High Court President Aharon Barak drew political fire for
saying that if the Knesset extends the validity of the
Citizenship Law it would be disqualified by the High Court.
Barak called the majority decision to reject an appeal
against the Citizenship Law only a "technical loss" for
him.
Ha'aretz published a letter it obtained that Judge
Barak had emailed to a professor at Yale Law School regarding
the rejection of the appeal against the Citizenship Law.
Commenting on his rare loss in a battle against fellow judges
on the bench he insisted "in substance, there is a very solid
majority for my view in the [High Court]. If the Parliament
[the Knesset] tries to reenact the statute without any
change, there is a high probability, according to the views
of the Court, the statute will be unconstitutional."
In his letter Barak writes, "The statute discriminates
against Arabs since all those who seek family unification
with residents from the West Bank are Arabs. As we do not
have a special section in our Bill of Rights dealing with
family rights or equality, I decided that those rights are
part of our right to dignity."
Barak also described the positions of the 10 other judges on
the panel who voted to uphold the Citizenship Law. "The
second major opinion was written by my colleague [Mishel]
Cheshin," Barak wrote. "He decided that there is no
constitutional right for family reunification in Israel, and
that even if there is such a right, there is a good
justification for its breach, because of security. One judge
supported his reasoning. Three judges concurred with me on
the violation of the rights, but agreed with Cheshin on the
proportionality issue."
After analyzing the stances of the remaining judges Barak
concludes, "As you can see, technically, my view lost, but in
substance, there is a very solid majority to my view that the
Israeli member of a family has a constitutional right to
family unification in Israel with a foreign spouse, and that
the statute is discriminatory. I also have a [narrow]
majority that the statute is not proportional, and therefore,
unconstitutional."
Barak also reveals, "I devoted much time and energy in
writing my ruling and trying to persuade my fellow judges the
sweeping ban on family unification is unconstitutional in
Israel. Some of them were persuaded, while others were
not."
In the barrage of attacks following the letter's publication
some political figures said once again Barak has revealed his
personal views and is trying to impose his political views on
the High Court decisions. In the Knesset Barak was accused of
interfering with the legislative process and causing
conflicts between the judicial and legislative branches.
