Aron Barak, Chief Justice of the High Court of Israel and a
member of the court for 28 years, will retire in a few
months.
The current Speaker of the Knesset is one of the leading
ladies of the Labor Left, Dalia Itzik, and she has proposed
inviting Barak to address the Knesset to mark his leaving
public life. (Barak has said publicly that he will seek no
further public office.) Addressing a session of the Knesset
is an honor that has been extended to very few heads of state
throughout the years. It has never been extended to a
retiring government employee before, and in fact Knesset
regulations will have to be amended in order to allow an
invitation to Chief Justice Barak.
Whatever one's position about his ideology, it is an
objective fact that Barak has been a divisive and
controversial figure. Many of his decisions have generated
bitter criticism, and he has been very domineering and openly
partisan in exercising the effective control that he has over
new High Court appointments. For example, he openly opposed
the appointment of Hebrew University professor Ruth Gavison
to the High Court. Even though it was obvious to all that she
was eminently qualified, he would not let her onto the Court
since she is an outspoken opponent of his approach to the
role of the Court in Israeli life. Whereas Barak argues that
the Court can decide anything, she argues that there are
clear limits to the cases it should take. Observers said that
Barak was afraid that after he leaves the Court she would
remain the justice with the most powerful intellectual gifts
and might sway a majority to her view of the issues.
Basically, Barak has done whatever he wants, and whatever he
wants is often opposed to what large segments of society
want, including the chareidi community, but not limited to
them. Barak has argued that the Court should reflect the
values and beliefs of a particular segment of society, which
he calls the "enlightened" group.
A case in point was a recent challenge to the Citizenship Law
enacted three years ago. The intelligence services had noted
that a remarkably high number of terrorists were found among
those who were allowed to enter Israel as a result of
marrying Israeli citizens. Thus the Citizenship Law says that
a resident of the Palestinian Authority may be barred from
Israel if he is a security risk, even if he is married to an
Israeli citizen.
In a narrow decision, the Court upheld the law but only on
technical grounds: one justice cast the deciding vote based
on the argument that the law is expiring soon anyway. However
he agreed that the law should really be cancelled. If it is
extended, it will likely be struck down by the Court.
In an unusual twist, Barak's reasoning in this case came to
light with the publication of an email that he wrote to a
friend in the US explaining it all. He claimed that he
convinced many of his colleagues that there is something
called "family rights" and that it includes the right of an
Israeli citizen (the Israeli Arab married to a citizen of the
Palestinian Authority) to live together with his or her
spouse. "Family rights" are Barak's original invention and
are not generally recognized by courts around the world.
Barak then argued that these "family rights" are so important
that they even override legitimate security
considerations.
The result is that, potentially, the Israeli High Court will
force Israel to admit enemy nationals, even in a time of war.
As retired Justice Mishael Cheshin summarized, "Justice
Aharon Barak is ready for 30, 50 people to be blown up as
long as we have human rights."
Chareidi MKs have already announced that they will campaign
against the invitation to outgoing Justice Barak. It is
likely that they will be joined by many others from all
across the political spectrum. The fact that Barak is
controversial makes it natural that there will be broad-based
opposition, plus the fact that many do not consider his many
contributions to public life in Israel to be positive.
Nonetheless, there is a perhaps weighty consideration for
even encouraging Barak to speak to the Knesset. It would
provide a sort of confirmation of the fact that actually much
of his activity, and especially his most controversial
arguments, are really of a political and legislative nature.
The Knesset is really his natural and proper forum. Maybe it
would expose him as the politician-in-judge's-clothing that
he truly is.
