Barak: "If we don't defend democracy, democracy will not defend us."
By DAN IZENBERGaharon barak 224.88(photo credit: Courtesy)
In a voice choked with tears, Justice Dorit Beinisch took the oath of office on Thursday, becoming the first woman to be chosen president of Israel's Supreme Court.
Her predecessor, Aharon Barak, who bid farewell to the court after 28 years on the bench, kept referring to Beinisch as "my sister."
"And you, my sister Dorit, lead the judicial system in general and the Supreme Court in particular, to new achievements, to better protection of our Jewish and democratic values, to better service for the individual who turns to the court," he told her.
"There is no one better than you to achieve this lofty goal. With the wisdom, patience and common sense that you have been blessed with, with the love of mankind that typifies you, with your genuine modesty, deepen the roots of our democracy, give expression to our Jewish values and increase the liberty of every individual in Israel. The state has placed in your hands one of the most important of its values, the making of just decisions. And now, my good sister, spread your wings with all your might and strength, my prayers will be with you always."
There were other firsts in Thursday's emotional ceremony. It was the first time that the president of the Supreme Court was sworn in at the Knesset, the first time that the Knesset Speaker signed the president's credentials and the first time that the president of the State did not preside over the ceremony.
President Moshe Katsav took a day's leave of absence so as not to cast a shadow on the festivities because of the allegations of sexual misconduct and other crimes for which he is under investigation. He was replaced by Acting President Dalia Itzik.
In her speech, Beinisch warned against turning the Supreme Court into a target of political battles.
"The Supreme Court must be excluded from the disagreement raging in political life," she said. "It must be protected from those who aspire to turn it into an institution based on political representation or one that reflects in its composition and work procedures the party divisions in Israeli society."
The court is not the place for such disputes, Beinisch continued. "For that we have two other branches of government. Professionalism, independence, commitment to the basic values of the system and the distancing from the political arena are the elements that guarantee the proper functioning of the court," she said.
Barak began his speech by referring to the recent war in Lebanon. "I leave the Supreme Court at a difficult time for the nation and the state," he said. "The lack of a clear and unequivocal victory in the second Lebanon war has cast a feeling of depression and loss of direction upon many. Existential fears have revealed themselves in various parts of the population. Indeed, the situation is not simple. [But] the depression is unjustified.
"Our national existence in this land is based upon historical justice and genuine faith in the justice of our ways. This justice will prevail in the end."
Barak said it was true that the state faced many problems and that a national effort and "national patience" was required to resolve them. This was possible, he continued. "The nation is strong. The strength of the whole is greater than the combined strength of its parts."
In her speech, Itzik said that some of the criticism leveled against the judicial system was justified. "It seems that there is justification for the charges of a lack of transparency in some of its procedures," she said.
"As we appoint five new justices to the Supreme Court and shape its character for the coming years, I call for a proper reflection of all the different groups that make up Israeli society among the members of the bench." Itzik, who was once a member of the Judges' Selection Committee, abstained from voting for the only two candidates proposed for two vacancies on the grounds that the Supreme Court president and the justice minister had chosen the two by themselves and foisted them on the committee.
Five-and-a-half hours before Beinisch was sworn in, Barak took his leave from the Supreme Court after 28 years on the bench, including 11 as president. He devoted his speech to a summary of his judicial philosophy and also took the opportunity to refute some of the charges that have been raised against him by his critics over the years.
For example, he clarified a controversial statement he made many years ago to the effect that the law was in everything and that it applied to every situation. During his farewell speech, he said, "The law is in everything, but the law is not everything… What is true of the law is true of the law court. Adjudication is in everything, but adjudication is not everything."
At the same time, Barak warned, "Where there is not adjudication, might prevails. Where there is no judge, there is no law." He also addressed accusations that he had trespassed on the prerogatives of the Knesset and upset the balance of power between the branches of government.
"The ultimate expression of the sovereignty of the people is the institution elected by the people," he said. "This is the Knesset. This is its uniqueness. I safeguarded this uniqueness throughout the years. Without the Knesset elected by the people, there is no democracy… I always called for dialogue between the legislative and judicial branches."
But Barak also stood defiant against other accusations against him. "There has been frequent criticism of this court, and me in particular, that we are too activist," he said. "Those who make this claim have never defined what 'activism' is. At any rate, if the broad protection of human rights is activism, then we were just one link in a chain of Supreme Court activism that started with the establishment of the state."
As for criticism that the court under Barak should not have intervened in matters of values and that these questions ought to have been left to the legislature, Barak said, "I have never accepted this approach. There is no law without values and thus there is no adjudication without values. This is true of us and of the entire world. How can one interpret expressions such as 'justice,' goodwill' and 'reasonableness,' all of which appear in legislation, without taking values into consideration?"
Beinisch's speech was much more personal and emotional. She described Barak as "a legal giant, the greatest of Israeli judges, the most admired judge in the entire international community."
Beinisch had to interrupt her speech more than once to stop herself from crying. She referred to Barak throughout as "Aharon."
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