Retired Supreme Court deputy president
Menachem Elon has told the Knesset Law Committee that over
the past seven years he has turned from a cautious supporter
of basic human rights legislation to an outspoken opponent--
because of the activism of the High Court under President
Aharon Barak.
Elon was invited by United Torah Judaism MK
Rabbi Avrohom Ravitz to express his views on the draft of a
new bill, the Basic Law: Trial Rights. The bill is one of the
three new basic law initiatives under consideration by the
committee. Elon spent most of the time explaining why he
opposed all new basic law legislation in principle.
"The situation is horrible," said Elon,
referring to the public storm surrounding the activities of
the court, including the recent Knesset resolution
criticizing the court and the subsequent repeal of the
resolution.
"I don't recall there ever being a time like
this, when resolutions are passed back and forth like a ping
pong. The court must safeguard its honor. It must be above
this game."
Elon blamed the allegedly low public status
of the court on its far-reaching interpretation of the two
basic laws passed in 1992, and its readiness to overrule
Knesset legislation and allow almost anyone to petition the
High Court on any matter.
He warned that the status of the court will
deteriorate even more unless there is a halt to the process
that began with passage of the first two basic laws in 1992,
the Basic Law: Human Freedom and Dignity and the Basic Law:
Freedom of Occupation.
"We cannot continue with these basic laws
when the court has such enormous power to cancel legislation
until we sit down around the table and examine the issues
that must be taken under consideration," he told the MKs.
Elon said he started to worry about the basic
laws in 1995, in light of allegedly provocative statements
made by Barak regarding the basic laws, such as his
description of them as creating a "constitutional
revolution."
"I was very upset by that," said Elon. "I
said that these laws were based on the principles that the
court had maintained from its earliest days."
He said that the enactment of Basic Laws
should be halted to allow for an exhaustive public discussion
by not only MKs, but also by philosophers, thinkers and legal
experts in order to reach a consensus regarding the enacting
of such laws.
Elon also criticized Barak for using
theological terms to describe the law, such as the "universe
of the law" or "the holiness of the law." "The law," said
Elon, "is a small dot in the universe."
He said he turned against the basic laws
altogether when he saw the courts going farther and farther.
For example, he said, it took the court nine months to come
up with a ruling on the petition against closure of Rehov Bar-
Ilan in Jerusalem to traffic on Shabbos. In the end, its
ruling was almost identical to the arrangement originally
proposed by the government.
In the meantime, however, the court appointed
a public committee to investigate the problem, and ordered it
to present its findings to the court instead of the
government. "It is inconceivable to appoint a High Court
committee," said Elon.
He also criticized the two court decisions
rejecting Knesset laws and said the court had erred on both
counts.
In response to Rabbi Ravitz's question of how
Elon would relate to the definition of the State of Israel as
a Jewish and democratic state, were he the Chief Justice, and
how this would influence the legal system, Elon said:
"I wouldn't become involved in judicial
activism, and wouldn't say that everything is capable of
being judged."
Elon stressed that there is a long standing
argument between him and Barak on the issue of judicial
activism. "Already in 1995, I warned Barak not to be so
enthusiastic for a constitutional revolution."
Elon resolutely opposed the rescinding of the
Knesset Laws by the High Court, and said this does not create
a favorable image for the court.
He also said that all of the enactments of
Basic Laws until now have been "grabs." He added that when
the Basic Law of Freedom of Employment was enacted, no one
dreamt of the importation of non-kosher meat.
He added that as a result of the principle
that everything is subject to judicial review, whoever wants
publicity, files a petition with the High Court.
Elon also cited, as an example, the ruling of
Barak and his determination that the rabbinical courts should
decide on monetary manners in accordance with civil law, and
said:
"This ruling contradicts the natural legal
definition that rabbinical courts must rule according to
halocho."
Rabbi Ravitz claimed that there is nothing
more absurd than a situation in which a state defines itself
as Jewish, while its judicial system disqualifies by-laws or
other laws because they are of a religious nature.
"Religion is also a symbol of the state of
Israel, according to the law," Rabbi Ravitz said.
"It is clear that we have managed to halt the
erosion and the attempt to pass Basic Laws in a grab, and
have brought about serious discussions and the airing of
opinions of legal experts, not all of whom are religious, yet
who nonetheless oppose the Basic Laws.
The chairman of the committee, Amnon
Rubinstein said that in a number of weeks the committee would
meet again in order to discuss whether or not to advance the
enactment of the Basic Laws.
At the request of Rabbi Ravitz and other MKs,
the committee will initiate a proposed Anchorage Law for the
Passage of Basic Laws. The purpose of the law will be to
prevent grabs, and to effect a situation in which the
Fundamental Laws will not only be canceled by a special
majority, but also accepted by a special majority of at least
61 MKs.
