The Foundation for Constitutional Democracy


Israel’s Chief Justice Aaron Barak

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Israel’s Chief Justice Aaron Barak: Part I

Back in March 1992, the Knesset enacted two basic laws, Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation. According to Justice Aaron Barak, who at the time was not president of Israel’s Supreme Court, these two Basic Laws were nothing less than a “constitutional revolution.” The first mentioned Basic Law was passed by a vote of 32-21, that is, with less than half the Knesset voting, while the second passed by the underwhelming vote of 23-0.

Well, you see dear reader, there was an impending Knesset election, and Israel’s MKs were preoccupied with more important matters, like saving their seats. Yet these Basic Laws are supposed to be part of Israel’s so-called “emerging constitution.” It’s been emerging for decades! Emerging or not, can anyone imagine amending a country’s constitution, its fundamental law, by a mere 20% of its legislature, representing, we may suppose, a mere 20% of that country’s population! Would anyone take such a amendment seriously, or feel that it should have the status of a fundamental law superior to ordinary legislation?

Should not an amendment to a constitution involve not only painstaking inquiry, but public debate and and perhaps popular approval, the better to endow the amendment with democratic legitimacy and sanctity? Would not this more serious procedure preserve respect for the constitution and the rule of law, a precondition of any healthy democracy? A constitution is supposed to prescribe the ends of government, secure our rights and liberties, foster a sense of national identity, hence connect us with our past and posterity. Surely any amendment to that constitution should be undertaken with all due solemnity, should engage the nation’s sustained and profound attention.

Is it not obvious, moreover, that reverence for a constitution will not be forthcoming if changed too easily and too often? Do people revere what is transient, here today and gone tomorrow? Justice Aaron Barak thinks otherwise. Basic Laws, he has said, must be easily amendable to allow them to properly reflect the nation’s “changing values.” If so, what need is there of a Supreme Court or of long-tenured judges, of judges who were not made subject to popular election precisely to secure their detachment from the shifting winds of public opinion or of transient parliamentary majorities?

Barak’s attitude stands in striking contrast to that of James Madison, the father of the American Constitution. Madison warned against frequent change even of ordinary legislation, let alone of a nation’s constitution. Writing in The Federalist Papers (No. 63), Madison points out that “a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.” Why? Because “it forfeits the respect and confidence of other nations, and all the advantages of national character.” I emphasize “national character” for that is the one thing that is being undermined in Israel thanks to its irreligious, “post-Zionist” elites, of which Justice Barak is their most powerful because most strategically located member. His court adjudicates over 14,000 cases a year, affecting Israel’s political, social, economic, ethnic, and religious character.

Returning to Madison, he warns that, “The internal effects of a mutable [laws] … poisons the blessings of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws … undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed.” How much more so does Madison’s reasoning apply to a nation’s basic or fundamental laws, embodied in its constitution? But this is not all.

Madison goes on to say that the effect of mutable laws is the advantage it gives to clever “insiders” over the uniformed mass of the people. (Which insiders, while intoning such soporifics as “democracy,” “freedom,” and “human dignity,” can impose their will on the people.) “This,” says Madison, “is a state of things in which it may be said with some truth that the laws are made for the few, not for the many.”

Our great philosophic statesman concludes: “But the most deplorable effect of all is the diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays [by easy and frequent changes in the law] so many marks of infirmity … No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”

Every thoughtful Israeli politician would do well to read The Federalist Papers. That might lead to a genuine revolution in this country, which, lacking political and judicial statesmen, lacks national pride, national character, and national direction.

(to be continued)

Israel’s Chief Justice Aaron Barak: Conclusion

When Israel’s Knesset enacted Basic Law: Human Dignity and Freedom along with Basic Law: Freedom of Occupation in 1992, it was heralded by Justice Aaron Barak as a “constitutional revolution”! At last, he exclaimed, Israel has joined the community of constitutional democracies. Which means that Israel was not a constitutional democracy prior to the passage of those two Basic Laws! If not, what was it?

Perhaps Justice Barak believed that Israel had been on the verge of becoming a theocracy because of the high birthrate of its religious families. It’s true that the driving force behind those two Basic Laws consisted of the most ardent advocates of secularism and religious pluralism. This may explain Justice Barak almost delirious reaction. Never mind that only 27% of the Knesset voted for Basic Law: Human Dignity and Freedom, while only 19% supported Basic Law: Freedom of Occupation! Now the Supreme Court had two Basic Laws that would enable it to pursue its pre-eminently secular agenda.

Since then, and especially since Justice Barak’s became the Court’s president in 1995, the High Court of Justice has handed down a welter of decisions offensive to religious and traditional Jews. To mention only a few examples, the Court has (1) negated decisions of rabbinical courts in matters of religion and divorce; (2) ordered the Minister of Interior to register Reform conversions; (3) directed the Minister of Religious affairs to sign appointments of Reform and Conservative members to religious councils; (4) ordered the return of a girl to a secular school after her father withdrew her; (5) held that forbidding the import of non-kosher meat infringed the right to freedom of occupation!

That at least 80% of Israel’s Jewish population is either orthodox or traditional counts little in the Court’s calculations. The two basic laws in question, passed by absurdly minute percentages of the Knesset’s membership, have fueled Barak’s “constitutional revolution.”

Interestingly, Justice Barak did not appear as a revolutionary in meeting with the Knesset Law Committee. In fact, this former professor of commercial law exuded “political correctness.” Some MKs charged that, since the Supreme Court’s composition does not reflect the make-up of the country, it’s not qualified to determine the country’s values as a Jewish and democratic state—something the Basic Laws virtually force it to do by their constant reference to these undefined values.

Barak evaded the issue. “The solution,” Barak replied, “is that it should be possible to change the constitution [and] this should not require too great a [Knesset] majority.” He admitted that some kind of special majority was necessary, because the Basic Laws are supposed to protect fundamental rights against the whims of a chance majority. But as we have seen, Justice Barak waxed eloquent over the passage of the two Basac Laws mentioned above, even though they were passed by what may be termed the whims of a chance minority!

Barak also said that although the Court must take into account the Knesset’s intent when interpreting laws, judges are not infallible. If the Knesset, therefore, disagrees with the Court’s interpretation of the law, it should feel free to change the law to overturn the Court’s decision, since the Knesset represents the will of the people. We may ask: Just what does the Supreme Court represent? Justice Barak once boldly said, “the enlightened part of the population,” meaning Israel’s intellectual and cultural elites, the country’s ultra-secularists.

Justice Barak also noted that Israel’s constitution (in the form of Basic Laws) is still incomplete. Once completed, however, “it would be a good idea to bring it to the people [for approval].” But if this isn’t done, he added, it will not impair the legality [of the constitution]. Which means that the Knesset can go on enacting Basic Laws by minute minorities without affecting their constitutional status.

Barak also made an effort to calm the fears of religious MKs. “A constitution is meant to protect the rights of minorities, both as groups and as individuals,” he said. “I see it as my duty as a judge to defend the religious individual.” It so happens, however, that whenever there is a conflict between religiosity and democracy, the Supreme Court upholds democratic rights in almost total disregard of religious, i.e. Jewish, rights.

Nevertheless, the religious MKs said they were surprised and pleased by Barak’s support for the Knesset’s right to overturn High Court decisions, and for taking the Knesset’s intent into account when interpreting laws! Barak must have had to restrain himself to keep from laughing. Evidently, these religious MKs had never studied the all-important Transition Law of 1948, which, in theory, invests the Knesset with absolute power. In fact, unless I am mistaken, the Knesset is the only legislature in the world that is also a constituent assembly!

Nevertheless, such is the fragmented and inept character of the Knesset, that Justice Barak can confidently pursue his increasingly secular agenda.