Thursday, March 5, 2009
Among the strange, but actually most revealing, preoccupations of politicians and journalists since the last election is Avigdor Lieberman's insistence that Olmert's Justice Minister, Professor Daniel Friedman, be reappointed. Ehud Barak (who anyway likes being Defense Minister) has said that Friedman represents a danger so dire that Labor should consider joining the Netanyahu government just to block him. Rumor has it that former Chief Justice Aharon Barak thinks so, too. (I heard the latter Barak on the radio a couple of days ago and he denied advising the former Barak; but he was clear that he shares a great fear that Friedman will stay on.)
Friedman is an Israel Prize winner and former Dean of the Tel-Aviv University Law School. He is an outspoken critic of "judicial activism," something like Professor Robert Bork in his heyday. But Friedman is most outspoken about reforming the process of appointing High Court judges (and Attorneys-General) to more closely resemble the American system, where a democratically elected executive has a decisive say in the nomination of candidates for judicial positions, which the legislature ratifies. Right now the Israeli judiciary remains something like a closed shop, where candidates for appointment by the President are reviewed by judicial and professional nominating committees. Law-makers participate but do not have true power over the process. Judges are promoted a little like the way Tel-Aviv University Law professors are tenured. This is hardly more "democratic" than Friedman. So why the fuss?
Lieberman is facing likely indictment by Attorney-General (in Israel, really the chief public prosecutor, or Solicitor-General) Manny Mazuz for laundering foreign donations through a phony consulting company run by his daughter. Some say Lieberman wants Friedman because he has somehow cut a deal with the Justice Minister to go easy on him. Friedman was indeed highly critical of the state's sexual assault case against former Justice Minister Haim Ramon; there is an appearance of conflict of interest. But the insinuation that Friedman would corrupt any criminal procedure borders on nonsense.
ACTUALLY, THE DANGER, is much worse than this, though to simply acknowledge the truth about it will be too embarrassing for all concerned, Israeli civil rights advocates included. Friedman speaks of judicial activism, but when American legal scholars use this phrase they are implicitly suggesting that judges should stick closely to what the framers of the Constitution and Bill of Rights intended, whatever that means; or interpret these hard-to-amend laws strictly, whatever that means. The "conservative" bent suggests the sacredness of fundamental rights that we dare not encroach upon.
But Israel has no constitution, and no Bill of Rights. It has a body of "Basic Laws," some of which require a super majority to be amended or repealed, mainly governing the way the government is organized. So Friedman's epithet, "activism," seems more than a little misplaced. Moreover, the newest fundamental law, the Law of Human Dignity and Liberty, which finally passed in 1994, is the closest thing Israel does have to a charter of human rights. It promises all Israelis "the right to privacy" and (touchingly) "intimacy." It can be amended by a simple majority, but otherwise no liberal-democrat would be embarrassed by it.
Here the plot thickens. Beginning, precisely, with Chief Justice Aharon Barak, the Israeli High Court has relied on the Law of Human Dignity to intervene in all manner of disputes in order to protect basic civil rights any American would recognize: everything from guaranteeing the support of special needs students in the educational system, to the overturning the Israel Land Administration's practice of honoring (in crucial cases) old Jewish National Fund regulations prohibiting sale of land to "non-Jews." Basically, the High Court has seemed to be saying: "We don't have real liberal-democracy here, where human rights are fundamentally guaranteed; but we do have a hitherto self-perpetuation community of liberal-democratic justices, enjoying (by means of law and precedent) the ability to remain self-perpetuating. We will interfere in the legal system, wherever human rights are potentially violated."
And there is a vaguely ethnic tension here beneath the surface. The old, better educated, mostly Ashkenazi establishment, the descendants of original Labor Zionist secularism, think of the High Court as a last bastion against the post-1948 immigrant know-nothings from North Africa and, later, Russia--people for whom Western democratic values are thin, because they have not been properly educated to civil society (or properly educated at all); people too easily swayed by nationalist demagogues, rabbinic godfathers, or sensational journalism; people who, like Lieberman, think democratic rights are a kind of "moral" window-dressing, perhaps necessary to impress the world, but also an effete luxury when solidarity in war is necessary. Think of the way the Upper East Side thinks about Joe the Plumber, and vice versa.
What Friedman represents is the end to self-perpetuation. He is himself a renegade from the old establishment. But if his "reforms" become law, as well they might with 65 Knesset votes, the government will gain control over judicial appointments, and, for example, Shas leaders will start bargaining over who gets to the High Court the way they bargain over orthodox school budgets. What civil protections Israel offers, to Arabs, to Jews, will be seriously compromised. Remember, it was the High Court that just recently overturned a Knesset committee vote to ban the Arab parties from running in the last election.
YESTERDAY, I RAN into my pal Danny Rubinstein, the veteran journalist, who pulled me into a criminal trial in a dilapidated East Jerusalem courthouse. The defendants were accused of forging antiques--you know, the famous case of a sarcophagus, purportedly belonging to the family of Jesus. I didn't know what to expect and went along just to humor him; he was born in Jerusalem and knows everybody, including one of the parties to the case, and two of the lawyers.
But as I sat there in the courtroom, listening to the careful ways evidence was introduced, listening to the respect with which experts were cross examined, listening to the rulings of a judge who followed every syllogism, and prohibited every party from interrupting the other's sentences, I felt a calm come over me a little like what you feel in the churches of Florence. Needless to say, this is not the way the Knesset sounds--or television panel shows, for that matter. The rule of law, I know, is not just the rule of judges. But it is also that.
Posted by Bernard Avishai at 5:48 AM