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."
