Another excellent weblog post by Jonathan Edelstein, the Head Heeb, dated Sept. 15, 2006.
A giant departs
A few months ago, I was asked (among many other things) to name my political heroes. I’m not much of a hero worshiper, but in the end I settled on three: Yitzhak Rabin, Nelson Mandela and Israeli Chief Justice Aharon Barak. At the time, the first of these was a decade in his grave, murdered n the name of ultra-nationalism, and the second had left public life after completing his work. Yesterday, the last of the three stepped down from the bench, with his legacy intact but his work still unfinished.
Aharon Barak is often described as Israel’s Earl Warren, and he was that. Under Barak, the Israeli Supreme Court’s jurisprudence adopted equality between citizens as a Jewish as well as a democratic value, gave increasing weight to international human rights norms, and issued a series of landmark decisions favoring civil rights for minorities and restricting occupation policies. The Barak Court ruled, along with much else, that the state may not reserve land for Jews only, that the government could not discriminate in granting budget and investment priorities and that the security forces and that foreign workers must be permitted to change employers. During Barak’s tenure, the Israeli judiciary came down on the right side of nearly every important civil rights dispute, and on the few occasions when the court was wrong, Barak was almost invariably among the dissenters.
But Barak was more than Israel’s Earl Warren. He was also its John Marshall, both in his ability – sometimes to a fault – to command the court, and in his American-inspired conception of judicial review. To be sure, the Israeli Supreme Court has a long tradition of activism, and since the early days of the state, it has shouldered the responsibility of creating a system of fundamental rights in the absence of a single-document constitution. Before Barak, however, the court was hesitant to rule on issues affecting fundamental political questions or the nature of the state. The Barak Court adopted an increasingly broad view of the powers granted to it under the Basic Law: The Judiciary, and extended judicial oversight to political and even security matters. Its ruling that the Israeli security forces are forbidden from using human shields in the West Bank and Gaza, for instance, stands among the very few examples of a national court regulating military tactics on the battlefield.
Barak was, to say the least, not without his critics. On the left, he was castigated for taking years to resolve certain civil rights cases and for not taking a firm stand against the occupation and the settlement enterprise. From the right, his critics accused him of straitjacketing the security forces, interfering excessively in political matters and compromising the Jewish nature of the state with an internationalized post-Zionist conception of human rights. Whether Barak was too activist or not activist enough is in the eye of the beholder, but I believe that most of the criticism of his presidency is substantially misplaced.
Aharon Barak knew, as well as anyone, that a court’s power has limits, and that a panel of judges can’t singlehandedly solve a political conflict that has resisted half a century of diplomacy. He also recognized that, in the absence of a firm protocol regulating the relationship between the courts and the political branches, the judiciary must be careful in expanding its authority into new areas and respect the authority of the elected government. It was for these reasons that the Barak Court gave the government a chance to resolve social disputes through administrative and legal action before stepping in to rule. It was also this consideration that informed the court’s jurisprudence on such matters as the separation wall, in which it chose to render judgments that would actually make a difference rather than issuing grand pronouncements that would only have eroded its moral authority.
At the same time, Barak also realized instinctively that democratic institutions by themselves aren’t enough to protect human rights in conflict situations, and that countries in the grip of a conflict are particularly in need of strong oversight by the courts. One of democracy’s dirty little secrets is that democratic countries are often little better than authoritarian ones at handling external threats, because the electorate often votes its fears and because time-limited governments think in terms of short-term gains and palliatives rather than permanent solutions. The history of democratic countries in conflict, Israel not least among them, provides all too many examples of excesses driven by nationalism and fear. Preserving human rights and freedoms in these circumstances requires that checks and balances be given precedence over separation of powers, and that the courts not shrink from exercising oversight even where issues have political or security overtones.
I wouldn’t recommend many features of the Israeli government as models for other countries. Israel is a functioning state, and there are democracies that have done worse at handling long-term conflicts, but the combined strain of nationalist conflict, corruption and economic adjustment has had a debilitating effect on its politics. Many of the Israeli government’s decisions both past and recent – I hardly need to say which ones – have had tragic consequences. The Israeli courts, on the other hand, have with rare exceptions functioned exactly as they should. One has only to compare the Barak Court’s jurisprudence with the timidity of the post-September 11 American judiciary to understand what an extraordinary role it has played, and the example it provides for judges in threatened democracies.
Barak’s final test will be whether his legacy outlasts him. The work of the Barak Court is necessarily incomplete. The Israeli-Palestinian conflict and its associated human rights issues are far from settled, and civil rights within Israel proper remain vulnerable to nationalist attack. If anything, the Lebanon war has accentuated the divide between Jew and Arab, rich and poor, center and periphery, and made a strong Supreme Court all the more necessary to protect the rule of law. Dorit Beinisch, who was sworn in yesterday as the court’s new president, is a Barak protege and shares his views on human rights and the role of the judiciary, but she may not be able to command the court the way he did or fend off political attacks on its authority.
The mark of a giant, however, is that his work can be carried on by those of lesser stature. Barak leaves a tradition of judicial activism and a decade of accumulated civil rights jurisprudence behind him, and the court countains other judges who have no fear of taking controversial positions or opposing the state. This will not be easy to erode even if a future government is inclined to do so. Because of Barak, the Israeli courts are in a stronger position to protect and advance the rule of law than they would otherwise be. He is one of those who show what Israel can become, and his presence will be felt – and more than that, needed – in the coming years..