As Supreme Court President, Barak applied his revolutionary principles to a large number of cases that frequently touched on the deepest, most sensitive and most emotionally charged social, ideological and political issues in Israeli life.
By DAN IZENBERGsupreme court 88 298(photo credit: Ariel Jerozolimski)
In his years as Supreme Court President, Barak applied his revolutionary principles to a large number of cases that frequently touched on the deepest, most sensitive and most emotionally charged social, ideological and political issues in Israeli life.
Here is a sampling of those cases:
* HJC 5016/96, Horev vs Minister of Transportation (1996)
Lior Horev and seven others petitioned against the Transport Minister's decision to close Rehov Bar-Ilan in Jerusalem to traffic during prayer time on Friday night and Saturday. The court, with minor exceptions, accepted the minister's decision on the grounds that it was reasonable because it took into account all the relevant considerations and balanced them properly.
In this case, Barak recognized the clash between Israel's values as a democratic and a Jewish state and expressed sympathy and understanding for the haredi point of view.
"The harm to the Ultra-Orthodox public's religious feelings ensuing from the free-flow of traffic on Shabbat in the heart of their neighborhood is severe, grave and serious," he wrote. "Indeed, to the religious Jew, Shabbat is not merely a list of the permitted and the forbidden. Rather, the observant Jew perceives Shabbat as a normative framework, intended to create a particular atmosphere. Our Rabbis, of blessed memory, described this special atmosphere as the additional soul which man is granted upon the entrance of Shabbat."
* HCJ 5100/94, The Public Committee against Torture vs Government of Israel (1994)
The court ruled that Shin Bet investigators did not have the right to use methods involving moderate physical pain to Palestinians suspected of terrorism. The methods included shaking (the forcible shaking of the suspect's upper torso, back and forth, repeatedly, in a manner which causes the neck and head to vacillate rapidly), the frog crouch, excessive tightening of handcuffs and sleep deprivation. The court ruled that a reasonable balance had to be found between protecting state security and the dignity and freedom of the suspects.
"A reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever," Barak wrote. The court ruled there was no existing law permitting most of the contested interrogation methods.
* HCJ 6698/95, Adel and Iman Ka'adan vs Israel Lands Administration (1995)
The Ka'adan family petitioned the court after their attempt to bid for a plot of land in the community of Katzir was rejected on the grounds that they were Arabs. The land, which was administered by the Israel Lands Administration, a government body, was given to the Jewish Agency for development. The Jewish Agency serves only Jews.
The petitioners argued that the government had violated the principle of equality. The government and the Jewish Agency argued that they were acting in accordance with existing law.
The court ruled that the government could not allocate lands to a body [i.e., the Jewish Agency], which discriminated. He also provided another formulation of his definition of Israel as a Jewish and democratic state. "It is true that the Jewish people established the Jewish state… But after the state has been established, it treats its citizens equally. Israel is a Jewish state within which live minorities, including the Arab minority. Every one of the minority populations living in Israel enjoys complete equal rights. It is true that a special key was given to members of the Jewish people to enter the home. But once someone is inside the home as a citizen, he enjoys the same rights as all other members of the household."
* HCJ 2597/99, Tais Rodriguez-Tushbeim vs Minister of Interior (1999)
In a seven to four ruling, the court, headed by Barak, ruled that a non-Jew who was not a citizen of Israel but lived here legally and studied Judaism in the Progressive (Reform) or Conservative movements in Israel, could convert in a Progressive or Conservative congregation abroad and be entitled to Israeli citizenship in accordance with the Law of Return.
The court rejected the state's arguments that every conversion abroad of an Israeli resident had to be examined to make sure it had been done according to the customs of the community. It also rejected the state's claim that non-Jews living in Israel must study for conversion in the special conversion school established in accordance with the aborted recommendations of the Ne'eman Committee and convert in special Orthodox conversion courts.
The decision was one of a long series of High Court rulings dating back to 1989, when it forced the Interior Ministry to recognize as Jewish an American immigrant who had converted to Judaism in a Reform ceremony in the US and had applied for immediate Israeli citizenship in accordance with the Law of Return. In another ruling in 1995, it rejected the state's claim that the chief rabbi of Israel was authorized to approve or reject all conversions in accordance with a British mandatory law. In 2004, it ordered the Interior Ministry to change the nationality (in reality, the religious denomination) entry in the Population Registry to "Jewish" of any Israeli resident who had studied Judaism in the Progressive or Conservative movements in Israel and converted in one of the movements' congregations abroad.
- D.I.
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