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1 Adar II 5760 - March 8, 2000 | Mordecai Plaut, director Published Weekly
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Opinion & Comment
Judicial Tyranny

by A. Yitzchaki

The decision of the Aharon Barak's High Court to intrude into the private realm of the family constitutes another stage in the deterioration of the judicial system into judicial autocracy.

Under the guise of Basic Laws and under the mantle of an "ethical conscience," Barak and his colleagues are attempting to expand the limits of their control to include areas in which any link between them and the authority vested in them as a judicial body is purely coincidental.

They are not satisfied with determining positions on issues of religion and state. They are not satisfied with crude intervention in the democratic decisions of the Knesset. Their target is to expand their control to every area, including the very personal one of educational methods.

This isn't merely a decision against harsh violence, which requires judicial intervention, but rather a sweeping determination which seeks to deny parents the basic authority to educate their children.

Without any connection to the issue itself, which the gedolei haTorah ve'hamussar as well as educators have discussed, the fundamental question is: Who gave the court the authority to interfere in this area? Who transformed it into a body meant to supervise educational methods and to determine laws on this issue? What connection is there between the legal knowledge they acquired during their years in the university where they studied Ottoman, British and Knesset laws, and the authority to interfere in an educational area, in which the authority to decide should be given to outstanding educational and ethical figures?

We are not speaking only of judicial activism, as Aharon Barak defines it, but of virtual tyranny. This grim determination was made by attorney David Yerushalmi, a member of the board of trustees of the Institute for Advanced Strategic and Political Studies in Jerusalem, in an article which he published recently.

"The High Court ruled last month that every form of corporeal punishment which parents administer to their children is in effect illegal. The judges based their decision on two ideas. The first is that every form of corporeal punishment is harmful to children. (Of course there is no study which proves this). The second is the Basic Law of Human Dignity and Freedom. With that, they relied on a regular criminal appeal, on a "constitution." They did this, even though in Israel, no founding meeting for the enactment of a constitution has ever been convened, and no constitution or document of legal consequence has ever been written or approved by any sort of electoral body.

"The court explained that even a slight tap of a parent eats away at our aspiration to be a non-violent society. Therefore, corporeal punishment by parents is today forbidden in our society.

"In this manner, the High Court deviated from judicial activism and donned the mantle of judicial tyranny. In a daring move, Chief Justice Barak and his colleagues invaded the most intimate system of human relations, the family. Humane organizations which defended the right and the freedom of people from the damage caused by the state, have always been in existence.

"The concept `family' defines an arena which is outside the area of government intervention, except under the most extreme circumstances. Every state which tries to intrude into this area on the force of its strength as a state is a totalitarian one by definition.

"The tyrany of the masses, which dons the garb of an elected government or democratic institutions, is a danger to the freedom of the individual. Unlike the socialist beginnings of Israel, which glorified the state at the expense of individual freedom and the family itself, the United States established the family as the bedrock of freedom and as the armor against the threats of the rule of the masses or the rule of the elite. It is self-evident that in the United States, parents are still permitted to educate their children, as long as they don't cause them physical harm or overt and serious emotional harm.

"The reference to the constitution, in the meaning ascribed to it by the Founding Fathers of the United States is: a genuine constitution formulated only after public deliberations, votes of various sectors of the population, etc. All of these establishment balances will enable a controlled and rational decision to be made, which will remove the thorn of the rule of the masses.

"A constitution which does not act as a brake for the power of the state is no constitution at all. Most of the Israeli `democrats' who demand the enactment of a constitution do this precisely in order to accord the government the authority to appeal against the only existing brake against the power of the state: the status quo on matters of State and religion.

"Their purpose is not to curb the state, but to extricate it from the foundations of `primitive sects' which still hold on to the peripheries of the power center.

"In Israel there are Basic Laws which are really no more than results of the votes of a majority of Knesset. Constitutions which were written facilely simply because they appeal to the masses, are far from providing defense against the undermining of freedom."

Yerushalmi's remarks are penetrating and clear. The purpose of the demand to enact a constitution by a coincidental majority in the Knesset, is to uproot the only brake which until now has stood between the dictatorship of the state, and the need to compromise between various groups in Israeli society, in other words the status quo on matters of religion and state.

Chief Justice Barak, who is behind the promoters of the constitution does not actually need them, and he already today uses various Basic Laws and accords them legal interpretations which far exceed the intentions of the legislators.

His intrusion into private areas is yet another stage in the steadfast process of eroding the fundamentals of democracy, when an un-elected body, made up mostly of members of a small sector, and even of those in the periphery of the fabric of Israeli society, interferes in areas in which it has no jurisdiction.


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