Tuesday, August 21, 2007
Is “Friedmannism” Good for the Jews?
Prof. Daniel Friedmann, the conservative Israeli Attorney General, has been waging a war against the Israeli Supreme Court, which he considers too leftist, elitist, and activist. In the US he would probably be considered a “strict constructionist” on constitutional matters, but since Israel lacks a constitution (and hence is not a constitutional democracy), he simply should be labeled, "anti-judiciary." He certainly disagrees with the philosophy of ha-qol shafit, “Everything is subject to judicial review,” which was the philosophy of the former Supreme Court Chief, Aharon Barak, and, apparently, his successor, Dorit Beinisch. Friedmann would curtail the power of the judiciary and put it in its place. Of course, that is not how he presents it. On the contrary, he feels that his “reforms” will help restore confidence in a judicial system that has suffered because of its importune interference in governmental and parliamentary decisions -- especially through the many appeals to the High Court of Justice (one of the functions played by the Supreme Court.) Friedmann is particularly incensed that the High Court interfered with the Intifada Law passed by the Knesset, which limited the ability of Palestinian civilians to sue Israel for damages caused by the IDF, and forced the government to change the route of the so-called Security Fence. But do not take my word for it -- the best introduction to “Friedmannism” is the long Haaretz interview that Friedmann gave to Orit Shohat and Zev Segal last Shabbat . Needless to say, liberals are up in arms, and Haaretz has been weighing into Friedmann almost daily – this time, the publisher Amos Schocken, no less, has written a nasty op-ed. This follows on the tail of an open letter against Friedmann signed by twenty-two law professors protesting his “reforms.” In the absence of a constitution in Israel, and a tradition of protecting individual rights, there is a real danger that, under the right circumstances, a Friedmann can push forth “reforms” that would, for example, sharply limit appeals to the High Court of Justice. Anything that the Knesset or the government would define as a security issue would not be subject to judicial appeal. Is Friedmannism good for the Jews? In other words, does it advance the cause of justice and morality in Israel and in the world, the cause of decent people everywhere? (That’s how I understand the question, “Is it good for the Jews?”) The answer, surprisingly, is not clear – even for liberals. On the one hand, the Israeli judiciary, especially the Supreme Court, has often been the only voice for law, justice and morality in this country. It has saved Israel from violating people’s rights more than once. And by the way, I am not merely talking about the rights of the Palestinians. On several occasions the High Court interfered against the government to protect the violation of the rights of the Gazan settlers from an unfair compensation deal. In Israel, where democracy is misunderstood as “majoritarianism,” the Supreme Court is vital in safeguarding civil rights. On the other hand, as has been convincingly showed by David Kramer in The Justice of Occupation and by Norman Finkelstein in Beyond Chutzpah, the High Court of Justice has almost always deferred to the government’s “security arguments,” even when those arguments mask immoral and rapacious actions, such as the current land grab on the West Bank, under the rubric of the “security fence” (a subject for an upcoming post.) Yes, Palestinians indeed have the right to appeal to the Israeli High Court of Justice – and that right is trumpeted throughout the world by Israel and its defenders, such as Alan Dershowitz, as an example of its enlightened policies. Yet those appeals are by and large rejected by the High Court, which has a pretty awful record on the rights of the Palestinians under occupation (only slightly better for Israeli Arabs.) Once again, there is a prima facie appearance of impartiality and fairness, but in reality, the High Court serves well the interest of the state, and the interest of the Occupation.. So, wouldn’t it be better if Daniel Friedmann removed the fig leaf of Israeli democracy, by curtailing the authority of the judiciary, and thereby exposing Israel’s “nakedness” for the world to see? I think not. I don’t place much hope in the world intervening in Israel to protect the rights of minorities, Palestinian and otherwise – even if things get much worse here. For all its faults, the Israeli Supreme Court can on occasion do the right thing. If one Palestinian village or family can sleep a little easier at night because of that, then, under the current situation, it would be better to support the judiciary, and especially the Supreme Court, against Friedmannism. -- even if it allows us Israelis to sleep a little easier each night, which we don't deserve. Who knows? Maybe with a better night’s rest, we may wake up and do the right thing, ourselves. The Supreme Court certainly won’t do it for us.