Aharon Barak calls to redefine High Court interventions

"The Jewish state is not a state of Halacha.”

March 6, 2018 19:30
2 minute read.
Israel's High Court of Justice

Israel's High Court of Justice. (photo credit: ISRAELTOURISM / WIKIMEDIA COMMONS)


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Former Supreme Court president Aharon Barak called on Monday night to redefine how the court, sitting as the High Court of Justice, intervenes regarding Knesset laws and government policies.

During a conference at Bar-Ilan University in Ramat Gan honoring Barak’s successor, former court president Dorit Beinisch, and a new scholarly book produced in her honor, he said that the High Court should more often turn to using monetary damages to provide relief for rights violations in place of nullifying laws.

If Barak’s proposal is implemented, it could have a tremendous impact, including for issues regarding the Israeli-Palestinian conflict and other major areas of policy.

He focused on an example of a case where a road was built in the North and the building of the road caused damage to the crops of a nearby kibbutz.

Eventually, the High Court ruled that the kibbutz was not entitled to damages because the road was not negligently built.

Barak said that the High Court should follow a trend in several other countries’ courts of granting damages to be paid by the state to victims even absent negligence.

His rationale was that citizens have an inherent right for their rights, such as a right to property, not to be damaged. If their rights are violated, even if there is no wrongdoer per se, they should be compensated.

While this was a narrow case, this idea could have profound implications for land disputes with Palestinians based on impact from the West Bank security barrier or other impacts and could be relevant to other major policy disputes.

The novelty of Barak’s approach is that it both offers more opportunities to make victims whole, while, where possible, avoiding the more drastic step of nullifying state laws or policies.

This could sidestep the growing conflict between the High Court and lawmakers over the court’s nullifying their decisions.

Following Barak’s speech, Beinisch took aim at Justice Minister Ayelet Shaked and the government’s proposed Jewish nation-state bill, saying she “hoped it won’t succeed... the Jewish state is not a state of Halacha.”

Beinisch warned that the separation of powers system, and the judicial branch’s independence in particular, were under attack by “the ruling class under the guise of improved governability” in a way that “endangers the system” of Israeli democracy.

“The approach of politicians to harm the defense of rights and to limit judicial oversight just because judges are not elected” was problematic, she said.

“The judicial branch is not in the political arena,” Beinisch said. “This is the secret of its power... This is the secret of the public’s faith. Even in these days, the public’s faith in the court is still preserved.”

Saying that countries around the globe compliment Israel for its courts and judicial system, she rejected efforts to move the court in any particular ideological direction. “Labeling judges will not work.

Their duty will be to [see] justice [done] whether they are liberal or conservative.”

Turning to Barak, Beinisch said, “Aharon, you created crucial pillars for us, and anyone who tries to tear them down will not succeed.”

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