"Judges who have not been elected by the people can cancel
laws of the elected legislature. This is a democratic act. In
addition, the argument that the Court should not rule on
values is unacceptable," said Chief Justice Aharon Barak in a
lecture to the Israeli Association for Parliamentary
Issues.
Barak spoke at length about the importance of the Basic Laws
which are to constitute the Constitution of the State of
Israel, and called for the completion of the Constitution as
soon as possible, because it is currently incomplete --- or,
as he put it -- "crippled and not very successful."
Barak was emphatic about the right and obligation of the
Court to interpret laws.
"The need for judicial control of the legality of the law is
evident. The supremacy of the Knesset and its special stature
in the separation of powers does not empower it to function
against the Basic Laws . . . The function of the Court in
the separation of powers imposes upon it the necessity to
interpret the Constitution and the laws."
In reply to a query whether it was democratic for judges who
were not elected by the people to cancel laws of the elected
legislature, Barak replied:
"The clear answer is: yes. Since the Constitution is a
democratic document, judicial criticism, which is meant to
enforce the Constitution, is democratic."
Alongside this, he stressed: "The Court has to display
judicial restraint. It can cancel a parliamentary law only as
a last resort . . . It must make every interpretive effort to
arrive at a result in which the law and the constitution
coincide. The cancellation of a law is a serious matter.
However if, after all of this self-restraint has been
applied, there is no choice but to cancel law, such activity
must not be regarded as undemocratic. The opposite is true.
This is democracy at its highest level. This is the formal
and the essential rule of law at its highest level."
Barak attacked the concept of a "Court bypass law" and said
that the Knesset can change a law as it sees fit, and
disagree with the interpretation given it by the High Court,
and this in no way undermines the Court.
However, what must be examined is whether the amendment is
appropriate.
"If the interpretation does not seem correct to the Knesset,
it has a right to amend the law," he said. Making an
amendment is within the authority of the Knesset. When it
does so, it doesn't undermine the authority of the Court. The
Court interprets the law which a legislature has formulated.
If the legislature doesn't agree with this interpretation, it
has the right to legislate a new law. The legislature
doesn't, thereby, assume judicial authority. Interpretation
and legislating are two different things . . . Therefore the
talk in Israel about a "Court bypass law" is irrelevant. The
rhetoric about a "Court bypass law" should stop. We must
focus on the content of the law: its legality and the
question of appropriateness according to social and judicial
parameters, he said.
Aharon Barak fervently defended the right and obligation of
the Court to rule on values, and firmly rejected all
criticism directed against him on this issue.
"Interpretation isn't a mechanical activity. It begins with
the language of the Constitution and the laws, but is not
confined to them. Every interpretation requires attention to
values and principles."
He cited proofs from the wording of various laws to show that
the Court must deal with values and ideologies, and that
without doing so, it cannot make decisions according to the
will of the legislature.
Barak also related to claims that judges issue decisions
according to their own individual values and those of their
social groups.
"In his judicial activity, the judge must not reflect his own
subjective values. . . . He must behave objectively. The
judge was not elected. He is permitted and obligated to deal
with values which do not necessarily coincide with his own
values, but rather reflect the values of the society in which
he lives. The judge doesn't `represent.' He `reflects' and
`expresses.' The Court, unlike the Knesset, is not a
representative body. It is an nonpolitical, independent,
objective body. Its power stems from its ability to clarify
the values of the system as they arise in his judicial
work."
Barak defended the procedure whereby judges serve in office
until the age of 70 and need not undergo additional selection
during their careers, unlike the political system, where
representatives are elected every four years. "A politician
is obligated to keep his constituents abreast of his
activities and to conduct himself in accordance with the
needs and wants of various sectors. As a result," he said,
"professional judges, who are not elected, are best suited
for the objective examination of values."
In concluding his remarks, Barak once more stressed the right
and obligation of the Court to cancel laws which contradict
the Basic Laws:
Barak surprised his audience by focusing on criticism leveled
against the High Court.
"Criticism of the Court is vital. Who will guard the guard?
Who will oversee us? We are prepared for criticism. We need
criticism. But it must be presented in a restrained, relevant
and respectable manner. Criticizing us is legitimate as long
as the criticism is based on a knowledge of reality and the
facts. We look forward to such criticism."
Barak then criticized those who say that it is impossible to
criticize the High Court, and said that precisely the
opposite is true, and that the Court is interested in
criticism.
He then stressed that judges are human beings, and also
fallible. "We also admit our errors," he said. He even
suggested that if a High court were appointed above the
current High Court, it is likely that it would overturn some
30% of the current High Court's rulings.
