Court in Session / Friedmann's man on high - Haaretz

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Thu., December 13, 2007 Tevet 4, 5768

Israel Time: 10:59 (EST+7)

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Court in Session / Friedmann's man on high

By Yuval Yoaz

Tags: judicial system, Israel

Justice Minister Daniel Friedmann still has not retreated from his intention to set areas that will be non-justiciable by the High Court of Justice, such as security and budgetary issues, or state prosecution decisions on indictments, closing cases or plea bargains. The minister asked his own staff, associates of Attorney General Menachem Mazuz and employees of the Consultation and Legislation Department to examine the option of settling the issue by means of legislation. However, even though he was told this cannot be done, he still has not given up on the idea.

Keeping the discussions of justiciability going is a calculated tactical step on Friedmann's part. In this sense, he quickly repaired a tactical error he made when he publicly declared he had changed his mind about limiting the public's right to petition the High Court. Leaving the subject as a threat hovering over the justices is likely to prove useful: Officials in his office say they hope that the very threat of legislation limiting justiciability will restrain the court.

In Israel, such balances of power - the threat of legislation as a tool to influence judges' behavior - is considered improper influence on judicial independence. In the United States, however, it is considered a reasonable, acceptable aspect of the balance of power between the branches of government, like the relationship between president Franklin D. Roosevelt and the Supreme Court justices during the New Deal. Roosevelt threatened to continually increase the number of Supreme Court justices and to weaken the serving justices' power, and his threat achieved its aim: The Supreme Court stopped overturning the laws that established the New Deal.

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Aside from legislation, there is only one way of limiting the High Court's areas of justiciability: leaving the matter to the justices themselves. That was the customary format until now: The court itself defines, by setting judicial precedents, the boundaries of its own justiciability.

However, this option does not leave the justice minister without influence on the process. But he can demonstrate his influence not by means of legislation, but by means of judicial appointments.

It would certainly be useful for High Court candidates to know that "judicial restraint" is considered a desirable trait. Friedmann wants to appoint judges who would change the conduct of the court from within by limiting themselves, without any need for legislation.

If this is, in fact, the goal of the justice minister, he will not have to start from scratch. Even today there are High Court justices who believe the areas of justiciability and the right to petition the court should be limited, and that the use of terms such as "reasonable" and "moderation" should be limited. The faction is headed by Justice Asher Grunis. Last Thursday Grunis proved - for anyone who had not yet understood - that he leaves all his competitors far behind in the battle for the title of most Friedmanesque justice. Grunis is one of the two majority justices, along with Ayala Procaccia, who decided to reject the petitions to block the reappointment of Haim Ramon to the government after his conviction for an indecent act. However, there is an ideological abyss separating the two justices' reasoning.

The question as to why Grunis decided now, of all times, to write a dissertation about why the use of the concept of "reasonable" should be limited apparently will remain unanswered. However, the difference of opinion among the case's three justices - Procaccia, Grunis and minority justice Edna Arbel, who thought that the petitions should be accepted and Ramon's appointment canceled - symbolizes the spirit of the times. At the least, it reveals the boundaries of the ideological struggle, which had been described as a battle between Friedmann and the High Court. It turns out that the boundary passes between the justices themselves. The battle between Friedmann and Dorit Beinisch is actually a battle within the High Court.

Grunis believes the High Court should refrain from intervening in Ramon's appointment, not only because it was a government decision, but mainly because the decision was confirmed by the Knesset. While the government is an executive "administrative authority" - true, the most senior one - the Knesset is an elected body, and therefore judicial review of its decisions should be even more limited.

From here, Grunis moves on to examine various types of Knesset decisions - legislation, decisions on internal parliamentary affairs and quasi-judicial decisions - and defines the extent of judicial intervention for each. Denouncing Knesset decisions for being unreasonable is problematic, since "the court has no special advantage or superior expertise on the subject of what is unreasonable," Grunis says.

Grunis goes on to criticize former Supreme Court president Aharon Barak, who expanded the use of the term reasonable to a "meta-norm," while "swallowing, like a man who cannot be satisfied, certain claims that were recognized in the past, such as the claim of an extraneous purpose and extraneous considerations." The result of this over-use is that if a justice is unhappy with the authority's decision, he concludes this was an unreasonable consideration, Grunis says.

"Occasionally in such cases, back-engineering is carried out," says Grunis. "The court examines the result and, through back-examination, enumerates the considerations it assumes were taken into account by the deciding body. If the final decision is not acceptable to the court, it will say a consideration received too much importance or was not taken into account.

"Therefore," the judge says, mocking his colleagues, "we have to take with a grain of salt the statement that the court does not substitute its own judgment for the judgment of the legally authorized authority."

The bottom line, he says, is that the decision to appoint Ramon clearly is political, and the court has no advantage over any other citizen in stating whether it is reasonable.

"We are obliged to separate our opinions as citizens from our thinking as judges. The considerations of the public are not necessarily identical to those of judges, and that is how it should be," he concludes.

Friedmann could not have put it any better. And incidentally, how ironic: If there is a judge who is being directly harmed by Friedmann's term as justice minister, it is Grunis. Friedmann is the one responsible for the fact that Grunis will not become president of the Supreme Court, thanks to legislation preventing a justice from being appointed court president if he or she were to serve for less than three years. Grunis was supposed to be appointed president after Beinisch for a period of two years and 11 months.

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