William Mehlman Jerusalem – Daniel Friedmann has planted his muddy, plebeian boots on Israel’s third rail-–the sanctum sanctorum otherwise known as the “High Court of Justice.” That Israel’s intrepid Minister of Justice has thus far avoided the fate of Nadav and Avihu-–the High Priest Aaron’s sons, lightning-bolted for bringing “strange fire” into the Tabernacle-–is as much a token of growing public uneasiness over the court’s relentless encroachment on the state’s legislative, executive and even military turf as it is of the thick soled constitutional insulation underlying Friedmann’s crusade against the court’s uncaged judicial activism. Standing on this edifice, Friedmann has thrown the gauntlet at the feet of Aharon Barak, whose 11-year (1996-2006) reign over the “Supreme Court,” as it’s more commonly referred to, transformed it from a relatively moderate, occasionally useful adjudicator of disputes between Israel’s private and governmental sectors into a judicial wrecking ball. His legacy is a court that has delivered Israel’s law enforcement system as “occupied territory” into the hands of the far left, a court that former U.S. Solicitor General Robert Bork has described as “the greatest threat to Israeli democracy… the worst court in the Western world.”

Friedmann, whom Barak condescendingly refers to as “Danny,” must have known that the former Supreme Court president would break the silence on court matters he’d imposed on himself since his retirement to pick up the gauntlet. Though he has crossed swords with current Supreme Court President Dorit Beinisch, Barak’s alter ego, Friedmann knows full well that it is Barak’s ideological stranglehold on the Court he must break if he is ever to put the brakes to its runaway powers. That ideology can be summed in the single word that embodies and anchors Aharon Barak’s judicial mindset – “justiciability.”

“If you ask me, I think everything is justiciable,” Barak averred in a remarkable one-on-one with Ari Shavit of Ha’aretz. “Because the implication of non-justiciability is the breaching of the law. And who breaches the law? Not the weak, but the strong. Nonjusticiability means a black hole. It means that might makes right. It means that government does what it wants…All matters relating to the West Bank are justiciable. The military affairs in the territories are justiciable. Whether to turn off the power in Gaza is justiciable. If you took land from the Palestinians, that is justiciable. If you did not protect the Palestinians, that is justiciable.” Does the former Supreme Court president recognize any limits to justiciability? Not unless they originate with the very branch of government upon which such limits need to be imposed. “The boundaries of justiciability,” he asserts, “should be left to the judges.” Every attempt to enact legislation in this sphere is wrong. This issue cannot be legislated. Indeed, he adds, with a thrust of his justiciable rapier, “we must make it clear to the lawmakers that there are spheres in which they must avoid lawmaking.” There are apparently no such spheres applicable to Israel’s Supreme Court. From micro-intrusion into the security decisions of the IDF high command to broad brushed interference in the most mundane mechanics of civic life, judge-made law, masked as justiciable discovery, has ridden high in Israel ever since Aharon Barak was in the saddle.

Among its more notable manifestations are rulings that prevent judges from being removed by the legislature (only by other judges); that can declare “illegal” any government action deemed by the court to be “unreasonable;” that in the name of “human dignity” can compel the government to alleviate “homelessness” and “poverty;” that can countermand military orders, and that can direct the government to move security emplacements, including those established to thwart the entry of suicide bombers into Israel. “What Barak created out of whole cloth,” observes U.S. Appellate Court judge Richard Posner, one Barak’s fiercest critics, “was a degree of judicial [law-making] power undreamed of even by our most aggressive Supreme Court justices… One is reminded of Napoleon’s taking the crown out of the pope’s hands and putting it on his own head.” Undeterred by the absence of a written constitution, the Supreme Court has discovered lurking behind Israel’s “Basic Laws” (created by the Knesset, but unrepealable by the Knesset, according to the Supreme Court), a whole galaxy of constitutional penumbras, ranging from the ludicrous (a “constitutional” right to obtain one’s pork without “inconvenience”) to the outrageous ( the “right” of Israeli Arabs to marry Palestinians and bring them into Israel). In misappropriating the authority to decide whether welfare cuts are legal, the Barak Court established a “constitutional right” to a minimum income, the amount to be determined, naturally, by the Supreme Court. As exemplified in its 2006 overruling of the IDF’s judgment on the location of portions of Israel’s “separation fence,” the Court has now extended its “constitutional” reach into Israel’s security structure. “Barak once said that the Court has jurisdiction to judge the deployment of troops,” Bork observed. “This decision brings us closer to that.”

This entry was posted on Wednesday, June 11th, 2008 and is filed under news. You can leave a response.