Supreme Court President Barak Dubious of

UNCLAS SECTION 01 OF 04 TEL AVIV 000522 SIPDIS STATE FOR NEA/IPA TWILLIAMS, NEA/PPD AFERNANDEZ STATE INFO FOR ECA DPOWELL/CMCROUCH/MCAIN/LMOODY STATE INFO IIP RWINCHESTER JERUSALEM PASS ICD DANIELS SENSITIVE E.O. 12958: N/A TAGS: PGOV PHUM OEXC OIIP KPAO SCUL IS GOI INTERNAL ISRAELI SOCIETY ISRAELI PALESTINIAN AFFAIRS SUBJECT: Supreme Court President Barak Dubious of Current Knesset's Constitutional Agenda SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY REF: A) 05 TEL AVIV 6717 B) 05 Tel Aviv 5490 ¶1. (SBU) Summary: In the Ambassador's January 31 meeting at the Supreme Court, Israel's Supreme Court Chief Justice Aharon Barak shared his views on Israel's constitutional future and his own future as he prepares to retire from the Court in September 2006. He described fundamental points of judicial interpretation on which he disagrees with his friend U.S. Justice Antonin Scalia, with whom he debated publicly at a January 29 Law Symposium in Jerusalem celebrating the 50th Anniversary of the Fulbright Program in Israel. Barak said he fears Likud MK Michael Eitan "and people further to the right" will keep trying to pass legislation to establish a separate Constitutional Court in Israel. Their goal, he claimed, is to decrease the influence of the independent Supreme Court/High Court of Justice and increase the influence of a body that is designed to be subject to political influences from the legislative and executive branches. Barak also said he expects current Deputy President Justice Dorit Beinisch to succeed him as President of the Supreme Court and head of the High Court of Justice this fall, based on her seniority on the bench, and noted he is trying to finish most of the 40 or so remaining separation barrier-related cases still pending before the High Court before his retirement. End Summary. Wary of Current Knesset Draft Constitution -------------- ¶2. (U) Ambassador Jones called on Aharon Barak at the Supreme Court in Jerusalem on January 31. Barak is President of Israel's Supreme Court, Israel's top appellate court, and head of Israel's High Court of Justice, which is a court of first instance, ruling primarily in matters regarding the legality of decisions of state authorities at all levels, including the constitutionality of Knesset legislation. An Econ officer, PD officer and PD's rule of law program specialist accompanied the Ambassador. The Ambassador also greeted Justices Salim Joubran and Dorit Beinisch during a short tour of the Court. ¶3. (SBU) Barak shared his views on the critical importance of judicial review and judicial independence in protecting democracy and its institutions. Asked for his assessment of the latest efforts in the Knesset to draft and adopt an Israeli constitution, Barak said he is strongly in favor of a constitution and has been active for years in efforts to achieve a national consensus draft. But he stressed that it would be far preferable for Israel to remain without a constitution than to adopt a bad constitution. He was openly dismissive of Likud MK Michael Eitan, current Chair of the Knesset's Constitution, Law and Justice (CLJ) Committee, and of the draft Eitan plans to "roll out" at a special Knesset reception in mid-February. Barak said he turned down Eitan's invitation to attend and speak at that reception. He feels that the Knesset's current draft is not the right formula. ¶4. (SBU) "Any constitution draft with a hope of earning wide consensus in a diverse society like ours will have to involve compromises," he said. But Barak fears that the deal the current Knesset CLJ Committee appears to be pushing for involves adopting a written constitution in exchange for significant representation of the Jewish orthodox minority on a new constitutional court which would be created to adjudicate constitutional cases. When asked about the version of a draft constitution recently completed by the Israel Democracy Institute (IDI),Barak replied, "That's a good text, and I'd support it." Constitutional Court a Bad Idea for Israel's Democracy -------------- -------------- ¶5. (SBU) Barak went on to say he disapproves of the effort by Eitan and others every six months over the last couple years to adopt legislation that would establish a separate Israeli constitutional court, the judges of which would be appointed by the Knesset. The goal of that legislation, in his view, is to make judicial decisions subject to political influence and remove or dilute a much-needed check on executive and legislative power. "Prime Minister Sharon's views in this regard were very constructive, and that draft legislation thankfully never got very far in the past," he said. Regarding the future, Barak said he did not know what mix of players would make up the Knesset's CLJ Committee after the March 28 elections. Protecting Civil Liberties in Israel's War on Terror -------------- -------------- ¶6. (U) According to Justice Barak, there have been over 80 petitions brought to the Supreme Court, seated as the High Court of Justice, regarding the route of the separation barrier. Of these, about 40 were settled out of court in consultation between the plaintiffs and the government, and the GOI successfully adjusted the barrier's route in those cases. Justice Barak remarked that on several occasions, he personally made suggestions to the GOI, and he felt that the State was usually flexible in adjusting the barrier's route. He was optimistic that within the year the remaining 40 or so cases could also be resolved. The cases taking the longest to adjudicate or settle are those related to the Jerusalem area, he said. ¶7. (SBU) Barak defended the Court against the often- heard accusations that it is "dragging out" and preventing the completion of the separation barrier. He said that in some instances, the IDF did not issue the land confiscation orders required to build the barrier, which slowed down the process. In addition, he commented that the GOI has changed the route of the barrier on its own, and these cases must then start again in court. Barak mentioned that to prevent appeal after appeal, he is now creating 11-judge panels to review many types of cases which might prove controversial, rather than assigning normal 3-judge panels which hear the vast majority of cases before the Court. (Barak explained that plaintiffs have the right to request appeals for their case to be "re-heard" by a larger panel of judges. An 11-judge panel in the current situation, where only 12 Supreme Court justice positions are filled, is the largest possible panel, and precludes the possibility of re-hearings.) ¶8. (U) Since the 1967 war, Palestinians in occupied West Bank and Gaza have had recourse to Israel's Supreme Court and High Court of Justice. Barak noted that the Court has reviewed thousands of petitions regarding proposed IDF demolition of Palestinian homes and property in the West Bank and Gaza. He explained that Israeli law dictates that house demolitions by Israel's security forces must be preceded by a judicial hearing by the High Court unless two criteria are met: 1) the demolition is necessary to clear a path in the heat of battle, and 2) waiting for and/or conducting a hearing will affect the outcome of the battle. Outside the actual "hot field" of battle, there are separate cases related to the effort by the IDF to use demolition of the homes of suicide bombers as a deterrent to future suicide bombings. In those kinds of cases, he said, the Court has ruled that destruction of a home that belongs to anyone but the actual terrorist would be illegal because it constitutes a punishment of the family. Similarly, he added, the Court has ruled that deportation or transfer of the family of a suicide bomber from the West Bank to Gaza would be unconstitutional/illegal, since it would be a punishment of persons other than the guilty person. -------------- -------------- Scalia v. Barak: Opposing views on Judicial Interpretation and Role of the Judge in a Democracy -------------- -------------- ¶9. (U) On January 29, two days before the Ambassador's courtesy call, Barak and Associate U.S. Supreme Court Justice Antonin Scalia gave keynote lectures and then debated at a public Law Symposium co-sponsored by the United States Israel Educational Foundation (USIEF) with Hebrew University's and IDC Herzliya's Law Schools. The topic of the two-day symposium, organized to mark the 50th Anniversary of the U.S. Israel Educational Foundation (Fulbright Israel),was "International Influences on National Legal Systems." Scalia had argued against the relevance of comparative (foreign) and international law cases in the Supreme Court's deliberations and interpretation of the Constitution, while admitting that "to his regret," that wasn't the prevailing view on the Court today and such cases would likely continue to be cited in U.S. courts with increasing frequency. Barak argued in favor of the relevance of comparative and international law in domestic adjudication in certain circumstances, and elaborated his "purposivist" approach to judicial interpretation in contrast to Scalia's "originalist," text-based interpretation. Some 500 Israeli and international legal experts, judges, students, press, and public attended the January 29 session, at which the Ambassador and Israeli MFA Director General Ron Prosor and others provided welcoming remarks. Later in the evening, the spirited debate and exchange continued as the Ambassador, Israel's Foreign and Justice Minister Tzipi Livni, Justices Barak and Scalia and 60 other guests attended a closed Fulbright Israel 50th Anniversary dinner also organized by USIEF. ¶10. (SBU) In their January 31 meeting, Barak described to the Ambassador his strong disagreement with Justice Scalia's "originalist" philosophy, and explained his own view that "purposive" interpretation was the more appropriate approach in bolstering democratic institutions and serving the cause of justice. "What good is a dead Constitution? The U.S. framers intended it to be a living Constitution," he said. Characterizing Justice Scalia as one of the most influential judges currently on the U.S. Court, Barak lamented -- as he had done many times to Justice Scalia's face, he quickly added -- that the Justice takes such a black and white, text-based view, which Barak said he sees as extremely regressive and fundamentalist. Barak emphasized the critical role of judicial review in the U.S. and Israeli systems as a key tool in the protection of democratic institutions of government, adding, "If you don't protect democracy, democracy won't protect you." He explained that the concept of judicial review was not included in the text of the U.S. Constitution and is not enshrined in the series of Basic Laws that currently serve as Israel's informal constitution. Rather, judicial review in Israel was established by an Israeli Supreme Court decision drafted by Barak in 1994 in Israel's version of America's landmark 1803 Marbury v. Madison ruling. ¶11. (SBU) Justice Barak spoke highly of his expected successor as Chief Justice, Dorit Beinisch, and said he expects her to continue along more or less the same lines of judicial interpretation and outlook as his own when she succeeds him in September. Praise for Fulbright and PD Rule of Law Programs -------------- --- ¶12. (U) Barak, who was a Fulbright scholar in the U.S. in 1966-67, reiterated to the Ambassador his high praise for the excellent public diplomacy speaker and exchange programming that the Embassy has organized with Israel's judiciary over the years. In an earlier meeting (Ref A),he had outlined to the PAO some ideas for future areas of PD programming, including longer- term exchanges and/or sabbaticals in the U.S. for Israeli judges and seminars and speakers on topics of mutual interest. The Ambassador told Barak he supported those ideas and would work to implement as many as possible. Barak personally thanked the Ambassador for the efforts of PD's rule of law program specialist (also present at the meeting),whom he said he had worked with for nearly a decade. He encouraged the Embassy to continue to work with his successor on the Court to keep up such mutually beneficial programs, which he said provide much needed exposure for Israeli judges to foreign legal systems. As he told the PAO in November, "comparative domestic law and international law are both becoming more important worldwide, and the legal field is not immune to the overall trend toward globalization." (Ref B highlights post's recent rule of law related programs.) -------------- Personal Plans -------------- ¶13. (U) Barak said he eagerly awaits his retirement in September. The government had asked him to stay on as President for two extra years, something which would have required special Knesset legislation raising the mandatory retirement age for all judges from age 70 to age 72. He turned down the offer. "I approved their idea of draft legislation raising the retirement age for judges, specifically on the condition that it would not apply to me," he laughed. A prolific author both before and during his time on the Court, Barak looks forward to time to write more and also lecture abroad for a couple months each year, including at Yale University Law School, where he has lectured frequently over two decades. He emphasized that he intends to spend most of his time in Israel, where his input seems most relevant and needed. JONES