(IsraelNN.com) Justice Minister Daniel Friedmann has arguably made more headlines per week than any Justice Minister in recent history.  The controversies surrounding him largely concern his public disagreements with Supreme Court Chief Justice Dorit Beinisch and Attorney General Menachem Mazuz.  He has called for far-reaching changes in the judicial system, including self-imposed or other cutbacks on the Supreme Court's powers, changes in the way judges are appointed, and the slicing up of the Attorney-General's authorities. 

By the by, Minister Friedmann has also aroused suspicion that his appointment was based on his oft-stated position that not every hint of corruption by political figures need be investigated. He was appointed a half-year ago by Prime Minister Ehud Olmert, who is the subject of several police investigations. 

In an interview this past weekend with Orit Shochat and Ze'ev Segal of the daily Haaretz, Minister Friedmann explains his above positions, and goes into the details of his peeves against the Supreme Court's judicial hyper-activism.  For instance, he said, he is against the Court's intervention regarding the alleged crime of political appointments. "There are other public mechanisms that work better than we realize, and they must [do the work]," he said, noting several instances in which public opinion alone forced public figures to resign or withdraw their candidacies for high office.

"Perhaps this was because they knew that the Court might intervene," the Haaretz reporters retorted.  "What about the case of Yossi Ginosar, who [never should have been appointed to represent the government in talks with the Palestinian Authority] - yet only the Court's intervention prevented it from happening?
"If the Chief of Staff fails, should the Supreme Court then run the army in his stead?"

"The fact that a body did not work perfectly in one case does not mean that another body must replace it," Friedmann countered sharply.  "If the Chief of Staff fails, should the Supreme Court then run the army in his stead?"

When the interviewers noted that the Supreme Court "throws the petitioners out" most of the time, Friedmann was adamant: "No, it does not throw them out.  It hears the cases even when it ultimately decides not to intervene.  It expresses its opinion."

Friedmann explained that as a result of one case of positive intervention, even if it was necessary, "the door was thus opened, and hundreds more appointments will now be brought for it to decide on...  Sometimes, a potential appointee has a small stain, and the Supreme Court might not have even disqualified him because of it.  But the appointing minister will say to himself in advance, 'My candidate is excellent, but if I appoint him, some enemy of his from 20 years ago will jump and file a petition against him in the Supreme Court, and then I'll be stuck for who knows how many months.'  That's what happens when a body takes upon itself [extra] authority. The result is not good."

Minister Friedmann named another case of undesirable Supreme Court intervention: "The anti-Kassam reinforcement of schools around Gaza... Three Supreme Court judges, without checking a realistic timetable for reinforcement, without checking the budget, without checking how long it takes to issue a tender, decided that the government must reinforce the schools by September 1. Is that serious? ... Why doesn’t the Court just order the government to stop the Kassams altogether?"

Why doesn’t the Court just order the government to stop the Kassams altogether?"
Friedmann further bemoaned High Court intervention in disqualifying the army's "neighbor procedure" despite the fact that the Attorney General opined that it was reasonable. The "neighbor procedure" is/was utilized in situations in which IDF troops wish to arrest a wanted terrorist in a house, but are unable use loudspeakers nor a phone, and know that if they approach the house, they will be fired at. They therefore they ask an Arab neighbor or family member to knock on the door and inform the terrorist that he has the option of surrendering. Army sources say that much can be learned from that initial contact. Despite this, in October 2005, a three-justice panel headed by then-Chief Justice Aharon Barak ruled unanimously that the procedure must not be used, even if the neighbor agrees to take part. The judges agreed with the claim made by a PA civil rights organization that the neighbor's consent to take part is the result of his fear of the army.

Don't Stop Partition; Pay Instead!
The interviewers asked if Friedmann opposes Supreme Court intervention when Arabs claim the partition walll/fence is built through their property.  "This is, after all, a violation of basic human rights," they declared.

"Even in the bombing of the nuclear reactor in Iraq," Friedmann responded, "human rights were harmed - but this doesn't mean that the Supreme Court should involve itself in the government's decision.  Regarding the partition, monetary compensation should have been considered rather than changing the fence/wall's route... We have to recognize that sometimes the relief that can be offered is only monetary; stopping the work on the fence can harm national security."

Marriages Between Arabs of Israel and PA are a National-Scale Problem
The Justice Minister was even more adamantly against the Court's unwelcome intervention regarding reunification of Arab families. "The Supreme Court should not have overruled the Knesset law that limited this phenomenon," he said. "This was a Knesset law that concerned policy, security, and the character of the country.  A few years ago, it never would have been conceivable that the Court would intervene...  It is a national problem, not one of a specific person whose rights were harmed.  We're talking about tremendous numbers of Israeli-Arabs who marry residents of the [PA-controlled] territories - marriages with a nation that is waging war against us.  It's not a specific person who may be hostile to the State, but rather hundreds of thousands of people who were educated to hate and oppose us. This is a national-scale problem..."

Another example of a law in which the Supreme Court should not have intervened, Friedmann feels, was the compensation aspects of the Disengagement.  He expressed amazement that one judge even wrote that the whole withdrawal itself should not have happened.  "This is uncalled-for intervention," Friedmann said, as "the law was legislated in the Knesset." 

Friedmann said his goal is to "strengthen the Supreme Court and its legitimacy," in light of the fact that it both its public support and its status in the Knesset are eroded.  He noted that the Knesset "recently voted by a landslide, 49-5, to limit judges' terms [in opposition to the judicial system's stance]; this anti-Court atmosphere in the Knesset is worrisome."

Supreme Court is not Democratic
"There might be those who don't care that the Supreme Court assumes more and more authorities and intervenes in everything," the Minister said, "but I say there is a problem when a body that was not democratically elected, such as the Supreme Court, gets into areas in which a democratically-elected body such as the Knesset must decide.  The question is if we want our fundamental decisions made by a democratic body or not."

He summed up this issue as follows: "When the Supreme Court strays from the national consensus regarding civil rights, that's OK. But when it strays from the national consensus regarding its very legitimacy to rule on an issue, there's a problem. That is, when it does things that the Knesset says it did not authorize it to do [in the original law defining the Court's authority], and part of the public agrees."

Judges Appoint Themselves
Friedmann said he plans to propose a new system of choosing judges "such that there will be more variety in their approaches... They all come from the same milieu...  There is no other judicial system in the world in which a court that can repeal laws, the judges appoint themselves."

Asked if he really believes that with only three representatives on the nine-member Committee for the Appointment of Judges, the judges appoint themselves, the Minister replied, "The Supreme Court judges have a tremendous weight in that committee - not 100%, but tremendous. Even though they are only three out of nine, the others in the committee are not unified and the judges are unified. It's like a public body where one person has a bloc of a third of the votes."

Another proposal he wishes to make is that the Knesset will be able to re-legislate a law that was struck down by the Supreme Court if it has a majority of 61, or even possibly 65 MKs.  He said such changes must not be made hastily, "but rather with careful consideration and comprehensive public debate.  We must redefine the authorities of the Supreme Court. If it doesn't happen by consensus, it will happen without consensus. The Knesset Members will feel free to change the rules the way they want to, and the results won't be good."

Budgetary Priorities and Unreasonable Decisions
The Justice Minister wants clear guidelines as to when and in what issues the Supreme Court may intervene and when not.  For instance, budgetary priorities are not justiciable, he feels: "The Court [must] not be able to tell the State to give more money to roads and less to education, or vice versa. Even if I want more money for education, I don't want the Supreme Court to make those decisions... [Furthermore,] the Supreme Court should be limited in its ability to deem a government decision 'unreasonable.'  I'm not sure yet how to make these changes, but I'm sure the Knesset will not do it in an irresponsible manner."

Too many appeals find their way to the Supreme Court, the Justice Minister believes: "The Supreme Court has blocked itself up with appeals - about a third of its workload, I believe. That's a lot; it harms its work, and cannot continue.  Everyone tries his luck there, thinking that maybe the Court will intervene.  It's not good for the Court itself."