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."
