The following position paper on Justice Minister Daniel Friedmann's proposed reforms of the judicial system was submitted by Dr. Yitzhak Klein of the Israel Policy Center in November, 2007.
Justice Minister Friedman's
Proposals to Curb Judicial Prerogative
The Justice Minister, Daniel Friedman, has launched a number of legislative initiatives meant to limit the jurisdiction of the courts.
The most important, occasioned by the decision of the Attorney General Mr Menahem Mazuz, to limit the IDF's ability to cut off electricity to Gaza on human rights grounds, is a law that would prevent the courts—and in effect any legal authority, including Mr. Mazuz—to intervene in national security and foreign policy decisions. This law as written would also prevent interference in basic decisions of budgetary policy.
This law recognizes that decisions how or when to fight wars, or otherwise safeguard security of the country, are essentially political decisions made by the people's elected representatives. These are matters of life and death, and Friedman's proposal acknowledges that it is the prerogative of the people themselves, through their elected representatives, to decide how and whether to interpret, bend or ignore completely international laws and human rights standards in defending the existence of the state and the lives of its people. Such choices, while hard, are what democratic self-government are all about.
If Friedman's law were adopted, it would prevent the court's interference in decisions involving the power to wage war against civilians or fighters as a tool of policy, from Rabin's original decision to expel 400 Hamas activists in 1994, through decision about where to build the security defense, the decision about electricity to Gaza, and the impending decision whether to accept massive casualties in IDF assaults against fortified Hamas positions in Gaza or whether to bombard those positions to rubble before assault, while inflicting considerable civilian casualties upon the enemy.
Similarly, the decision whether and how much to tax the people for public purposes is a political decision, the essence of democracy. Friedman's law recognizes that to allow the courts to decide what the state is to spend money on and how much, is essentially to authorize taxation without representation. Both these issues, security and budgetary policy, touch the essence of democratic self-government and Friedman's position on them is absolutely correct in our view.
Friedman has another legislative initiative, to prevent the courts from reviewing decisions to indict people or to plea-bargain. This initiative is a whole different kettle of fish.
The power of indictment is not a political one. We do not give to politicians the right to indict or not to indict people. That would be most dangerous to our liberties. The power of the state to indict people and put them on trial is the most potent weapon the state possesses against the liberties of its own citizens. In free countries such decisions are placed in the hands of professionals, who are supposed to exercise their judgement free of political bias or constraints.
However the exercise of judgment by any state official in a matter touching on individual liberty must be subject to judicial review. Nobody whatsoever should be allowed to exercise the power of impugning the honesty of an individual or putting him through the ordeal of a trial without appropriate checks and balances, which the courts must provide. We believe this initiative by Minister Friedman is wrong.
To sum up, Minister Friedman is right to defend the right of the people to determine, through its elected representatives, fundamental questions about how society is to be governed and how it is to be defended. These are political questions in which the courts properly have no say. He is wrong in proposing to give any appointed official the right to make decisions about people's liberties without appropriate judicial checks and balances.
Dr Yitzhak Klein
Director
Israel Policy Center