colleagues, the enormous power of the Attorney-General has virtually no parallel in any democratic legal system.

By statute, the selection of the Attorney-General is exclusively delegated to the government. Yet for daring to insist that he (and not just the president of the Supreme Court) be involved in choosing the head of the committee to vet candidates for Attorney-General, and that the government choose from among three candidates and not be presented by the committee with a fait accompli, Friedmann has been pilloried by ex-justices and the Court’s acolytes in the media as the great enemy of the rule of law.

Justice (ret.) Mishael Cheshin compared Friedmann to Sennacherib, and declared that he is not Menachem Mazuz’s boss. True enough, that would be the Supreme Court. Haaretz’s Zev Segal wailed that this week’s cabinet compromise over the selection procedure for the next Attorney-General gives a political figure (the Justice Minister) a role in appointing the Attorney-General and deprives the Court President, an “apolitical” figure, of control of the process.

By what measure are justices “apolitical?” Is it because they have no ideology? No, that can’t be. Didn’t Aharon Barak himself say that the justices must give voice to the views of the “enlightened” segment of the population?

Is it because they confine themselves to the interpretation of statutes? Not likely. The Court has claimed for itself the right to reverse any government decision – e.g., how to protect school buildings in Sderot – with which it disagrees, and is recognized by friend and foe alike as the most activist high court in the world.

Is it because justices are above suspicion of influencing the Attorney-General’s prosecutorial functions? Hardly. Not by accident has the Attorney-General’s office long been the most reliable stepping-stone to the Supreme Court, and an ambitious Attorney-General will know the policy preferences of the justices, who control the judicial selection process.

Three outspoken critics of the Court’s judicial activism found themselves facing trumped-up charges: former Justice Minister Yaakov Neeman, who lost his post as a consequence; Reuven Rivlin, whose nomination as Justice Minister was dropped because of the opening of a baseless file; and Dror Hoter-Yishai, former head of the bar association. Another reform-minded justice minister, Haim Ramon, was soon out of office after a questionable prosecution on minor charges. Compare their treatment to that of Tzahi Hanegbi, who was only indicted on serious charges, after he was no longer Justice Minister and could be of no further use to the legal establishment. Just a coincidence?

The only thing that makes the Court President apolitical is that she is not elected. Woe to the democracy in which being a member of the elected branches of government is the ultimate bar to being entrusted with any decision-making authority.

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18 Responses

  1. Bob Miller says:

    SM said “The rule of law determines that the laws passed by a democratically elected government are those enforced by the Courts.”

    In practice, the Israeli Supreme Court frequently defies the rule of law, even if the applicable law is taken to be only what the Knesset enacted.

  2. SM says:

    Bob,

    You are not discussing the same issue as the rule of law. The rule of law does NOT determine what the law ought to be. It determines that everyone, great or small, rich or poor, is treated in the same way.

    And that answers your question. The rule of law determines that the laws passed by a democratically elected government are those enforced by the Courts. And, with the best wll in the world, your choice 1 is not a neutral description of the current position. If it were then there would be a political party with a program to alter things, for which people would vote. And there isn’t.

    The conclusion is that, as your choice of words betrays, what you don’t like is the system. But the system ensures everyone’s rights – not just yours. Deal with it.

  3. Bob Miller says:

    In discussing the rule of law in Israel, we ought to consider which fundamental law ought to rule:

    Is it (1) vestiges of the legal system imposed by colonial oppressors such as the British and Turkish, as augmented by an inbred judiciary forcing the mores of one atheistic elite onto the Jewish nation?

    Or is it (2) what Dr. Isaac Breuer Z”L called the Constitution of the Jewish People, namely our Torah?

  4. Garnel Ironheart says:

    And what would be wrong with a Chareidi head of state? Look at the mayor of Yerushalayim. I’ve been under the impression that he’s done an outstanding job given what he’s had to work with over the last few years. Consider Bene Beraq. Yes, one corrupt Chareidi mayor bankrupted the city but another one rescued it and put it back on its feet.
    People can be seen as part of a group and assumed to carry all the baggage, both good and bad of that group, or they can choose to be individuals who wish to express the finest aspirations of that group. That’s what makes a great leader – someone who balances his personal beliefs with his responsbilities to the country at large, even those he disagrees with. A Chareidi government, or Supreme Court, would be no more or less likely than the current occupiers of those positions to be corrupt or inspiring but to rule people out because they belong to a particular group isn’t appropriate at all.

  5. SM says:

    I don’t think that perception is a common one. It is common only amongst the religious right.

    The tension between a Court’s making law and enforcing law is common to every democracy. It is a debate in the UK, in Europe and in the States. Barak has certainly said that he has a principle of applying law in a particular way – so what? Law students spend a large proportion of their training deducing a particular Judge’s stance. Judges that save them the trouble are not common but hardly unknown either – viz Lord Denning, for example. And arguably Lord Hoffman as well. And every Supreme Court Justice.

    It’s false to present this as an Israeli problem. It’s not a problem and it’s not limited to Israel. It’s how the law operates – and in every parliamentary system, the government can legislate to overturn a decision it dislikes.

    The proposition that nothing a private citizen does affects the court’s actions is nonsense. When litigants come before the Court, their conduct is assessed and the one with the best case wins. To suggest that the Court chose the wrong person based on your own interests simply substitutes law based on (your) prejudices for a system of justice. There is no RIGHT to win, or have a Court – any court – determine things as you woudl wish.

  6. Yehoshua Friedman says:

    SM,
    I don’t believe you are aware of a couple of things about the judicial system in Israel and its relationship to the legislative and executive branches. First of all, the way in which the judges are appointed is not by public hearings and approval of the legislature as in the US. A closed committee dominated by the Chief Justice presents the candidates, who are not questioned and are rubber-stamped. The second point is that the parliamentary system in Israel is based on the British system which presumes parliamentary supremacy. The problem is that the Knesset and the Prime Minister are cowed by the elites of the judiciary, media and academia, which are basically themselves ruled from the US/EU/UN/CFR. Nowhere is there a situation in a democratic country in the world where the attorney-general’s opinion is binding on the government and the A-G can refuse to represent the government in court. A PM with guts would fire the A-G and keep presenting candidates until they are approved whether the court likes it or not. US President Andrew Jackson once announced regarding Chief Justice Marshall, who invented the concept of judicial review, “Mr. Justice Marshall has made a decision. Now let him enforce it.” That would fit good old Israeli chutzpah. Unfortunately nobody had the guts, which is not surprising, because such a PM could end up like Rabin or Sharon.

  7. HILLEL says:

    ORI:

    Oi-Vey, mow you’re equating Torah Judaism with Stalin and Hitler’s ideologies. That’s what happens when you go up into the stratosphere with your level of abstraction.

    Please come back to Earth. The Torah is real–it is true. The other ideologies are false. If you doubt that, go to Aish.com, and read Rabbi Noach Weinberg’s 48 ways of Wisdom. Or, read the Sefer Kuzari.

    Stop pretending that all viewpoints are equal and, therefore, we shouldn’t legislate any of them. “Nature abhors a vacuum.” If you fail to be loyal to the Torah, you will fall prey to the brutal despotism of Hitler and Stalin.

  8. sarah elias says:

    “If you don’t like the Court’s decision – go live in Israel, vote, lobby and ensure that legislation reflects your view.”

    To raise but one point against your thesis, your suggestion will not help at all, since the Israeli Supreme Court does not hesitate to overturn Knesset legislation with which it does not agree, nor to interpret such legislation in ways patently at odds with the Knesset’s intent.

  9. Garnel Ironheart says:

    I don’t think the issue is attacking a neutral body for applying the law as best it can. I think people are concerned about the behaviour of the high court because
    a) Aharon Barak has said time and again that the court is not a neutral body but the instrument for shaping Israel into an enlightened society. This is hardly encouraging to those complainants before the court who represent attitudes opposed to his own. Can you blame them for doubting their ability to get a fair hearing?
    b) What is the function of the High Court? Is it to enforce the law or create it? Under Barak, the latter has happened all too often. The fact that the judges are completely insulated from the public is what worries people. If you don’t like the government, vote against them. But even if I follow your advice and go to Israel to vote and lobby, it doesn’t matter because nothing I can do as a private citizen affects the court’s makeup or actions. That’s why people feel cut off from justice.

  10. SM says:

    Sorry, but the Supreme Court is worthy of enormous respect. Their decisions fairly apply the law. The objections I have seen are all based on the proposition that the law should be differently applied because the objector feels that the decision goes against their interests – which they characterise as unfairness.

    The Court is not a creature of someone’s interests. It does not exist to ensure that different groups get a share out or a say in everything. The Court applies the law. If you don’t like the Court’s decision – go live in Israel, vote, lobby and ensure that legislation reflects your view. If you fail don’t moan – it is the system called democracy. Which is what Israel is.

    The description of the Court under Barak, although exaggerated, simply reflects the position in every common law country – i.e. Israel’s secular legal heritage. Why on earth shouldn’t a single citizen, adversely affected by the actions of a public agency, be able to challenge that agency? The UK has the same system.

    Attacking a neutral body for applying the law as best it can (and that is all anyone can legitimately expect or hope for) is poor stuff. It simply allows for the criticism that the religious want what they can get from the system, but turn round and yell foul if the system doesn’t give them what they want. Lots of people wish the law was different. None are listened to with respect when they complain that the Court should behave as if the law actually was different. That’s corruption – not justice.

  11. Garnel Ironheart says:

    As Spiderman learned in his very first issue: With great power comes great responsibility. The problem is not the judge’s abuse of their power to control society in non-democratic ways. It is the judge’s belief that everything he does is for the best and that this abuse is therefore justified that’s the problem. Introspection and respect for alternative points of view should be two of the qualities for a spot on the High Court.

  12. Ori Pomerantz says:

    Moderators, please use this reply instead:

    Shimon, you’re right. I just meant that to make the case that Chilonim have reason to be scared of a Charedi Israeli government.

    HILLEL,

    Thank you – I love this board, since it lets me discuss things with people and viewpoints I wouldn’t normally meet. You’re a great person to argue with (that’s a compliment – I only argue with people I respect).

    1. I agree there’s a lot of hypocracy in the Israeli elites. That’s the reason I said a Charedi government would be more explicit.

    2. The principle here isn’t moral equivalent, but live and let live – a political princpile, not a moral one. As far as I can tell, it came about after Europe exhausted itself in the thirty years’ war, a war fought between two groups who believed they knew exactly what G-d wanted them to do.

    I’m not talking about encouragement, but actual laws, enforced by armed cops. The reason not to try to enforce the truth on other people is that they’ll try to enforce their falsehoods back on you.

    3. True, but the worst despots are the ones who do have a “moral” vision for humanity, or at least a portion of it, such as Stalin and Hitler. Be glad that Israel’s elites are at most amoral – that makes them weaker.

  13. HILLEL says:

    ORI:

    Intelligent questions, all.

    1. HYPOCRISY: The secular elite claims they are “democratic.” This is Orwellian nonsense. The are “democratic only in the sense that China is a “Democratic People’s Republic.”

    2. MORAL EQUIVALENCE: “Different strokes for different folks” is an amoral concept. It assumes that there is no objective truth. We Torah Jews know that G-D created the world and gave us an instruction manual for living in it. Why shouldn’t we encourage our fellow=Jews and Mankind to live successfully, instead of committing collective suicide.

    3. Since the amoral Israeli secular elite does not even claim that their actions are based on a moral vision for Mankind, their coercive tactics are nothing more than ego and ambition–sheer arrogance and despotism.

  14. Simon says:

    Ori,
    A good political leader in Israel need not be charedi. The truth is, I don’t believe anyone especially Israel could currently have a Charedi head of state.

    But as far as making the best political moves to insure the preservation of human life (and i don’t just mean Israeli lives but human life as a whole) recent Israeli Prime ministers have a really bad track record. Olmert hasn’t really done anything in the past year to help his political image and that’s why he and for that matter the Israeli government as a whole currently has a really bad rep.

    Note: I’m not saying that there is a easy political solution to the current situation. As much as I wish there was.

  15. Ori Pomerantz says:

    HILLEL,

    Would things be better under a Charedi government, or would they just be reversed and more explicit? If Charedim ran Israel, would they allow Chilonim to just be, or would Halacha require enforcing Kashrut and Shabbat on Jews regardless of their personal beliefs?

    My father z”l used to eat pork. If Israel were ruled by a Charedi government, would he have spent his declining years in jail or regularly getting Malkot? If so, you shouldn’t be surprised that members of the leftist elite, who came from the same social group, bend the rules to prevent that.

    Note: I’m not saying that what’s happening in Israel is good or acceptable. I’m merely saying that there are so many contradictions within Israel, if would be more surprising if it did manage to live up to US ideals of democracy and fair play.

  16. HILLEL says:

    JONATHAN:

    You have described a perfect despotism–dictatorship by the elite through invisible strings attached to the Attorney General, and through him, to the Police.

    Anyone who messes with the oligarchy can be–and-is–investigated, without notice. From the mightiest to the lowest, no one is immune from KGB-like frameups.

    Theis is a quiet reign of terror that forces everyone to toe the left-wing secular party line.

  17. sima ir kodesh says:

    If only we could renew the days of the judgeship of such as Menechem Elon (father of Rav Elon of Yeshivat Hakotel), musmach of Yeshivas Chevron who ruled with daas & ehrlichkeit.

  18. Bob Miller says:

    I hope that putting the Court in its place will be helpful, but realize that there is also much about the Knesset, ministries, and other organs of government to fix before we can rejoice very much.

    Don’t forget the great disparities between the policies the voters vote for and the policies the government tries to carry out.