Ex-chief justice Barak: Override legislation ‘poison pill for every basic law’

President Rivlin said he agreed with Barak on a number of issues.

By
April 30, 2015 00:07
3 minute read.
Judges preside in court

Judges preside in court (Illustrative). (photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)

At a conference on Wednesday of Supreme Court presidents past and present hosted by President Reuven Rivlin at his residence, former chief justice Aharon Barak said that the proposed Knesset bill under discussion for overriding the High Court would be a “poison pill for every basic law.”

In other words, there would be nothing to keep a simple majority of the Knesset from politicizing the High Court and changing any law, including infringing on minorities’ basic freedoms, Barak implied.

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Rivlin agreed with Barak on a number of issues, such as that the Knesset should not interfere with the process of High Court appointments as some politicians wish to do, and showed him tremendous respect implying he was a greater scholar than Rivlin and calling him “my teacher, my Rabbi.”

However, Rivlin broke with Barak to some degree on a law providing for the Knesset to override High Court rulings.

Staking out what he said was a middle ground between Barak and some of the Knesset members who are most angry with what they view as High Court interference in Knesset authority, he suggested that the Knesset only be able to override the High Court with a special majority of 65 votes in tandem with a law formally recognizing the High Court as the state’s constitutional court.

In contrast, those more in opposition to the High Court wish to be able to override its decisions with a lower 61 vote majority, do not wish to recognize it as a constitutional court and wish to alter its membership.

Barak disagreed with this approach, saying that any isolated law called “an override law” in the absence of ratifying a new constitution “was not an override the High Court law, but an override democracy law.”

The former chief justice said he could make peace with such a law with a super majority of 70-80 Knesset members “as in other countries” if it was passed after a new constitution (which he pushed hard for) was ratified to replace Israel’s “partial constitution” so that the law was not an attack on the High Court.

Though Rivlin supported a constitution in principle, he essentially blamed the country’s Arab and Haredi sectors as resisting a constitution because neither wanted to acknowledge Israel as a Jewish state on terms of the country’s secular Jewish majority.
Earlier current Supreme Court President Miriam Naor made a similar impassioned plea like Barak to preserve the High Court’s judicial independence.

Many other academics and top former judges took similar positions (though there were some notable dissenters) while analyzing how the state and other countries protect “human dignity,” a centerpiece of the conference.

On a totally separate note at the conference, State Comptroller Joseph Shapira drew attention to his office’s unique ability to defend individual and minority rights even in places where the High Court could not reach and without Knesset interference.

He said his office takes “a broad view” of human rights in checking whether all government offices are doing their jobs, looking not only if they are following the letter of the law, but also if their actions are in fact addressing people’s basic socio-economic needs.

Shapira also said he was in a unique position to enforce on government offices their obligations under international law which the state has taken on by ratifying international conventions.

The comptroller added he has another advantage over the High Court as he can push for protecting human rights not only on the basis of law, but also on the basis of increased government efficiency.

Finally, Shapira said that what he was describing as the comptroller’s role was a growing trend in many other Western countries.


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