Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

12 Sivan 5766 - June 8, 2006 | Mordecai Plaut, director Published Weekly










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Opinion & Comment
The Knesset — Barak's Natural Forum

Aron Barak, Chief Justice of the High Court of Israel and a member of the court for 28 years, will retire in a few months.

The current Speaker of the Knesset is one of the leading ladies of the Labor Left, Dalia Itzik, and she has proposed inviting Barak to address the Knesset to mark his leaving public life. (Barak has said publicly that he will seek no further public office.) Addressing a session of the Knesset is an honor that has been extended to very few heads of state throughout the years. It has never been extended to a retiring government employee before, and in fact Knesset regulations will have to be amended in order to allow an invitation to Chief Justice Barak.

Whatever one's position about his ideology, it is an objective fact that Barak has been a divisive and controversial figure. Many of his decisions have generated bitter criticism, and he has been very domineering and openly partisan in exercising the effective control that he has over new High Court appointments. For example, he openly opposed the appointment of Hebrew University professor Ruth Gavison to the High Court. Even though it was obvious to all that she was eminently qualified, he would not let her onto the Court since she is an outspoken opponent of his approach to the role of the Court in Israeli life. Whereas Barak argues that the Court can decide anything, she argues that there are clear limits to the cases it should take. Observers said that Barak was afraid that after he leaves the Court she would remain the justice with the most powerful intellectual gifts and might sway a majority to her view of the issues.

Basically, Barak has done whatever he wants, and whatever he wants is often opposed to what large segments of society want, including the chareidi community, but not limited to them. Barak has argued that the Court should reflect the values and beliefs of a particular segment of society, which he calls the "enlightened" group.

A case in point was a recent challenge to the Citizenship Law enacted three years ago. The intelligence services had noted that a remarkably high number of terrorists were found among those who were allowed to enter Israel as a result of marrying Israeli citizens. Thus the Citizenship Law says that a resident of the Palestinian Authority may be barred from Israel if he is a security risk, even if he is married to an Israeli citizen.

In a narrow decision, the Court upheld the law but only on technical grounds: one justice cast the deciding vote based on the argument that the law is expiring soon anyway. However he agreed that the law should really be cancelled. If it is extended, it will likely be struck down by the Court.

In an unusual twist, Barak's reasoning in this case came to light with the publication of an email that he wrote to a friend in the US explaining it all. He claimed that he convinced many of his colleagues that there is something called "family rights" and that it includes the right of an Israeli citizen (the Israeli Arab married to a citizen of the Palestinian Authority) to live together with his or her spouse. "Family rights" are Barak's original invention and are not generally recognized by courts around the world. Barak then argued that these "family rights" are so important that they even override legitimate security considerations.

The result is that, potentially, the Israeli High Court will force Israel to admit enemy nationals, even in a time of war. As retired Justice Mishael Cheshin summarized, "Justice Aharon Barak is ready for 30, 50 people to be blown up as long as we have human rights."

Chareidi MKs have already announced that they will campaign against the invitation to outgoing Justice Barak. It is likely that they will be joined by many others from all across the political spectrum. The fact that Barak is controversial makes it natural that there will be broad-based opposition, plus the fact that many do not consider his many contributions to public life in Israel to be positive.

Nonetheless, there is a perhaps weighty consideration for even encouraging Barak to speak to the Knesset. It would provide a sort of confirmation of the fact that actually much of his activity, and especially his most controversial arguments, are really of a political and legislative nature. The Knesset is really his natural and proper forum. Maybe it would expose him as the politician-in-judge's-clothing that he truly is.

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