Beinisch ‘had courage, will to strike down laws’

Legal experts laud outgoing court president’s stance on human rights.

By JOANNA PARASZCZUK
Israeli Supreme Court 311 (photo credit: REUTERS/FILE)
Israeli Supreme Court 311
(photo credit: REUTERS/FILE)
After 16 years on the Supreme Court, and nearly six years as its president, Justice Dorit Beinisch will make her final ruling on Tuesday, deciding whether to accept or reject three petitions filed by civil rights activists against an allegedly discriminatory national insurance law.
While Beinisch has attracted loud criticism – and plaudits – for her judicial record, according to Prof. Barak Medina, dean of law at the Hebrew University of Jerusalem, Beinisch’s main contribution to the court has been to provide “strong protection to human rights.”
“Beinisch has been very active in providing strong protection to human rights, and in defining what constitutes an infringement of rights,” Medina said.
One significant element of Beinisch’s term as Supreme Court president, Medina said, is that she has not shied away from undertaking judicial review of legislation before it has been applied.
Beinisch also has shown the “courage and willingness to strike down legislation” when she thought that a bill contravened Israel’s values as a liberal democracy, Medina said.
He traces Beinisch’s willingness to overturn government legislation to her roots as a state lawyer. The first woman to be appointed Supreme Court president, Beinisch was also the first woman to hold senior roles in the Justice Ministry, which she joined in 1967 and where she worked for 28 years.
For six years, from 1989 to 1995, Beinisch served as the state attorney, and represented the state in the Supreme Court, something that Medina says gave her an understanding of the government.“The fact that Beinisch acted as counsel for the state for so many years gave her the confidence to be critical of the government,” he said.
Even before Beinisch’s term as Supreme Court president began in September 2006, there were growing tensions between the legislative and judicial branches, resulting in bitter criticism of the Supreme Court, whom many have accused of eroding public confidence in the legal system by overturning Knesset legislation.
According to Medina, one of Beinisch’s most significant High Court rulings was her decision in 2009 to overturn a Knesset amendment to the Prisons Law, which provides that the country could establish prisons that were operated and managed by a private corporation rather than the state.
That petition, filed by lawyers from the Academic Center of Law and Business in Ramat Gan, argued that Amendment 28, as it was called, was unconstitutional because it disproportionately violated the rights of prison inmates. Human rights in a private prison would be violated to a greater extent than in a state-run prison, the petitioners argued.
In accepting the petition and overturning the law – even before it came into force and had a chance to be tested in practice – Beinisch took the majority view and wrote in her ruling that “the denial of personal liberty is justified only if it is done in order to further or protect an essential public interest.”
Beinisch further wrote in the ruling that when the state transfers the power to manage a prison to a private profit-making corporation, “it violates the prison inmates’ human dignity, since it undermines the very public purposes that lend legitimacy to imprisonment, and the inmates becomes a means for the private corporation to make profits.”
The ruling “marked the peak of [Beinisch’s] view of the judiciary,” Medina said. “By saying that privatization infringes basic liberties, she was marking her position.”
Beinisch’s most recent ruling, overturning the so-called Tal Law last week, was also a major highlight of her career, Medina said. Beinisch’s replacement, Justice Asher Dan Grunis, who is known as a more conservative judge who opposes judicial activism, took the minority view over the Tal Law petition, and voted to reject the petition.
Medina said it is too soon to tell to what extent, if any, Grunis will change the direction of the Supreme Court. “First of all, we must take into account that the president is just one justice, and a change in the president does not necessarily mean a change in the court,” he said, adding that it was difficult to predict what direction the court may take.
On the other hand, Medina noted that Grunis’s judicial philosophy is “radically different” from that of Beinisch, or her predecessor, the noted judicial activist Aharon Barak.
Medina said any change in the Supreme Court was likely to be longer-term, as the Supreme Court president exerted influence in the appointment of new justices. “The president can affect the court’s culture, but does not have any formal power,” he said.