08 August 2007 - Israeli judiciary under threat?

The Israeli judiciary is in the midst of its most serious crisis in recent memory. The trouble started when Daniel Friedman was appointed to head the justice ministry. As the Jerusalem Post reported at the time: “Friedman has been writing articles . . . for years that have been highly critical of the Supreme Court, the system of appointing justices and the appointment of Dorit Beinisch to head the court.”

Though Friedman’s appointment passed the Knesset by a wide margin, he was attacked from both right and left for his views, which are hostile to the activist role the court has played in recent years. In addition, many people have taken issue with his style of criticism, which has been described as unduly harsh. He also apparently has a history of clashes with High Court president Dorit Beinisch.

Friedman’s proposals for judicial reform have not mended fences. For example, he wants search committees, which would include politicians, to help appoint the presidents of the District Court and the Magistrates’ Courts. Currently, the Supreme Court and its president review these appointments. Beinisch and many of her colleagues view Friedman’s reforms as an assault on judicial independence.

The arguments have exploded into a bitter public spat that is probably having a negative effect on public perceptions of, and confidence in, the Israeli judiciary. Looking at the issue narrowly, Beinisch is correct that Friedman is flouting established Israeli legal traditions. A broader view, however—one that takes international comparisons into account—casts his reforms in a more positive light.

In the United States, whose legal system is the envy of the world, federal judges are only selected by politicians—namely, the President and the Senate. In many states, judges are politicians themselves, elected directly by the voters. In South Africa, judges are selected by a commission that includes judges and legal experts, as well as Members of Parliament from the ruling party and various opposition parties.

What Friedman’s critics are calling judicial independence might therefore be regarded instead as excessive judicial power. There is hardly an apex court in the democratic world that is as activist as the Israeli High Court of Justice has been in recent years. Essentially, it has created a tradition of constitutional law without a constitution—perhaps a necessary task, but one that tests the separation of powers.

The problem with giving Knesset members more say in the management of the judiciary, however, is that the Knesset itself has far-reaching authority that exceeds the international norm for democratic legislatures. It can, for example, fairly easily amend the Basic Laws that form a kind of quasi-constitution. Giving its members a role in judicial appointments might be replacing one arbitrary power with another.

There are, to be sure, pressures building in the Knesset to change the ideological posture of the High Court. Many on the right feel aggrieved by its many reformist interventions. There is an idea floating about—similar to current racial criticisms of the South African judiciary by the ANC—that the judiciary is the last bastion of the Ashkenazi elite, and that its integration can achieve social as well as political goals.

The response of the left has been one of near panic. One human rights activist told me today that she fears that if Friedman has its way, the last line of defense against “fascism” in the Knesset will fall. Most seem to share the belief that Friedman’s appointment was a deliberate attempt by a center-right government to undermine the human rights gains of the Barak and Beinsisch courts.

There is no end in sight to this dispute, and there is a real risk that it could become a constitutional crisis. Of course, Israel has no constitution—and that is precisely the problem. The judiciary has had to play an activist role because there have been few other ways to protect basic rights from the Knesset. But on some issues it has perhaps imposed its views over the will of the majority to an inappropriate extent.

There are perhaps two ways to resolve the conflict. Beinisch and Friedman might reach some kind of compromise; this is, apparently, what other justices are trying to arrange. There are ample precedents for such a deal, including the Harari compromise that postponed Israel’s constitution-writing process in the first place. The other possibility is to actually sit down and finally write a constitution.

I would back the second option, and perhaps it is time for a senior leader—such as new President Shimon Peres, who has achieved some distance from the fray—to call Israelis together to resolve all their outstanding political ambivalences. Alongside the issue of Arab rights and the confusion over the role of religion, the question of the future of the Israeli judiciary is a challenge to Israel’s democratic foundations.