Daily Israel Report

Changing of the Guard in the Supreme Court

After 11 years of ruling Israel's highest judicial tribunal with an iron fist, Hon. Aharon Barak retires today. He will be replaced by his protege, Dorit Beinisch.

By Hillel Fendel
First Publish: 9/14/2006, 11:30 AM / Last Update: 9/14/2006, 11:00 AM

The special swearing-in ceremony for Beinisch will be held at the Knesset this afternoon. She will be sworn in by Knesset Speaker Dalia Itzik, in place of President Moshe Katzav. Katzav requested and received special permission from the Knesset to temporarily suspend himself and not show up for the ceremony, in light of the ongoing police investigation against him.

The swearing-in will follow a ceremonious farewell to Barak, who turns 70 later this week. Beginning at 11 AM and nationally televised, the ceremony began with Barak reading aloud his last judicial ruling, concerning laws of inheritance and wills. He noted that his ruling relied upon Jewish Law - a departure from his general practice.
Invited to the ceremony were past and present Supreme Court justices, friends of Barak, and leading judicial figures from around the world. Barak, Beinisch, Attorney General Menachem Mazuz and Israel Bar Association head Shlomo Cohen will speak at the ceremony, held at the Supreme Court in Jerusalem.

Barak began his career in 1960 as an assistant lecturer in the Law Faculty of the Hebrew University in Jerusalem. Three years later he was awarded his Law Doctorate, and a year later, he was appointed Dean of the Law Faculty. In 1973, he received the Kaplan Prize for Excellence in Research and Science, and in 1975, the Israel Prize.

In 1975, he left academia when then-Prime Minister Yitzchak Rabin appointed him to the post of Attorney General.

Barak became a judge for the first time in 1978 when he was named to the Supreme Court. In 1995, in accordance with the law stating that the most veteran justice becomes the Court President, he became Israel's Chief Justice.

Barak left his mark on the Supreme Court, aggressively promoting his program of judicial activism. His philosophy is that the Court need not suffice with interpreting the law, but must also fill in perceived lacks in the law and develop it.

MK Avraham Ravitz (United Torah Judaism) told Ynet that Barak is "not a bad man, and he doesn't hate Jews. He's very talented, intelligent, and straightforward, but he also became the biggest enemy to... our basic concept of [being] a link in the many-years-long chain of Judaism."

Former Supreme Court Justice Yaakov Tirkel told Arutz-7's Hebrew newsmagazine last week, "Barak is a brilliant jurist, among the top jurists in the world - but a judge must express his opinions and outlook only when ruling on the issues brought before him. He should not express his opinions in other ways. In this matter I don't see eye to eye with him, because he often expressed himself on public matters in lectures and articles, and his opinions had a great - but misleading - media echo. The best example is when he said, 'the law fills the land,' as if he said that everything is justiciable. Ever since then, the entire public is convinced that Barak feels that the law must infiltrate into every place and into the space of every authority..."

Columnist Evelyn Gordon, writing for the Jerusalem Post four months ago, summed up much of the public criticism heaped upon Barak over the years by stating that Barak makes decisions "not by interpreting the law, but by creating new laws in the Knesset's stead." As an example, she quoted from an email he sent to a friend at Yale University, in which he wrote,

"In my ruling, I determined that the right to family life is a constitutional right of the Israeli spouse and his children. This right includes not just the right to marry, but also the right to live in Israel. I also determined that the law discriminates against Arabs, since all the Israelis who seek family unification with West Bank residents are Arabs. Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity."


Gordon wrote,
"In other words, instead of examining Israel's "bill of rights" - the Basic Law: Human Dignity and Liberty - and trying to determine what rights the Knesset intended it to confer, Barak decided what rights he thought it ought to confer, and then searched for something in the text vague enough to accommodate his desires. Specifically, he first decided that Israelis ought to have the right to live with their spouses in Israel. Then, since no actual article of the Basic Law confers this right, he decided to substitute himself for the Knesset and add it to the law, by declaring it "part of the right to human dignity." But Barak did not even stop at creating rights that the Knesset never envisioned. Instead, he created rights that it had explicitly rejected...
The Knesset discussed this issue [the lack of provision for marriage between members of different religions] while deliberating on the Basic Law, but in order to secure broad religious support for the law, it decided to leave the religious monopoly on marriage intact. In other words, the legislature deliberately decided that the law would not give Israelis the right to marry whomever they pleased. But Barak disagreed with this decision - and since he believes that the court has a better right than our elected representatives to determine the contents of Israel's "constitution," he decided to legislate a "right to marry" from the bench..."

Justice Dorit Beinish, the incoming Chief Justice, was born in Tel Aviv in 1942. She began her judicial career in 1968, as a prosecutor in the Jerusalem district. She headed the Supreme Court claims department in the State Prosecution from 1976 until 1982, at which time she became the Deputy State Prosecutor, graduating to State Prosecutor in 1989. In 1995, she was named to the Supreme Court.