aharon barak 298 88 AJ.
(photo credit: Ariel Jerozolimski [file])
Former Supreme Court Justice Aharon Barak said on Saturday that thanks to the development and application of judicial tools such as "proportionality" and "reasonability" by the High Court of Justice, Israel has been far more successful in protecting human rights while fighting terrorism than the United States.
Barak was speaking at the annual conference of the Israel Forum of Law and Society and Netanya Academic College. The main speakers at the weekend conference included Supreme Court President Dorit Beinisch, Justice Minister Daniel Friedmann and Barak. Their speeches focused on the dispute between the Supreme Court and Friedmann over sweeping changes that the justice minister has begun to introduce to reduce the court's powers.
In defending the court that he was instrumental in shaping, Barak maintained that the readiness of the court to review government decisions and Knesset legislation had "provided individual freedom in Israel to a greater degree than is enjoyed in the US."
He added that the US government's reaction to 9/11 has been a "disaster." Barak said that he had decided to speak out against Friedmann only after the justice minister began to take measures to interfere in the independence of the judiciary. He said that, during his time in office, he dealt with many tough ministers of justice. But, unlike Friedmann, "none of them wanted to destroy the separation between the executive [branch of government] and the judiciary."
He also criticized Friedmann's reported intention of introducing legislation prohibiting the High Court from hearing petitions dealing with security or budgetary matters. "In the public realm, if there is an area without judicial supervision, law will be one thing and acts will be something else. The result will be that victory will go to the strongest one. Who is strongest in the public sector? The government," Barak said.
Asked by a member of the audience who would review High Court decisions nullifying Knesset laws, Barak replied that he was in favor of making it reasonably possible for the Knesset to amend the Basic Laws (and then pass the legislation it wants) through one of various devices, such as a majority of 70 MKs, a condition that the change must be approved by two consecutive Knessets or a condition that the law would only go into effect after four Knesset readings, instead of the customary three.
In responding to Friedmann's announced intention of barring the High Court from dealing with security matters, Beinisch maintained that the court had never questioned the security aspects of military decisions.
According to Beinisch, what it does do is to take into account the impact of such decisions on individual human rights and weigh one against the other to find the proper balance. In Israel, because security is such an integral part of life, this approach is essential. "If you take away judicial review of security decisions, you will not be sure tomorrow what a military commander or the head of the Shin Bet Security Agency will be able to do to whomever he wants," she said.
Beinisch argued that the Supreme Court does not exceed the boundaries of its mandate. "The court does not intervene in matters that do not clearly involve questions of lawfulness, the rule of law or whether an institution is authorized to carry out a certain action," she argued. She also said that regarding the question of judicial review of parliamentary legislation, the Israeli court exercised more self-restraint than any other in the world.
In response to a question by former Supreme Court justice Gabriel Bach, Friedmann said he did not intend to prohibit the High Court from dealing with all security issues. He did not elaborate, but he did indicate that he would draft legislation that would prevent the court from hearing a petition protesting a military action while the action was taking place.
He also criticized the fact that the High Court was prepared to hear a petition protesting the government's decision to cut electricity supplies to the Gaza Strip. But, perhaps cynically, he interpreted the court's willingness to do so on the grounds that it believed the electricity cuts might constitute a violation of the right to freedom of occupation, rather than the right of Palestinian civilians to human dignity and freedom.
Friedmann also charged that the judges, including retired justices Barak, Mishael Cheshin and others, were violating the Rules of Ethics for judges that were approved earlier this year. He maintained that according to the rules, judges were prohibited from speaking out on matters that did not involve judicial issues. He also argued that the reforms that he wanted to introduce were not judicial matters, but matters of public policy. Therefore, the judges should not speak out on them.
At the same time, however, he complained that until he was appointed justice minister, the judges and their allies stifled public discussion of the allegedly far-reaching changes they had made in judicial decision-making.