Israeli Chief Justice Under Bitter Attack
Aharon Barak, the bookish president of Israel’s Supreme Court, entered the Jerusalem Bar Assn. at a brisk clip with his jurist wife by his side and a secret service agent covering his back. Wearing a baggy suit and open shirt collar to the evening reception, the unassuming chief justice made his way across the room to a quiet corner. The agent and two uniformed police officers--protecting him against recent threats on his life--followed closely behind.
To his many admirers, Barak, 60, is Israel’s version of the late American jurist Earl Warren--a brilliant, activist chief justice who is using the power of the high court to protect minority rights and bring about a revolution in Israeli law.
They call Barak a genius, the authority in half a dozen legal fields. He is prolific and persuasive in his writings, and it is said that lawyers now often cite him when they argue before him.
The bodyguards, however, are there because of his most ardent detractors.
Israel’s ultra-Orthodox Jewish press has launched a vitriolic campaign against Barak for his refusal to close a Jerusalem thoroughfare on the Sabbath and, more broadly, for expanding the secular court’s authority into ever greater areas of public life. His rulings, they say, threaten the Jewish character of the state.
Religious newspapers have branded the judge an “authentic enemy of Judaism” and “a dictator.”
In a recent article titled “The Target: Barak,” the ultra-Orthodox newspaper Hashavua wrote that the chief justice “is the driving force behind a sophisticated campaign against Jewish life in Israel.”
The article argued that “we must not waste our shells. The battle must be focused on this man who is very dangerous to democracy and liberties.”
These are frightening words to a country still recovering from the assassination of Yitzhak Rabin last November by a religious law student who viewed the late prime minister as a traitor to Jews.
When Barak subsequently received telephone threats--including one that he would “rot next to Rabin’s grave"--the government assigned bodyguards and stationed police around the apartment building where he lives.
This has calmed some fears but not the furor.
Like the United States, Israel expects its laws to be obeyed and its Supreme Court to be honored.
Average Israelis protest that a judge with bodyguards is something out of Italy or Colombia, not their Jewish state. The disturbing image suggests, once again, that the country may not be as enlightened as believed before Rabin’s assassination.
Prime Minister Benjamin Netanyahu--along with the president, parliament, legal establishment and top religious leaders--rushed to condemn the violent tone of the assault against Barak and the high court.
“We are a country based on law, and the Supreme Court is a cornerstone of the legislative authority of the state,” Netanyahu said. “We will not permit attacks on this important and central institution.”
Israel has no constitution. In his 18 years on the bench, Barak has interpreted the country’s few Basic Laws broadly, expanding the rights of individuals to appeal to the Supreme Court, as well as the kinds of cases the court will hear.
He has overruled government actions and set the stage for judicial review of laws, ensuring the court’s role as the nation’s ultimate legal arbiter.
The religious are not the only ones uncomfortable with such a strong court. Shortly after his condemnation of the attacks, Netanyahu told the Israeli newspaper Maariv that he was consulting prominent jurists, intellectuals and rabbis with an eye toward legislating limits on the Supreme Court’s power.
This drew a flood of criticism from legal experts and political opponents who accused the prime minister of caving in to pressure from ultra-Orthodox members of his rightist coalition government and of wishing to limit judicial oversight of his administration.
About 300 lawyers took to the streets in Jerusalem to protest incitement against the high court, while newspapers and political leaders argued that the government and parliament must never interfere with the court.
“The Supreme Court is the fortress of the individual in his fight against the government,” said an editorial in the daily newspaper Haaretz. Judicial oversight, it said, “is one of the pillars of democracy.”
Netanyahu issued a clarification that he was only examining the issue, not drafting a law. But the debate rages on.
In Israel, only a simple majority in parliament would be necessary to pass a law limiting the Supreme Court’s rule.
Opponents of such a move note that Netanyahu’s conservative coalition in the 120-seat Knesset includes 25 religious members who would be more than happy to do so.
Barak has remained silent in the eye of the legal tornado, and he asked his fellow judges to refrain from comment as well.
He is said to believe that the whirl of controversy and threats will soon pass.
Others are less sanguine. The ultra-Orthodox tried unsuccessfully to block Barak’s appointment as president of the court a year ago, and they vow to keep up the fight against him.
“Barak thinks that in a democracy the role of the court is to defend the rights of the individual and the minority,” said an associate who spoke on the condition that he would not be identified. “The ultra-Orthodox especially should be interested in a strong Supreme Court because they are a minority. But they are a minority who believes they are a majority . . . and they want a state of religious law.”
Barak would oppose any move to censor or suppress the religious newspapers that are printing the attacks against him, he said, because the judge believes in freedom of speech and does not see “a clear and present danger.” But the associate expressed fear that “all of these attacks will be misunderstood by people at the margins of society.”
Barak immigrated to Israel from Lithuania as a young boy, studied at Hebrew University and became dean of its law school at age 38. A year later, he was appointed attorney general and served as Israel’s legal advisor to the Camp David peace negotiations with Egypt.
His colleagues like to tell the story of how President Carter was so impressed with Barak that he jokingly offered the Israeli scholar a seat on the U.S. Supreme Court if he would move to the United States. Within months, Barak, then 42, was named to Israel’s Supreme Court; he is expected to remain on the bench until mandatory retirement at 70.
Over the years, Barak has earned a reputation for uncompromising honesty, vigilance of government corruption and protection of civil rights. Human rights activists, though, have criticized him for failing to protect Palestinians in the occupied territories; he approved deportations and house demolitions.
Barak’s conflict with the religious community stems in large part from his interpretation of two laws passed by the Knesset in 1992--the Human Dignity and Freedom Act and the Freedom of Occupation Act.
These were meant to be the cornerstones of an Israeli bill of rights. He views them as guarantees of equality and freedom of expression, work, lifestyle and religion--or non-religion--and has ruled that they grant the Supreme Court the power to overturn legislation that would violate the rights they protect.
Barak cited the Freedom of Occupation Act to overrule a government ban on imports of non-kosher meat, arguing that it violated the importers’ right to earn a living.
Strict religious law prohibits consumption of non-kosher meat, and many Orthodox Jews believe that it should not be sold in the Jewish state. Yet non-kosher meat, even pork, can be found in Jerusalem restaurants that are open on the Sabbath--another violation of religious law protected by the court.
Cases before the Israeli Supreme Court are decided by a panel of judges rather than by all 14 members; as president of the court, however, Barak selects the panels and assigns the cases to them.
Barak sat on a panel that ruled that Reform and Conservative Jews had the same rights as Orthodox Jews to sit on local councils that oversee religious affairs. This angered the religious establishment--run by Orthodox Jews who do not recognize the Reform and Conservative movements.
Barak has also recognized the rights of homosexuals, while religious leaders say Jewish law considers homosexuality immoral.
In Israel, rabbinical courts handle issues of marriage and divorce. Barak, however, has ruled that divorce rulings must be based on the principle of equal rights to joint property, requiring rabbinical courts to follow civil rather than religious law.
In the case of Bar Ilan Street--a major east-west artery of Jerusalem that bisects a religious neighborhood--Barak referred the issue to a committee of secular and religious Israelis. They are to draft a general policy on street closures.
Meanwhile, he enraged the Orthodox by leaving the road open.
His associates note that many of his rulings have favored the religious community, such as his rejection of a challenge to the army’s exemption of Yeshiva or religious school students from military service.
But the ultra-Orthodox community rejects the secular court’s authority to determine norms and values in Israeli society, and Barak symbolizes an institution it perceives as hostile to its beliefs.
A poll conducted by the Tammi Steinmatz Center at Tel Aviv University in August showed that 78% of the haredim, or ultra-Orthodox, do not trust the Supreme Court, compared with 19.6% of those who define themselves as simply “religious” and 6.2% of secular Israelis.
Asked why Barak is seen as the enemy, Rabbi Avraham Ravitz, a member of parliament from the United Torah Judaism party, was careful in answering that “if the meaning of ‘enemy’ is someone against whom you fight with arms, then Barak isn’t an enemy. But if ‘enemy’ means someone who opposes your view of the world, then he is an enemy.”
Ravitz said he has no problem with Israel’s Basic Laws governing human rights--which he supported in parliament--but with Barak’s liberal interpretation of them.
“Whoever thought that the meaning of liberty of trade was that a local council cannot close businesses on the Sabbath?” he asked.
Some religious leaders argue that to ensure their views are represented on the Supreme Court, justices should be elected rather than selected, as they are now, by a carefully appointed committee representing the Cabinet, Knesset, the bar and judges.
Political observers counter that this is disingenuous.
“Barak is trying to expand the power of Western values and democracy,” said Menachem Friedman, a sociologist at Bar Ilan University in Tel Aviv. “The ultra-Orthodox want to change the situation to bring more and more religious law into the system. They want full democratic representation in the high court, but they are using the system for their goal . . . to change the whole system.”