The Foundation for Constitutional Democracy


Chief Justice Aharon Barak and Judicial Despotism

Filed under: Supreme Court/JudicialCURRENT ISSUES — eidelberg @ 10:39 pm Edit This

[Edited transcript of the Eidelberg Report, Israel National Radio, May 22, 2006].

Before discussing Judge Barak, let us review Israel’s undemocratic method of appointing Supreme Court judges—there’s nothing like it in the democratic world.

The fifteen judges of the court are appointed by a nine-member committee consisting of three sitting justices, including the court president. Two are representatives of the Israel Bar Association. Two are cabinet ministers, including, the justice minister. Two are Knesset members, one representing the government coalition, the other representing the opposition. The committee’s majority, therefore, is unelected. Moreover, the two Bar Association members are subject to pressure by the court president before whom they may argue cases. This also applies to the justice minister, who can also be manipulated by the court’s president. And since the court’s president handpicks the judges for every case, he can very much determine the selection of his own successor as well as the court’s character as a whole.

So it’s obvious that Israel’s High Court of Justice is a self-perpetuating oligarchy. Indeed, it has been criticized by eminent Israelis across the political spectrum. But now let’s discuss Judge Barak.

Barak professes and practices the dictum that “everything is justiciable.” This means that every act of the Legislature and every act of the Executive is subject to judicial approval. This implies that the Supreme Court, of which Barak is the president, is the supreme law-giver of Israel, and that Barak himself is the self-crowned Monarch of this country!

A recent example of his audacity involves Israel’s family reunification plan. Despite the war being waged by the Palestinian Authority against Israel, Barak has announced that the Court will nullify the law preventing Palestinian Arabs from gaining Israeli citizenship by marrying Israeli-Arabs—this, despite his having been informed by the government that 20% of those who have received Israeli citizenship in the family reunification plan were involved in terrorist activity!

When Barak says “everything is justiciable,” he thereby rejects government by the people, of the people, and for the people. He does so in the name of Israel’s “enlightened population,” by which he means Israel’s ultra-secular minority. This minority is alienated from the Jewish heritage. The dictum “everything is justiciable” may then be applied to every law and precept of the Torah. The Barak Court is therefore the ultimate judge of what is good and bad, right and wrong, modest and immodest.

The Court therefore has the power to prescribe the morality or way of life of the Jewish people! Here are a few of the court’s rulings which obviously contradict Judaism:

  • The Barak Court ruled that the Chief Rabbinate does not have final jurisdiction over conversions.
  • The Barak Court ruled that kibbutz shopping centers may remain open to the public on the Sabbath.
  • The Barak Court ordered the Interior Minister to recognize homosexual adoptions performed overseas, even though Israeli law does not recognize such adoptions.
  • The Barak Court ordered the Interior Ministry to register a lesbian couple as parents of a child.
  • The Barak Court nullified Knesset legislation permitting the Film Censorship Board to ban pornographic movies by ruling that nothing can actually be declared pornography, as one man’s pornography is another man’s art.

Barak’s relativism is obvious. All lifestyles are morally equal. Notions of right and wrong, beautiful and ugly, are purely subjective. Barak has nonetheless said that no conflict exists between democracy and Judaism! Surely he is being disingenuous. He is employing the facade of democracy to cover his judicial agenda, to erase Judaism from the Land of Israel or transform Israel into “a state of its citizens.” Here is further evidence:

  • The Barak Court ruled that land purchased by the Jewish National Fund for the purpose of Jewish settlement must be sold to Arabs on an equal footing.
  • The Barak Court ignored the Attorney General’s decision to disqualify the Balad Party for violating Basic Law: The Knesset, which prohibits any party that negates the Jewish character of the State.
  • The Barak Court ruled against the IDF’s decision to level certain Arab houses used by terrorists to murder Jews. One of those houses was used by the Arab terrorists that murdered Tali Hatuel and her four daughters.
  • The Barak Court substituted its own judgment for that of the Defense Ministry by ordering the latter to re-route various sections of the “security fence” to the disadvantage of Jews.
  • The Court ruled that Judea, Samaria and Gaza are “belligerent occupied territory.”

These rulings have no basis in Israeli law. Barak’s ruling that Judea, Samaria, and Gaza are “belligerent occupied territory” even contradicts the Supreme Court’s own precedent. Since Jordan had no legal claim to Judea and Samaria, and since Egypt had no legal claim to Gaza, no country but Israel has a valid legal claim to Judea, Samaria, and Gaza according to objective international law.

Barak’s ruling that Judea, Samaria, and Gaza are “occupied territory” provided the color of legality for Prime Minister Sharon’s so-called Disengagement Plan. By implementing this plan, the government dispossessed and deported 8,000 Jews from Gaza and thereby violated Basic Law: Human Dignity and Freedom. This same government, contrary to the warnings of Israel’s highest military and intelligence officials turned this land over to Israel’s implacable enemies, who have made Gaza the Mecca of international terrorism.

Judge Barak admitted that the expulsion of Jews from Gaza violated Basic Law: Human Dignity and Freedom, but that this was permissible since it was necessary for national security. But Barak surely knew that Israel’s highest military and intelligence officials testified before the Knesset Foreign Affairs and Defense Committee that withdrawal from Gaza (and northern Samaria) would undermine Israel’s security. Barak’s ruling about national security was a cover up for his anti-Jewish agenda.

Barak has been the spearhead of the Left’s agenda to truncate not only the Land of Israel, but also the historic memory of the Jewish people which is bonded to Judea and Samaria and their centrality in the teachings of the prophets and sages of Israel. To rule that Judea is not part of Israel is to rule that eastern Jerusalem and the Temple Mount are not part of Israel. This is further evidence of Barak’s attempt to eliminate Judaism from the Land of Israel.

One last word. The so-called “constitution by consensus” published by the Israel Democracy Institute, a leftwing organization, would “constitutionalize” the power of the Supreme Court at the expense of the Legislative and Executive branches and thereby perpetuate judicial despotism. It is a brazen attack on Israel’s religious community and an audacious attempt to eliminate Judaism from the Land of Israel.