Justice Minister Daniel Friedmann slammed Supreme Court justices on Monday, continuing yet another exchange of verbal barbs. Days after former Supreme Court President Aharon Barak accused Friedmann of "deliberately attempting to weaken the court and put a gun to its temple," Friedmann accused the court of hypocrisy. Supreme
Friedmann characterized the statements by former Justice Barak as "violent."
Court justices respect freedom of speech only as long as they remain immune from critique, according to Friedmann.
Friedmann characterized the statements by former Justice Barak as "violent." "Whoever challenges the line of the Supreme Court should expect personal attacks," he said, adding that such attacks take the place of addressing the issues he has raised in his proposals for court reform. "There is a consistent unwillingness to deal objectively with criticism," the Justice Minister claimed.
"Freedom of speech is protected until the moment one says something about the Supreme Court. Doesn't freedom of speech include that as well?" Friedmann called recent statements from current and former Supreme Court justices "delegitimization of criticism in unprecedented proportions. Just uttering criticism is 'anti-democratic,' or as they call it, 'a return to the third world.'"
Minister Friedmann made his comments at a festive evening organized by the Tel Aviv branch of the Israel Bar Association in honor of the upcoming Passover holiday. Delivering his remarks at the end of the evening, Friedmann quipped, "Until I heard my colleagues' comments, I didn't realize how moderate I am."
War of Words Continues Tuesday
Continuing the crossfire in Tuesday's newspapers, former Supreme Court Justice Barak was quoted as saying that Friedmann's court reforms are "the beginning of the end" for Israeli democracy. The Justice Minister is precipitating a 'tsunami' that is aimed as wiping out the justice system," Barak charged.
"Court appointments will become politicized, and the court will be limited in its ability to guarantee ethics and civil rights," Barak was quoted as saying. "It will be a castrated court. A midget court."
As for the Justice Minister himself, Barak said he was not the man for the job. "Therefore," he said cryptically, the rest of the political leaders - from the prime minister to the head of the opposition - "have a historical responsibility."
As Barak explained, "Danny Friedmann will not change. He is an honest man banging his head into the wall. He is a crusader who will not stop for anything."
Friedmann's position reflects that of noted US Jurist and legal scholar Robert Bork who after extensive research on the Israeli court system wrote that the Israeli Supreme Court has usurped more power to itself than any other in the western world. Bork called the Israeli supreme court "the greatest threat to Israeli democracy."
In Bork's review of Aharon Barak's book "The Judge in a Democracy," Bork cites specific cases in which Israel's Supreme Court, in his opinion, overstepped its bounds in accordance with the activist theories of Barak.
Bork writes:
"The actual decisions of the court demonstrate what Barak’s free-wheeling approach means in practice. The results range from ludicrous to officious to dangerous. To wit:
"1. The Knesset legislated local authority to limit or forbid the sale of pork. But President Barak and eight other justices held that there is a constitutional right not only to eat pork, but also to obtain one’s pork without inconvenience. Thus, in an impressive show of disregard for a piece of Knesset legislation, the court ruled that a locality wishing to ban the sale of pork must examine the availability of stores selling pork nearby, the means of transportation to those stores, and the practicability of using that transportation. Only, they concluded, if this examination reveals that the alternatives are feasible may pork sales indeed be banned in a given locality.
"2. The court decided that it has the authority to rule on whether welfare cuts are constitutional, effectively creating a constitutional right to a minimum income to be determined by the court -- a decision that flew in the face of the manifest will of the Knesset that no such right does or should exist. Thus has the court assumed the power to tell the elected branches on what they must spend, and how much, establishing the principle that, in fact, it is judges, and not legislators, who ultimately control Israel’s budget.
"3. A majority of the court held that the government cannot bar immigration from hostile areas during wartime because doing so would infringe on the right of Israeli Arabs to marry Palestinians and to bring them into Israel, rather than living elsewhere. Although the court upheld, six to five, the Knesset law banning Palestinians below a certain age from immigrating on account of their being a security risk; one judge declared explicitly that he had sided with the majority only because the law was due to expire shortly anyway, and he felt it sufficient to warn the Knesset that, barring substantial changes, the court would overturn the law next time. This, again, despite the Knesset’s explicit rejection of a citizen’s right to marry whomever he or she pleases. Thus is national security -- even in wartime -- superseded by an invented personal right that the legislature had rejected.
"4. While upholding the government’s authority to build a separation fence, the court nevertheless overruled the army’s judgment on the purely military issue of the location of parts of the fence, because of disagreement about the minimally adequate level of security. Barak once said that the court has jurisdiction to judge the deployment of troops in wartime; this decision brings it closer to that.
"5. The court ruled that a government official could be discharged or denied promotion on the basis of what he said during a published interview. Indeed, the court itself proposed to investigate whether the official’s words rendered him unfit for appointment. Without any legislative mandate or guidance -- and in stunning defiance of the fundamental democratic principle of free speech -- the court thus determined to make the law as to an appointee’s moral character. This unprecedented role as censor is simply unknown in other democracies.
"6. Faced with a possible reform of immigration policy by the Knesset’s adoption of a new Basic Law on the subject, President Barak wrote in an opinion that the court had the authority to invalidate a Basic Law if the justices thought it contrary to Israel’s Jewish and democratic character.
"In a word, Barak’s court can turn ordinary legislation into a constitution, force it on the nation, and then announce that it can prevent any democratic amendment. In this, Barak surely establishes a world record for judicial hubris. As these and other cases demonstrate, it would appear that Barak is unconcerned that the rule of law -- which he praises as part of “substantive democracy” -- is in fact being replaced by the rule of judges, a trend to which he himself is the major contributor.