Beinisch has an inflated opinion of the High Court

Beinisch in her speech on Monday made a number of statements that I challenge below Ted Belman

Beinisch: Friedmann’s reforms are assault on Israeli democracy

By Yuval Yoaz, HAARETZ

Chief Justice Dorit Beinisch Monday attacked Justice Minister Daniel Friedmann, calling the minister’s proposals for curbs on the High Court constitued a direct assault on Israeli democracy.

Friedmann has urged restrictions on the universal right to petition the High Court of Justice and on the constitutional validity of its rulings in matters of public affairs.

In her speech, Beinisch said that

“judges can fulfill their role as the defenders of human rights if, and only if, the judicial system is accessible to everyone; only when judges face human suffering, or the distress of the unprivileged.”

This is outrageous. It is not the job of the Court to defend human rights but to uphold the law. the Knesset alone has the right to decide what human rights to protect. The courts job is to rule accordingly. Unfortunately, Beneisch holds that the role of the Court is to defend people from the Knesset. It all started with the passing of a basic law which protected “human dignity”. The Court used this as a license to interpret the phrase. What should have happened is that the Knesset should have interpreted it for the Court. Furthermore the Knesset should have articulated values which the people support that supercede human rights as defined by the Courts.

“the attempts to restrict the High Court’s jurisdiction, preventing it from ruling in these issues, are a direct assault on the democratic character of the State of Israel, on the viable democracy which our society has established and takes pride in.”

On the contrary most democracies, including the US limit access to the Courts/ A person must have “standing” to apply to the Court on a particular issue. She has turned matters upside down. Its the Knesset that should be unrestricted save for ways that it decides to restrict itself. The Court on the other hand does not have unlimited jurisdiction. Its role is to interpret the law. Unfortunately it has arrogated to itself powers not intended by the knesset.

“The validity of the petition must not be determined by the petitioner’s identity, but by the essence of the matter at hand,”

It is for the Knesset to legislate on the “essence of the matter”. The Court’s role to to adjudicate between interested parties.

“Criticism which is exclusively motivated by the desire to discredit the court, to undermine its jurisdiction and destroy its credibility and autonomy, will not dispirit us. The court cannot overlook its obligation to protect the rule of law and human rights.”

To desire to limit the Court’s jurisdiction is totally in accord with democracy. She defines a Court which is out of control and yet autonomous. The court has the obligation to protect the rule of law but not to protect human rights unless given the power to do so by the Knesset.

Beinisch told Judge Hanan Meltzer, a new appointee to the High Court, that she hoped that “the court you are joining today will remain the same high court of justice you knew as a lawyer, and that its numerous achievements will not be forgone.”

Friedmann said that he hopes “to alleviate the High Court’s terrible workload, which does not detract from its prominent status in our society and in the world. The apparatus should be improved, and I hope this goal could be achieved by cooperation.”

In Canada, Parliament was king. It could legislate that a man was a woman. The Court’s role was to make sure that all laws were constitutional, i.e within the powers of either the the Parliament or the provincial legislatures.

Then it passed the Bill of Rights in which certain rights were enumerated. Thereafter the Court had its role enlarged. It had to decide on whether legislation ran afoul of the Bill of Rights.

Israel may well want to support such a bill but it is their right to place other values, such as zionism and settling the land, which it wants to take precident.