Beinisch ‘had courage, will to strike down laws’ (JERUSALEM POST) By JOANNA PARASZCZUK 02/28/12)
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After 16 years on the Supreme Court, and nearly six years as its
president, Justice Dorit Beinisch will make her final ruling on
Tuesday, deciding whether to accept or reject three petitions filed
by civil rights activists against an allegedly discriminatory
national insurance law.
While Beinisch has attracted loud criticism – and plaudits – for her
judicial record, according to Prof. Barak Medina, dean of law at the
Hebrew University of Jerusalem, Beinisch’s main contribution to the
court has been to provide “strong protection to human rights.”
“Beinisch has been very active in providing strong protection to
human rights, and in defining what constitutes an infringement of
rights,” Medina said.
One significant element of Beinisch’s term as Supreme Court
president, Medina said, is that she has not shied away from
undertaking judicial review of legislation before it has been applied.
Beinisch also has shown the “courage and willingness to strike down
legislation” when she thought that a bill contravened Israel’s values
as a liberal democracy, Medina said.
He traces Beinisch’s willingness to overturn government legislation
to her roots as a state lawyer. The first woman to be appointed
Supreme Court president, Beinisch was also the first woman to hold
senior roles in the Justice Ministry, which she joined in 1967 and
where she worked for 28 years.
For six years, from 1989 to 1995, Beinisch served as the state
attorney, and represented the state in the Supreme Court, something
that Medina says gave her an understanding of the government.“The
fact that Beinisch acted as counsel for the state for so many years
gave her the confidence to be critical of the government,” he said.
Even before Beinisch’s term as Supreme Court president began in
September 2006, there were growing tensions between the legislative
and judicial branches, resulting in bitter criticism of the Supreme
Court, whom many have accused of eroding public confidence in the
legal system by overturning Knesset legislation.
According to Medina, one of Beinisch’s most significant High Court
rulings was her decision in 2009 to overturn a Knesset amendment to
the Prisons Law, which provides that the country could establish
prisons that were operated and managed by a private corporation
rather than the state.
That petition, filed by lawyers from the Academic Center of Law and
Business in Ramat Gan, argued that Amendment 28, as it was called,
was unconstitutional because it disproportionately violated the
rights of prison inmates. Human rights in a private prison would be
violated to a greater extent than in a state-run prison, the
In accepting the petition and overturning the law – even before it
came into force and had a chance to be tested in practice – Beinisch
took the majority view and wrote in her ruling that “the denial of
personal liberty is justified only if it is done in order to further
or protect an essential public interest.”
Beinisch further wrote in the ruling that when the state transfers
the power to manage a prison to a private profit-making
corporation, “it violates the prison inmates’ human dignity, since it
undermines the very public purposes that lend legitimacy to
imprisonment, and the inmates becomes a means for the private
corporation to make profits.”
The ruling “marked the peak of [Beinisch’s] view of the judiciary,”
Medina said. “By saying that privatization infringes basic liberties,
she was marking her position.”
Beinisch’s most recent ruling, overturning the so-called Tal Law last
week, was also a major highlight of her career, Medina said.
Beinisch’s replacement, Justice Asher Dan Grunis, who is known as a
more conservative judge who opposes judicial activism, took the
minority view over the Tal Law petition, and voted to reject the
Medina said it is too soon to tell to what extent, if any, Grunis
will change the direction of the Supreme Court. “First of all, we
must take into account that the president is just one justice, and a
change in the president does not necessarily mean a change in the
court,” he said, adding that it was difficult to predict what
direction the court may take.
On the other hand, Medina noted that Grunis’s judicial philosophy
is “radically different” from that of Beinisch, or her predecessor,
the noted judicial activist Aharon Barak.
Medina said any change in the Supreme Court was likely to be longer-
term, as the Supreme Court president exerted influence in the
appointment of new justices. “The president can affect the court’s
culture, but does not have any formal power,” he said. (© 1995-2011,
The Jerusalem Post 02/28/12)
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