Israel’s Supreme Court under Pressure

The Supreme Court of Israel is a unique judicial body. It is the highest court in Israel – the last resort for appeals in a three-tiered judicial system. However, sitting as a High Court of Justice it is also the court of first and last instance in petitions for judicial review of administrative action. And it is mainly in this role that the Court has become a controversial body that has caused resentment among right-wing, conservative and orthodox religious elements in the country.

Since independence in 1948 the Supreme Court has played a major role in establishing a jurisprudence of human rights and rule of law. Despite the lack of a formal constitution or bill of rights the Court held that as a democratic state fundamental human rights are part of Israel’s legal order. Legislation must be interpreted in order to give effect to such rights, administrative authorities may not restrict them without clear statutory power and in wielding discretion they must give them adequate weight.

While being protective of individual rights, until the late seventies the Court adopted a fairly narrow view of its role. By adopting fairly stringent demands for standing of petitioners, and stressing that its function was to decide concrete disputes rather than to ensure legality of all government action, the Court generally steered clear of controversial political issues.

In the late seventies the Court began relaxing the demands of standing, ruling eventually that in cases concerning matters of constitutional importance, if no specific individual had standing, anyone had standing. It also qualified the notion that certain essentially political issues are non-justiciable. Most significantly, it held that all use of governmental powers is subject to judicial review on the grounds of unreasonableness. The most extreme example of the Court’s new approach was a 1993 judgment in which it held that the prime minister was bound to fire a cabinet minister who was to be charged with corruption as failure to do so was unreasonable.

Furthermore, after passage of two basic laws on human rights in 1992, the Court ruled that it had the power to review the constitutionality of parliamentary legislation, even though this power was not expressly recognized in those basic laws.

Possibly the most controversial part of the Court’s jurisprudence relates to actions of the military in the Occupied Territories. And here there are two opposing conceptions of the Court’s role. Right wing politicians, West Bank settlers and some security personnel claim that the Court has gone too far in protecting Palestinians against decisions of the military. Some academics and lawyers of human rights NGOs who litigate cases relating to the Occupied Territories regard the Court as an institution whose main function is to provide legitimization for governmental action. They criticize the infrequency of the Court’s willingness to interfere in actions that are incompatible with international law, especially the Court’s persistent refusal to examine the legality of Israeli settlements, policies and actions, such as expropriation of land, that support the settlement project.

Alongside the Supreme Court, the state prosecution, at the head of which stands the Attorney General, a non-political and independent appointee, has been under constant attack following investigations and prosecution of leading politicians for crimes of corruption, and in some cases, sexual harassment. In two cases incumbent Ministers of Justice had to stand down after the Attorney General decided to prosecute them. The latest case involved the Minister of Justice in Prime Minister Olmert’s cabinet, who was forced to resign after he was indicted and subsequently convicted on a charge of an indecent act (giving a “French kiss” to a young woman soldier while waiting for a cabinet meeting to discuss crucial issues during the 2006 war in Lebanon).

Following resignation of the said Minister of Justice, the Prime Minister made a surprise appointment: Daniel Friedmann, a leading Israeli legal academic whose specialty is private law. Friedmann had never taken an active part in politics but had been writing articles in Israel’s most popular daily, Yediot, in which he had been attacking the Supreme Court. His most vicious attacks followed the refusal of judges on the Court to support the appointment to the Court of Friedmann’s closest academic associate, a woman with whom he had written a leading textbook on contracts. A few days before his appointment was announced, Friedmann had also published a scathing attack on the magistrate court’s conviction of the outgoing Minister of Justice.

Once in office, Friedmann embarked on what can only be described as a crusade against the Supreme Court and its president, Justice Dorit Beinisch, who had been the main opponent to the appointment of his associate to the Court. Plugging in to the resentment towards the Court in right wing and religious political circles, Friedmann stated he would support legislation to change the composition of the committee for the appointment of judges, so as to give more weight to politicians, restrict the power of the court to interfere in security matters, and undo some of the decisions of the Court on constitutional issues. In a short time, he managed to exacerbate the hostile attitude toward the Court that existed amongst some elements of the Israeli population.

It must be admitted that not all of Friedmann’s criticisms of the Court are without foundation. However, even many of those (the present writer included) who agree with some of his criticisms, are convinced that in his present crusade, Friedmann is causing untold damage to the institution in Israel that has contributed more than any other to upholding the rule of law and promoting protection of individual rights.

Furthermore, in some of his substantive proposals, Friedmann has placed himself clearly in the chauvinistic camp, exhibiting a contempt for international law and liberal legal values. While Israeli law grants immunity from liability in tort to damage caused during a ‘war act’, the Knesset enacted legislation widening this immunity so as to deny damages for death or wounding by Israel’s Defence Forces of any Palestinian resident of the West Bank or Gaza since the second Intifada began in 2000. Three years ago, a unanimous bench of nine Supreme Court judges held that this legislation was unconstitutional. However, Friedmann has initiated legislation that would effectively undo the Court’s ruling. As a lawyer who claims to be committed to rule of law and human rights, he apparently regards it as perfectly acceptable that Israeli forces can have control over the lives of Palestinians, but no responsibility for actions of negligence or worse. If Friedmann is successful in having the legislation enacted ( it has already passed first reading), Israel will probably find itself being sued in foreign courts.

Friedmann’s crusade has alarmed many of Israel’s retired justices. Foremost amongst these is Aharon Barak, Israel’s most prominent jurist, who retired as president of the Supreme Court of Israel in September 2006. In a series of interviews Barak stated that Friedmann is endangering rule of law and the commitment to democracy in Israel.

The battle continues. With the days of Olmert’s government numbered many hope that Friedmann will soon have to return to his academic pursuits.