Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

1 Sivan 5761 - May 23, 2001 | Mordecai Plaut, director Published Weekly








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Aharon Barak Hopes That He Can Design The Future Israeli High Court
by Yated Ne'eman Staff

A new book, based heavily on conversations with the president of the High Court, writes that he sees himself as "an educator" of the Israeli public and obligated to perpetuate a legal revolution, according to which "Everything is judiciable." In his opinion, the conflict with the Arabs is coming to an end and then the country will finally be able to dedicate its resources to solving the problems between the secular and the religious. The book also describes the struggle of the Chareidi public against Barak and the central role Yated Ne'eman played.

The president of the High Court, Aharon Barak, believes that in the next few years the State of Israel will no longer be so occupied with the Arab problem and it will be able to solve the problems that persist in the area of religion and state. Barak feels that the solutions of these will be decisive and he's going ahead with his plans for the High Court by appointing judges who share his judicial- ideological approach about the need "to educate" the public with the light of democracy and liberalism, which he considers to be the important and fundamental values of Judaism. All this emerges clearly in a book just out, His Honor, written by the journalist Naomi Levitsky and published by Keter.

The book is a novel and somewhat unprecedented initiative. It isn't usual to publish a biography of a prominent legal personality, especially when he is head of the court system, and even more especially while he's still serving in his position. But what is most surprising, is that Barak cooperated -- almost collaborated -- with the writing and editing of the book.

"Thanks to Barak's cooperation, I was able to better understand the dilemmas and quandaries that accompany the High Court and especially its president," says the author in the acknowledgments section of the book. For almost a year, she writes, she met almost weekly with Barak in his chambers for an hour. "I found that he is indeed an excellent teacher who knows how to explain even to a layman like me the most complex legal doctrine and to transform it into an exciting challenge."

The agreement between them was that things said could be included but they would not be written as direct quotations (that is, in quotation marks). All the remarks which are not in quotation marks, says the author, are based on dozens of hours of conversation with Barak, and followed by an all encompassing debriefing about the writing of the book. Barak even recommended a friend to serve as legal editor for the book.

Based on this, there is a great deal of significance and reliability to the observations in its pages regarding things Barak said and feels. The chapter entitled "The Biggest Revolution of All" describes Barak's elation on the day the Knesset passed the Basic Law that enabled him to begin his legal revolution.

"On the days when Barak is not in the courtroom, he is in the habit of returning home for an afternoon nap. One day, at the end of March 1992, he returned to his chambers and approached his desk, when his eyes fell on a document lying there. He took the document in hand and began reading it. He suddenly jumped up and a cry of joy escaped his lips. It was the Basic Law: The Dignity and Freedom of Man. He read and reread it unable to believe his eyes. That's it, he said to himself, Israel finally has a constitution."

Barak had waited a long time for this moment, writes the author who relates how a group of Knesset Members with liberal opinions succeeded in passing the Basic Laws stealthily, lulling the religious representatives to sleep. When the Basic Laws were accepted, Barak was in the middle of writing an opus entitled Legal Interpretations. He had just started writing the third volume which was meant to deal with the special problems in interpreting legislation. Now he decided to change the topic of the volume and deal with constitutional interpretation.

"From Barak's point of view, all the upheaval that he brought about in the High Court was aimed at this specific goal. He regarded all the changes that he had led until now as minor in comparison to the big contribution that he now saw before him. He knew that through this law he could bring about the biggest revolution of all: the constitutional revolution."

The book mentions that a leading name is Dan Meridor, former Likud MK who is now a member of the Center Party. At a ceremony swearing in judges, Meridor, then the Minister of Justice, said that the Basic Law portends, "a constitutional revolution."

If that term had appeared only in Meridor's speech it is doubtful if it would have caused much ruckus. "But Barak, who has a copywriter's talent, took it, Hebraized it, coined the phrase and went out on an aggressive marketing campaign. In every lecture, in every speech and in every article he was careful to use the term 'the constitutional revolution.' "

Barak consciously went out on this marketing campaign. In his eyes, it was a matter of education and he wanted every man and woman and especially every girl and boy to internalize and absorb this term in addition to all the other baggage that he has. In his eyes this is the real revolution, because the rights of man have been recognized for the first time in the Basic Laws and from his perspective a constitutional reality has even been created according to which the Knesset can no longer violate the rights of man because of its political desires. It must legislate from now on only according to the Basic Law: The Dignity and Freedom of Man.

Barak said that it is a question of confidence in the measures that limit the Knesset and do not allow it to legislate anti-democratic laws. Even laws that are in essence democratic will from now on have to be held up to the Basic Laws, but Barak is the one using them to create a revolution.

Barak's decision to see himself as an "educator" and a preacher of the values in which he believes, says Levitsky created friction between him and the past president of the High Court, Meir Shamgar. As someone who is convinced that the role of judges is just to write judgments, Shamgar wasn't thrilled with Barak's trips to Yale University and the large amount of time that he dedicated to writing books and articles. This came at the expense of the time that he dedicated to legal judgments, he used to say.

Least of all was he enthusiastic about the public speeches that Barak made in which he presented his opinions. Phrases such as "Everything is judiciable," "The whole country is a trial" and the "Constitutional Revolution," Shamgar viewed with loathing and even today, he believes that they are detrimental to the status of the Court. If a judge has something to say, he should say it in a verdict, says Shamgar. Perhaps because of this, he wasn't so quick to defend Barak when he was attacked.

"For his part, Barak believes that his job as a High Court judge, and certainly as president of the Court, is more than just issuing judgments. In his opinion, the judge must impart and instill values of democracy and equality."

The chapter dealing with "the revolution," Levitsky summarizes with the words: "At the end of the twentieth century, Barak succeeded in leading the High Court to recognize the value of the Basic Laws which deal with the rights of man and to anchor in case law the constitutional revolution that he brought about."

Tension With Religious

The book also deals at length with the tension that rose between Barak and the chareidi, religious and traditional populations. It turns out that Barak pushed his secular liberal approach the whole way.

In one of his articles he wrote, "In order to bring harmony between the Judaism of the country and its democratic nature, we have to give this word a broad meaning which will unite all the members of the society and find what is common to them." From Barak's perspective as expressed in this article and elsewhere, the meaning of the word "Jewish" in the term "a Jewish and democratic state" (that appears in the country's "Independence Scroll") is not related to the Halachah, and not even to "Hebrew Law (mishpat Ivri)." For his part, Jewish values are, "Values of love of man, the sanctity of life, social justice, doing what's good and just, preserving the dignity of man, the government of legislated law and such universal values, which Judaism bequeathed to the entire world."

Articles of this type, notes the author "only turned more against him the very public which he wished to educate." In her words, from Barak's perspective the biggest danger facing the State of Israel isn't an outside enemy, but the internal rifts in society and the increasing danger to the perfection of democracy. "He believes that the Arab-Israeli conflict is coming to an end even if the road is difficult, and then Israel will finally be able to dedicate its resources to solving internal problems, especially the most difficult one: the deep rift between the religious and secular. The Court, he knows, will then have a more decisive role."

How will Barak solve these problems? We can learn this from the spirit of his articles and his legal decisions. But in his naivete, Barak already revealed what's innermost in his heart, his opinion regarding "the compromise" he envisions. "With longing he would think about those days when the rules of the game were clearer, days when differences of opinion were solved pleasantly, involving a compromise between the sides. Justice Zvi Berenson ordered that television broadcast on Shabbat and the religious accepted it! There was an accepted system of concepts and values. Today Barak feels that he's functioning in a situation of deep crisis about the very democratic existence of the country."

The way Barak dictates his opinion, politely and elegantly, to the High Court judges, we can learn from the way in which the decision of the Bagatz was written on the matter of the draft of the yeshiva students. In the author's opinion, this decision is, "A clear example of the restraint that he imposes. This judgment was a work of political thought." (Today, everyone knows that "restraint," pushed the country into a deepening rift and maelstrom, after Barak succeeded in turning the matter that had been agreed upon for more than 50 years, into a hot media event and into a political hot potato.)

A broad panel met about the sidelines of the High Court. "Already at the first meeting of judges, Barak informed his colleagues that this opinion he will write himself. He told them how he planned to deal with the complicated problem and requested their agreement. In such a sensitive matter, he said, it's important that we present a united front."

We stress that the fact that this book was written following lengthy talks with Barak lends a lot of weight to the words of the author. Special significance is thus evident in the following sentences which describe the feelings of Aaron Barak almost two years ago, right after the elections in 1999. "The political upheaval and the election of Ehud Barak as prime minister were for Barak a hopeful beginning. Not because of the political change but because he saw a chance that the religious- chareidi block won't tip the scales anymore and won't determine the national agenda. The new prime minister immediately declared his commitment to the rule of law and the strengthening of the position of the High Court and these words rang in his ears. To his great pleasure, Choter Yishai was deposed in elections as head of the Israeli Bar and his place was taken by Shlomo Cohen. Also the relations with the Israeli Bar returned to their former state. He hoped that now the political siege would be removed and he would be able to begin to design the face of the future High Court. The principal judges are near retirement and in less than five years most would retire, one after the other. He felt that he had the responsibility to safeguard the continuation of the path that had been forged."

The information underlying this paragraph is important and sobering and provides food for thought to the representatives of the chareidi public. It turns out that in these days, Aaron Barak is planning the final domination of the High Court by designing the system and choosing judges in his imperialistic judicial image.

Yated Ne'eman will continue to fight against these intentions. We cannot resist mentioning that at the beginning of the book, the author mentions the unique contribution of Yated to the struggle of the keepers of the Torah against Barak's approach ever since his appointment to the key position was made known. Levitsky writes: "The chareidi newspapers very strongly expressed the feelings of the heads of the chareidi public, whether in the papers' articles or in its headlines. Yated Ne'eman, the paper of Rav Shach, one of the most important and influential papers of the chareidi community, stood out among them when its headlines screamed: "With the Appointment of Judge Barak a New Cultural War for The Nation is Threatening."


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