Israel's High Court of Justice.
(photo credit: ISRAELTOURISM / WIKIMEDIA COMMONS)
Deputy Supreme Court President Hanan Melcer resisted characterizations of activism by the High Court of Justice, saying that the court is always the passive party in battles over policy and the law.
“Like kids say, ‘We never start [fights],’” said Melcer at an Israel Bar Association Conference at Haifa University on Thursday, referring to exchanges with the government over laws or policy.
More specifically, Melcer was responding to questions about the court’s alleged activism and about whether a law allowing the Knesset to overrule the High Court would be a positive development.
The deputy chief justice was trying to argue that the High Court never initiates fights with the government since the government is the one that passes legally controversial laws and since petitioners must always file to the court for it to express an opinion.
Regarding allowing for a Knesset override of the court, he said, “If we had a regular circumvention law – what would happen here?” He then explained that in countries around the world that have a circumvention law, it is rarely used and legislative branches usually do not compete with the court’s ruling against them on the same issue more than once – or twice at most.
In contrast, “If we (the High Court) call a law unconstitutional... and we are less activist than many other states’ courts, despite the claim that we are too active... With the issue of drafting [Haredim into the IDF], the government has set a new record [in ignoring court rulings]... Some legislators say... we don’t care [about the High Court], we will just re-pass a nearly identical law and wait a year or so [until the issue comes back to the court].”
In other words, Melcer said that Knesset officials’ conduct in trying to stick with an unconstitutional exemption for the Haredim from being drafted into the IDF showed they would overuse a circumvention law – using it more than other countries do.
He said that a circumvention law could only be entertained if it included provisions that allowed it to be used only with super majorities, as high as 90 Knesset members, or with smaller super majorities where 10 members of the opposition also voted to circumvent the court.
Only in this way, could it be guaranteed that circumventing the court represented a very broad view of the public, which might consider minority and other rights, and not just the view of the governing coalition.
Melcer was also asked about his view on creating a special defender position with classified clearance so that defendants in cases where classified evidence is used can have a fuller defense.
Currently, if classified evidence is presented to the court, such as in administrative detention cases, the defendant’s lawyer is not allowed to be present and at most receives a paraphrase of the evidence afterword.
Melcer said he supported creating a special defender, but also had some skepticism.
He explained that Europe has created such a position, but following the creation of the position they sent judicial delegations to Israel to learn how Israel operates in informing themselves, since Israel has significant experience with classified evidence in court.