Monday, February 18, 2008

Beinisch on Friedmann

I know that nobody other than me really cares about Israeli judicial politics, but sometimes the Supreme Court just bugs me so much that I have to rant about it somewhere, even though I am perfectly aware that a decent constitutional lawyer would probably make mincemeat out of my feeble rage. The following is a quote from a JPost article about Chief Justice Beinisch:

She also criticized his bill to establish a search committee to choose the presidents and deputy presidents of the magistrate's and district courts instead of the current arrangement where the appointments are made by a joint decision of the justice minister and the president of the Supreme Court.

"This is [part of] a program to take away the prerogatives of the president," said Beinisch.

"Friedmann says this is because the Supreme Court president is not responsible for his decisions because he is not elected by the public. This is an incorrect understanding of the judicial system. The whole court structure is such that it is not made up of elected officials. Trying to weaken it because it is not responsible to the public goes to the very roots of the judicial tradition in Israel. There has been a constitutional understanding since the establishment of the state.

"Every justice minister knew who was in charge of the judicial system."

Beinisch added, "[Friedmann] has plans, that is true. It is part of his world view. I hope the Knesset will understand the ramifications of these plans and act accordingly. If the Knesset approves his legislation, I will hand my concern over to every Israeli citizen."

Beinisch said she was not sure the changes Friedmann wanted to made were constitutional.

What principally annoys me about all of the above is the way that Beinisch pretends that the current system is somehow divinely or even nationally mandated. The Constitution of which she spoke was not reached through any special process nor based on any special majority. Bits of it demand that any amendments require 60 votes (i.e. the majority of the members of Knesset and not simply of those voting.) That's it. There was never any intention for it to be anything beyond that. Whether the history of Israel has always supported apolitical appointments is not really clear. The reason that there was never any real clear constitution on any subject at all was because nobody ever agreed on anything.

And the committee for appointing Supreme Court justices is full of political figures. In fact, the special apolitical nature of court appointments is largely caused by politics: The members of the court come to the appointment committee as a bloc, while the members of Knesset and the government are drawn from the Coalition and the Opposition, which means they're at each other's throats. So it's not really at all clear that the judicial self-appointment was ever what was intended.

But beyond that, Beinisch refused to address the question of whether the measure is a good idea (at least, not in this article. I can't pretend to be an expert on her opinions.) She hides behind the current legal situation as though it were the gospel, which is particularly ironic coming from one of the most activist courts out there. The fact is, she is loudly and angrily pointing out that the proposed reforms are, in fact, different than the existing situation- that Friedmann is using these reform to change things. Gasp.

Particularly interesting is the fact that in the same article Beinisch decries the fact that the court is dependent on the Justice Ministry for budget and is involved in senior court appointments. Somehow, this legal (and possibly constitutional. I don't know which laws govern the question) arrangement is not part of her hallowed status quo, not an expression of the basic tenets of the Israeli legal system. I guess that honor only goes to the bits of it that promise absolute judicial freedom, not the bits that might aim at some clumsy balance of power.


Yoni said...

I find this interesting. I don't know what to say about it because I all I know about the situation is what you've said in your posts, but I find it at least theoretcialy interesting (if I knew more about the particulars of the subject).

Larry Lennhoff said...

I've been following the Israeli Supreme Court since at least The Year of Ruling Dangerously if not before.

What I find so ironic is that the problems of the Israeli Supreme Court are so similar to the problems of the Moetzes Gedolei HaTorah. This shouldn't be a surprise - both organizations are self selecting elites who choose their own successors. So both organizations are unable to respond to the changing needs of their members - any potential leaders who deviate too far from the old consensus are never given any power.

Tobie said...

Larry- I think that the chief and ironic difference is that the Moetzes Gedolei HaTorah is chained to strict precedent and the most narrow of its interpretations, which the Court is running wild through the fields of creative and purpose-driven interpretations. And both think, no doubt, that the other is a moronic despot. Sigh.

Yoni said...


I think what we need is a touble hanging.

that aught to solve the problems.