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20 Teves 5760 - December 29, 1999 | Mordecai Plaut, director Published Weekly








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Former Supreme Court Justice Elon Criticizes Barak Court Activism

by Yated Ne'eman Staff

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.

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