The End Of Judicial Tyranny In Israel?

By: Steven Plaut

Published: February 14th, 2007

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It pains me to tell you this, but Ehud Olmert has actually done something right. Possibly the very first correct thing he has done since becoming prime minister. And it is spectacularly correct!

Olmert has appointed Professor Daniel Friedmann as the new minister of justice. And Professor Friedmann is determined to blow the whistle on the long reign of judicial tyranny imposed on Israel by its anti-democratic judges and by advocates of judicial activism.

First, let’s back up a bit. Israeli democracy has for many years been under massive assault by anti-democratic elitists promoting judicial tyranny. Under their doctrine of judicial activism, it is the proper role of unelected judges to trample, trump and override the decisions of the elected representatives of the Israeli people.

Led by previous chief justice Aharon Barak and now by current Chief Justice Dorit Beinisch, the advocates of judicial activism believe leftist judges should dictate to Israel’s legislature what laws those lawmakers may or may not make. Accordingly, judges should be empowered simply to make up the law as they go along.

Bear in mind that judges in Israel cannot be removed from the bench through any process of impeachment or ballot referendum. Advocates of non-impeachable activist judges want them to dictate everything in the country, from micro-decisions made by the army to Israel’s foreign policy because “absolutely everything should be subject to judicial review” (a favorite Barak slogan).

These people generally want the courts to impose a leftist political agenda on Israel, and that is what judicial activism judges often do. Barak infamously has stated that judges in Israel impose ideas favored by “enlightened opinion,” which of course always means the secularist Left. The vast majority of Jewish Israelis hold “unenlightened opinions,” according to such snooty elitists.

The Israeli Supreme Court has ordered the government to record homosexual “marriages” that were registered in other countries, and has granted spousal rights and privileges to homosexual couples. The court ruled that there is a constitutional right in Israel to be an importer of non-kosher foods (remarkable, given that Israel has no written constitution at all), but no such right to be an importer of kosher food.

The court has collaborated in the many assaults against free speech and free expression in Israel, assaults invariably directed against the Israeli Right. The court has refused to stop the persecution of anti-Oslo dissidents or to overturn Israel’s ridiculous “anti-racism” law, which declares that expressing Kahanist points of view is a felony but cheering on suicide bombers or calling for Israel to be annihilated is protected speech.

A Supreme Court justice, Ayalla Procaccia, last year tossed female teenage settlers into prison for their criticism of government policy at a protest, declaring that the girls were guilty of expressing an unacceptable political opinion. “The message must be made clear that the law will be enforced, at times of calm or at times of crisis, for minors or adults,” the judge declared.

Just a few weeks back, hopes for reining in judicial tyranny in Israel seemed bleaker than ever. Professor Ruth Gavison had been a contender for appointment to the Israeli Supreme Court. A longtime champion of civil rights, somewhat left of center and secularist, Gavison nevertheless is a ferocious opponent of judicial activism and would have worked against the activist judges on the bench.

That was enough to arouse the Left against her. In a campaign somewhat reminiscent of the malicious jihad in the U.S. against the nomination of Yale Professor Robert Bork to the Supreme Court, the Israeli Left mobilized its shock troops against the Gavison appointment and it was shot down.

Meanwhile, Dorit Beinisch took over as chief justice when her mentor Aharon Barak retired. Beinisch used the occasion of her accession to praise Barak’s judicial activism and promised to conduct more of the same Like Barak, she believes the court is entitled to revoke and cancel laws passed by the Knesset, supposedly as part of “judicial review.” Never mind that there is no constitutional basis in Israel for such judicial review.

The distinguished Robert Bork mentioned above is on record as declaring that Israel’s Supreme Court is the very worst in the democratic world in terms of ignoring checks and balances and in its promotion of judicial activism. He wrote: “Israel must have the most activist, and from my point of view, the worst court in the Western world. They have developed an intrusive, pervasive constitutional law without really having a Constitution. Now that’s hard to do, but they’ve managed it and they have managed to get themselves in a position where they, in effect, control the membership of their own court.”

Tel Aviv law don Daniel Friedmann is both a man of principle and a man of conservative legal principles. Politically he is a centrist. He was one of the people who served on the Beijski Commission in the 1980′s, set up after the bank share scandal of 1983. That commission recommended a program of critical economic reforms that the political hacks largely ignored.

Educated at the Hebrew University and Harvard, Friedmann strongly opposes judicial tyranny and is dead serious about reining it in. He wants to end the system under which the Israeli commission for appointing judges acts as a rubber stamp for candidates supported by the judges already on the Supreme Court. He wants to create a constitutional court that will strip the Supreme Court of its powers of judicial review of laws. He wants to change the system under which the chief justice of the Supreme Court is selected.

In short, he wants to appoint judges who will actually obey the law, an idea quite novel in Israel.

Professor Friedmann was one of those jurists who vehemently opposed the appointment of Beinisch as chief justice, repeatedly declaring his position that she is not competent or qualified to serve on the Supreme Court.

Beinisch had personally led an earlier successful campaign against the appointment of Professor Nili Cohen as a Supreme Court judge. Friedmann was the country’s leading promoter of Cohen for the post and accused Beinisch of blocking the appointment for petty personal reasons. “It appears the justices are not immune to the possibility of misusing power, as the developments in the process of appointing judges has proven,” he wrote.

All judges in Israel are appointed by a Judicial Selection Committee, which is currently made up of three Supreme Court justices, two ministers (including the minister of justice), two Knesset members, and two members of the Israel Bar Association. Once a judge is appointed, it is all but impossible to get him or her dismissed. Dismissals can take place when the chief justice leads the campaign against a judge – and not always then.

In reality, the committee usually rubber stamps what the Supreme Court justices, who dominate it, want. Hence, appointment of judges in Israel effectively consists of unelected judges dictating which other unelected judges will sit on the bench.

Under Friedmann’s proposals, the Judicial Selection Committee will be revamped. Only a single sitting judge will be a member. The others will be representatives of the public and the voters, and they will be in a position to flex their muscles against judicial abuse.

And the Israeli Left is simply hysterical about that. Israel’s leftist Haaretz has been overflowing with outraged articles opposing Friedmann. One Haaretz writer compared the appointment of Friedmann to a hypothetical appointment of convicted traitor Tali Fahima as head of the Shin Bet intelligence service. (The comparison is amusing since Haaretz has long served as cheerleader for Fahima and would probably support her appointment as head of the Shin Bet if it were to take place.)

Meanwhile, the leftist apparatchik and godmother of the Oslo debacle, Yossi Beilin, had a public fit when he heard the news of Friedmann’s appointment. Far-left Meretz Knesset member and Peace Now leader Avshalom Vilan raged in the press at the fact that an academic, not a political hack, was being appointed – someone the Left would have difficult in bullying into political compliance.

A retired Supreme Court Justice and advocate of judicial activism, Mishael Cheshin, openly threatened Professor Friedmann with violence, promising to “cut off the arm of anyone who raises a hand against the court.”

The Israeli law enforcement system has long been little more than the occupied territory of the Israeli Left. The attorney general does little to hide his political agenda when he makes decisions about investigations and indictments.

Friedmann’s appointment upsets this cozy undemocratic arrangement and threatens to strip the Left of its unelected de facto domination by democratizing Israel’s legal system. And that’s the first piece of really good news in Israel in quite a while.

Steven Plaut, a frequent contributor to The Jewish Press, is a professor at Haifa University. His book “The Scout” is available at Amazon.com. He can be contacted at stevenplaut@yahoo.com.