I sat in the quiet reading room of the Israel Defence Forces archive, scrolling through 40-year-old documents from Moshe Dayan's files, and obsessed about justice minister Daniel Friedmann. I usually consider it unprofessional to let politicians get under my skin. But if Friedmann wins his war against the Israeli supreme court, he will not only destroy the best gift that Britain unintentionally bequeathed to Israeli democracy. He will also ruin my chances of access to more documents on how Dayan, the legendary one-eyed defence minister, shaped the occupation of the West Bank. My hopes lie entirely with the court.
I shouldn't take it personally. The saga that could legalistically be labelled Friedmann v Supreme Court of Israel is the most important news story from Israel to be largely ignored recently in the foreign press, which has focused, of course, on Israeli-Palestinian peace talks. If, improbably, negotiations succeed, they will end a 40-year occupation that many Israelis regard as an impossible burden. But Friedmann's fight with the court could determine how democratic the smaller Israel, within its pre-1967 borders, will be.
Friedmann, a 71-year-old law professor, was appointed justice minister last February, after Ehud Olmert's original appointee, Haim Ramon, was convicted of indecent behaviour for forcing a kiss on a woman soldier. Ramon is the prime minister's closest political crony. In an article published before his appointment, Friedmann had excoriated the prosecution and judges in Ramon's case. Previously, he had fulminated against the elevation of Justice Dorit Beinish to chief justice, and had unsuccessfully pushed for the appointment of another woman, Tel Aviv University professor Nili Cohen.
Friedmann is best known for bitterly opposing the court's judicial activism. In recent weeks, an intense public battle has raged over his intent to restrict what issues the supreme court can consider, to reduce its power to overturn laws, and to constrict access to the court.
Access is what makes Israel's supreme court unique. Under the rubric of the high court of justice, it hears petitions against actions of the state—and citizens petition it directly, skipping lower courts. That system, explains legal commentator Moshe Negbi, was created under the British mandatory rule of Palestine, when most lower-court judges were local Jews or Arabs. The highest court had only one Jew and one Arab; the other justices were British. Challenges to the mandatory government's actions went to the top court, which protected British interests.
When Israel became independent, it retained that structure, but from then on Israeli justices heard the challenges. In a country without a written constitution, the high court of justice evolved into the guardian of human rights. In a formative 1953 case, the high court of justice overturned a government order to shut two Communist party newspapers. The justices ruled that democracy required freedom of speech.
After 1967, the court accepted petitions from residents of the occupied territories against Israel's military government. In a key 1979 judgment, it blocked expropriation of private Palestinian land for an Israeli settlement. Since the 1980s, it has steadily opened its doors to petitioners not directly harmed by the government actions they are challenging. In the 1990s, the court asserted its power to overturn laws violating basic rights. That "constitutional revolution," spearheaded by former chief justice Aharon Barak, ended parliament's absolute sovereignty. In 2005, the court heard challenges to the Israeli pullout from the Gaza strip, the central policy of then prime minister Ariel Sharon. While it upheld the withdrawal, it overturned parts of the law on compensation to settlers, so increasing what they received.
Friedmann now wants a parliamentary restoration. A draft of legislation prepared by his ministry would require a two thirds majority of justices to annul a law, and would allow parliament to override the court. Barak is leading the fight against Friedmann, but arguably he helped create the fracas. As chief justice, he advocated an activist court, but often avoided controversial rulings. So he may have unnecessarily aroused opposition. Parliament is also at fault, as one Jerusalem attorney told me. If it were "more active" on human rights, he said, "there wouldn't be a need for the court to step in."
I filed my own petition to the court three years ago. It felt like a quasi-sacral event. Once in a man's life, he should make such a pilgrimage. Researching the origins of Israel's settlements in occupied territory, I had asked for access to the army's archive, and was rejected. The defence ministry's legal department cited the sensitivity of the material in the light of future negotiations. My view is that the evidence will nourish internal debate about what Israel's negotiating position should be.
The archive has since allowed me to look at some files, from which many documents have been removed. But true access depends on a ruling in my favour. If Friedmann prevails, official secrets will remain secret. I regard this as a small personal matter of the country's future.
