Dei'ah veDibur - Information & Insight

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23 Iyar 5761 - May 16, 2001 | Mordecai Plaut, director Published Weekly








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Justice Barak Attacks Plan to Found Constitutional Court
by Betzalel Kahn

Chief Justice of the High Court Aharon Barak has attacked a proposal for a law to found a constitutional court, recently presented to the Knesset. Barak launched his attack on 14 Iyar at a press conference.

At the meeting, Justice Barak explained his ideological- judicial outlook to the journalists, and then criticized those who do favor the founding of a constitutional court.

Journalist Yoav Yitzhak who was present at the meeting but was asked to leave it in the middle, writes that the establishment of a constitutional is one of the main issues currently disturbing the Chief Justice. "If it is decided to found a constitutional court," Yitzhak noted, "the High Court is liable to lose some of its luster. The fact is that Barak -- who claims that his personal status would be strengthened by the founding of such a court -- devoted the major part of the meeting to this issue."

Barak claimed that such courts have been established in two countries only: In Germany and in South Africa at the end of the apartheid government. "A constitutional court," Barak said, "is liable to weaken the High Court to a great extent, undermining its prestige and status in the eyes of the public. The High Court will be regarded as a political court and the moment that appointments become politicized, that is the end."

Barak also claimed that those who support founding of a constitutional court are motivated by alien considerations: "They want to found a court that will have `our judges;' that will represent `our sectors.' The name `constitutional court' is just a code for a `political court.'" Barak noted later that according to his approach, human rights are protected by the High Court. "There is no place for a political court. I think that the setup of such a court will be a fatal mistake, with a far-reaching, negative outcome. It will harm democracy." Barak then repeated that the claim that the High Court is the only court to rule on ideological issues is incorrect. "The Magistrates Court and the Regional Courts also decide ideological issues," he asserted.

Yoav Yitzhak adds that at the end of this part of Barak's speech, he invited his guests to ask questions. However before that, he asked that everyone present honor his request not to quote the discussion nor to quote him. That was the condition he had made at the outset, a condition agreed upon by all those present. At that stage, Yoav Yitzhak told Barak that he had not been told this when he was invited to the meeting. Without hesitation, Barak said: "If that's the case, you can leave."

In his article, Yitzhak sharply criticizes Barak's behavior, noting that it raises many difficult questions. "Barak is the Chief Justice of the High Court. Nonetheless, he allows himself to invite representatives of the media in order to manipulate public opinion against the founding of a constitutional court: without ascribing the statements to him and without his assuming responsibility for his claims. In addition, the condition he made for participation in the meeting -- to the effect that the nature of the conference be one of agreement and that remarks made be non- attributable and unquotable, testifies to his erroneous conception not only of his own role, but also of that of the press."

Yitzhak adds: "All this was said with respect to so important a public issue: the structure of the High Court, [to the saying of] yes-or-no to a constitutional court, yes- or-no to the expansion of the appointment of judges from different sectors. But in this case, Justice Barak behaves with the brashness of a king: He has a monopoly on judicial information and channels it only to journalists and media who will accept his authority: in other words only to those who agree at the outset not to ascribe the information to him and not to quote him. Aharon Barak presides as the Chief Justice of the High Court, and by dint of that position he has a monopoly on all judicial and legal information. But it is not his private property. For this reason, he may not deny a journalist the right to participate because he doesn't accept the Chief Justice's dictates."


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