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Tuesday, February 27, 2007

Fighting the rule of law in Israel

The law Estherina Tartman advocates will basically take away the right of the Supreme Court to declare laws unsconstitutional. The prospect of Estherina Tartman in control of constitutional law should make anyone think twice. In the USA, conservatives tried to undermine the supreme court in the same way and for the same reasons- rulings they didn't like about separation of church and state, abortion and integration. Some may be happy about this law, but what happens in 20 years when a knesset majority rules against the right?

Ironically, it was Menachem Begin who championed the rule of the independent judiciary, as this article points out.

Last update - 17:21 27/02/2007

Top jurist tells Justice Minister: Retract plan to stem court power

By Yossi Verter, Yuval Yoaz and Gideon Alon, Haaretz Correspondents

Professor Uriel Procaccia, one of Israel's senior jurists, on Tuesday called on Justice Minister Daniel Friedmann to backtrack on his initiative to limit the High Court of Justice's constitutional authority.

Procaccia, who heads the masters of law program at Herzliya's Interdisciplinary Center, wrote in a statement released Tuesday that, "Human rights advocates in Israel must join forces against Friedmann's initiative to curtail the High Court of Justice's constitutional authority."

Procaccia added that, "The American Congress does not feel undermined by the courts' authority to proclaim a law passed in Congress unconstitutional. This is the law in many enlightened countries throughout the world."

"MK Esterina Tartman has told the nation she thinks otherwise," Procaccia wrote. "This is her right, but human rights advocates disagree with Tartman, and I call on the new justice minister not to distance himself from their ranks. Human rights in Israel are at stake, and without them our democracy is liable be emptied of some of its most important substance."

Procaccia ended the letter with a call on Friedmann to "carefully consider your steps before raising a hand to the valuable fruits of our legal system."

Peretz: Labor won't let Friedmann limit Supreme Court's authority to overturn laws
Labor Chairman Amir Peretz on Monday told Friedmann that his party would oppose efforts to curtail the constitutional authority of the Supreme Court. The two met in the Knesset.

According to sources, Friedmann's declared intention to curb the role of the Supreme Court in constitutional matters contravenes the government's official guidelines.

Attorney General Menachem Mazuz has already expressed his opposition to Friedmann's initiative, and Peretz said he would back him.

Senior Labor officials said on Monday that Peretz may initiate a serious crisis in the coalition over Friedmann's initiative, because this may serve him in rallying support during the party's primaries in May by embarrassing Prime Minister Ehud Olmert.

Peretz may take advantage of this situation to pull Labor out of the coalition and surrender the Defense Ministry, a portfolio that has burdened him in the internal party struggle for primacy against challengers Ehud Barak and Ami Ayalon.

Friedmann has sponsored two bills calling for restrictions on the Supreme Court and limiting the tenure of court presidents to seven years. Labor considers both steps to be contrary to the party's traditional views and to contravene the government's basic political guidelines.

In Labor they point to a "golden opportunity" for Peretz to restore his position in the party and raise the issue in a way that will rally the party around him.

According to article 40 in the government guidelines, signed by all coalition partners, "the government will preserve the esteemed position and breadth of functions and authorities of the Supreme Court and will oppose any change that may undermine it or the way judges are appointed in the judiciary."

This article was included in the basic guidelines following a Labor request during the coalition negotiations in April 2006.

Mazuz, who usually includes his comments on the agenda of the cabinet meetings, which are then distributed to all ministers prior to the meeting, added last week an unusual comment. Sunday's cabinet meeting commemorated the 15th anniversary of the death of Prime Minister Menachem Begin, and Mazuz opted to include passages from "the well-known speech of Begin from 1951."

Mazuz wrote that he felt the need to highlight from that speech elements regarding the appropriate role of the court in the State of Israel, which the attorney general said "had not lost in importance or relevance 55 years later."

"We should not be satisfied with the mere independence of the court but we must consider the supremacy of the court as our cause," Begin wrote. "The supremacy of the court will be expressed by the fact that independent judges will be given the authority to rule whether the laws are within the bounds of the Basic Law or contradict the rights of the citizens."

Warning against the dangers posed by a ruling majority that has no checks, Begin wrote that "only through the supremacy of the court, in other words, the determining of civil liberties as a basic law or a supreme law, and the granting to the body of justices the right to cancel the validity of a law that is in opposition the basic law and civil liberties" can freedom be safeguarded.

The Justice Ministry ha s refused to comment on Mazuz's statements.

"I like the quote," Minister of Social Affairs Isaac Herzog (Labor) said on Monday. "I am never opposed to the historic perspective of our past leaders, and it is particularly symbolic that these are statements made by Menachem Begin, who was identified as the leader of the right, and these quotations are of high moral value."

Other Labor ministers expressed their vociferous opposition to Friedmann's initiative during a meeting of the Knesset Constitution committee on Sunday.

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