Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

26 Iyar 5766 - May 24, 2006 | Mordecai Plaut, director Published Weekly










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Shema Yisrael Torah Network
Shema Yisrael Torah Network











Barak Draws Political Fire for Remarks on Citizenship Law

By Betzalel Kahn

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.


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