And justice for all

Guided by lessons learned in the Holocaust, Justice Aharon Barak revolutionized the face of Israeli law.

aharon barak thought 88  (photo credit: Ariel Jerozolimski)
aharon barak thought 88
(photo credit: Ariel Jerozolimski)
Guided by lessons learned in the Holocaust, Supreme Court Chief Justice Aharon Barak revolutionized the face of Israeli law - at times sparking massive controversy in the process. An in-depth retrospective of the Barak era and the man behind the mind. Supreme Court president Aharon Barak, who retired this week after 28 years on the bench, was 41⁄2 years old when the German army invaded his home town of Kovno, Lithuania, in June 1941. For three years, the young boy lived with his parents, Leah and Zvi, in a one-room apartment in the Jewish ghetto, while all around him thousands of Jews, including most of the children, were rounded up and murdered by the Nazis or rampaging Lithuanian mobs. In March 1944, German soldiers and Lithuanians came after the remaining children, killing 1,200 in a single day. Mother and child barely escaped the massacre. That day, Leah decided to smuggle Aharon out of the ghetto as quickly as possible. Naomi Levitzky provided details of the escape in her book His Honor ("Kvodo"), the only biography of Barak that has been written so far. Zvi heard about an acquaintance who had been in touch with a Lithuanian farmer who was prepared to supply a hiding place outside Kovno. In order to pay him and the guards that would have to be bribed, the couple sold whatever possessions they still had. One day, after the arrangements had been finalized, Leah and Zvi stuffed their son into a burlap bag and had it placed on a pile of identical bags filled with German army uniforms manufactured by the ghetto Jews. Each day, a portly German soldier drove the factory's production out of the ghetto on a horse-drawn wagon. Leah had warned her seven-year-old son not to make noise during the trip. After the wagon had been loaded, the driver grabbed the sides of the wagon and leaped aboard, landing on the bag containing the child. Aharon did not utter a sound. Leah herself managed to slip out of the ghetto on the same day. She obtained false working papers and joined a group of forced laborers employed outside the ghetto. The guards had been bribed in advance to overlook the false documents. The Lithuanian farmer who had arranged to hide mother and son had told them where to meet. In her description of the escape, Levitzky does not explain how Aharon was taken from the German army wagon. In any event, Leah and Aharon, still in the burlap bag, did meet and the farmer picked them up and took them to his home. This, however, was not the end of their travails. They moved twice more before finally finding shelter with another farmer, who hid them until the Soviet army pushed the Germans out of Lithuania. Of the 30,000 Jews who entered the Kovno ghetto in 1941, only 3,000 survived the war. Barak's father, who was in the ghetto when the Germans burned it down, was one of them. Another of the Kovno survivors was Avraham Melamed, a longtime MK for the National Religious Party. As fate would have it, Melamed was a member of the Judges' Selection Committee which appointed Barak to the Supreme Court in 1978. "Melamed," wrote Levitzky, "lifted up his wine glass and said: 'Who would have believed that the day would come when I would sit here, in the office of the minister of justice of the Jewish state, and appoint you, a small and wretched child suffering from malnutrition in the Kovno ghetto, to be a justice of the Supreme Court? This is proof that Hitler did not succeed.'" Many years later, in an address to a conference at Yad Vashem, Barak spoke about the impact of his wartime experiences on him as a human being and a judge. "I ask myself, what are the lessons I learned," he told the audience of survivors. "First of all, the centrality of the State of Israel. I believe with all my heart that had we had a state at the time, the things that happened to us would not have happened, or would not have happened the way they did. For me, the state is the fulfillment of the dream of generations. It is the hope, the thing we dreamed about for thousands of years and finally realized. But it is not to be taken for granted. Anti-Semitism is not some faraway thing as it was for my children. For me, anti-Semitism is part of me, part of my struggle for survival. Thus, on the one hand, the centrality of Israel, the importance of Israel's security considerations. When I hear about security considerations, they are very important to me. I believe in them. "The second lesson I learned is, to some degree, a contradictory one, and that is the importance of the individual, the human being. The importance of individual freedom. What the Germans tried to do was not only to kill us as a collective but also to destroy our dignity and turn us into 'human dust.' And from here stems my belief in the centrality of the human being, every human being, Jewish and non-Jewish. "I was saved by a goy who did not receive a single penny for his deeds and endangered his four children. The centrality of the freedom of the individual here as Jews and as Arabs who live with us. They are the minority here, just as we were there. We must not forget this and those of you who are familiar with my rulings know how important to me individual freedom is. I have written about it endlessly." There is virtually no one who is familiar with Barak's legal career, admirers and detractors alike, who does not acknowledge his exceptional brilliance. "He is the greatest jurist Israel has ever produced," says constitutional expert Susie Navot, a lecturer at the law faculty of The College of Management, Academic Studies Division. "He is the greatest jurist of his generation on an international scale." Even MK Avraham Ravitz (United Torah Judaism Party), who has to look over his shoulder at his constituency before daring to say a good word about the Supreme Court, told The Jerusalem Post, "Barak is a national asset. I have read many books and articles about him. He has won international esteem for the scope and liberalism of his work, and he can, at the same time, hand down a ruling like the Rehov Bar-Ilan decision [prohibiting traffic during Shabbat prayer hours]. I am not sure his successor, Dorit Beinisch, will have the strength to confront liberal terrorism." BARAK WAS born on September 16, 1936. After Lithuania was reconquered by Soviet troops in 1944, his family tried to reach the West. The Soviet regime did not allow Lithuanians to leave the country and so they escaped under false travel documents indicating that they were Greeks who were being repatriated. After many harrowing experiences in Eastern Europe, which was under Soviet control, they finally reached Western-occupied Austria. After spending time in Rome, the Barak family reached Haifa in 1947. A few months later, they moved to the Rehavia neighborhood in Jerusalem, where Barak still lives. After a year in primary school, he began studying at the prestigious Hebrew University High School, commonly known as "Leyadha." After graduation, Barak received a military deferment to study law at Hebrew University. During that time, he became an officer and insisted on taking the combat officers' training course as a matter of principle. Barak graduated in 1958 and served in the IDF in the office of the chief of General Staff's financial adviser between 1958 and 1960. He then returned to law school to complete his doctorate and apprentice as a lawyer. In 1963, at the age of 27, Barak graduated and began to teach at the university. One of the turning points in Barak's professional career occurred in 1966, when he and his close friend, Yitzhak Zamir, spent a sabbatical at Harvard. Barak told Levitzky that for the first time he studied the theory of legal process, under Harvard professor Henry Hunt. Barak said he adopted the principles of Hart's theory and they shaped his philosophy regarding the role of a judge in democratic society. During his year there, he also learned the American system of teaching law, which focused on teaching students how to analyze and solve legal problems rather than learn them by rote. Later, he and Zamir and the other full-time lecturers at Hebrew University adopted this method and revolutionized the teaching system. Barak himself was a particularly popular teacher. He has said of himself that he does not know whether he made a good judge, but is certain he was a good teacher. In 1968, after returning from Harvard, Barak became an associate professor, specializing in private law. Four years later he became a full professor and in 1974, at the age of 37, was chosen dean of the law faculty. In the meantime, he spent two years in New York as a member of a team appointed to prepare an international treaty on bills of exchange on behalf of the UN. During these years, he gained experience in the diplomatic and social skills required of an international player and forged ties with important figures all over the world. His formal academic career came to a sudden and unexpected end in May 1975 when justice minister Haim Tzadok, whom he barely knew, asked him to succeed Meir Shamgar as attorney-general. For the first time, Barak became nationally known. He proved his mettle by standing up to severe political pressure in insisting on the investigation and prosecution of senior figures in the governing Labor Party, including Asher Yadlin, Avraham Ofer and, finally, the prime minister himself, Yitzhak Rabin, and his wife Leah. In confronting these powerful politicians, Barak insisted on the primacy of the rule of law. As a Supreme Court justice, he was to take this principle to higher levels than the court had ever gone before, winning friends - and making enemies - in the process. After the Labor Party lost the 1977 elections, Barak played a crucial role in the peace talks between the government of prime minister Menahem Begin and Egyptian president Anwar Sadat. Almost immediately after the signing of the Camp David Accords in September 1978, he was appointed to the Supreme Court. He was 42 years old at the time, and knew from the outset that he would one day be its president. ACCORDING TO Navot and Hebrew University law professor David Kretzmer, Barak revolutionized the country's entire judicial system, not only by almost single-handedly consolidating the constitutional revolution, but also by establishing new criteria for assessing the legality of administrative actions and by dramatically expanding the scope of judicial standing and justiciability. These theoretical constructs and the way they were implemented by the Supreme Court in real life situations triggered enormous controversy not only among law academics, but also among politicians and large segments of the population. Be that as it may, "Barak is a multi-functional person, an academic who is brilliant in every field of law," concluded Navot, a self-professed admirer. "He developed every field and made a huge contribution. The world of law in Israel today is completely different from what it was before, not only in terms of its breadth, but also in its depth and values," says Navot. Underlying the new constructs and practical changes that Barak instituted during his academic and judicial career was his theory of judicial interpretation, which was no less controversial than the practical innovations it led to. During his years on the bench, Barak, ever the academic, wrote a five-volume series on the question of interpretation, each volume consisting of some 1,500 pages. According to Barak, every judge must interpret the law. The judge must do more than simply identify the law that applies to the case before him and rule in accordance with its provisions. Sometimes, the law instructs the judge to use his own discretion. Other times, the instruction is implied. In both situations, the judge may have to use his own discretion, because the law allows for more than one solution. "In such cases, the judge does not rule according to what the law states, but actually creates the law himself," he wrote. This is "judicial legislation. This creation explicitly expresses the law when the language of the law offers more than one choice and the rules of interpretation cannot help, without assistance from the judge's own discretion, make the correct one." Barak explained why it is not always possible to apply objective rules of interpretation and why it is often preferable not to. "Even if we could reduce to a minimum the extent of judicial discretion, would we want to?" he wrote. "Isn't it desirable in removing the uncertainty to include a 'human factor' which is capable of comparing the result with the aim? Tossing a coin will remove the uncertainty in every case. Is that the kind of rule of interpretation we want? Judicial discretion is integral to adjudication. Without it, it is like a body without a soul." Can the judge act objectively in applying judicial discretion? Barak believes he can if he acts in the following way. "The tests of objectivity oblige the judge to give expression to the fundamental values of the society rather than his own subjective values, as different as they might be," he wrote. "The objective foundation does not oblige the judge to express the temporary and the fleeting. He must give expression to what is central and fundamental. Indeed, when a given society is unfaithful to itself, the test of objectivity does not oblige the judge to give expression to the winds of the day. He must confront these winds and give expression to the basic values of the society in which he lives and to his own credo." Essentially, Barak believes that not only can a judge separate himself from his own values and opinions, but that, through his professional training and experience, he is capable of knowing what are the true and underlying values of society and of acting accordingly. Needless to say, this definition of objectivity has fueled the criticism against him. Barak's belief in a flexible system of legal interpretation, which includes the possibility of more than one choice and the application of judicial discretion, provided the foundation for the revolutionary decisions that he made. LAW PROFESSOR Kretzmer asserts that Barak carried out four revolutions during his years on the bench. In the first phase, he made sweeping reforms in private law. He then overhauled the system of public law. After the Knesset passed the Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation, he carried out the constitutional revolution. Finally, in his last years on the bench, he focused his attention on international law, defining its normative basis and establishing its theoretical underpinnings. It was in the realm of public law that Barak first sparked national controversy. The foundations for the rulings he made in this sphere were based on three innovations that he introduced with the strong support of Shamgar, the Supreme Court president. The first dealt with standing, the second with justiciability and the third with the tests of reasonableness that he introduced. Standing is the term used to determine who has the right to petition the High Court. Until Barak joined the court, standing was restricted to a citizen who felt he had been personally injured by an act of state. Justiciability is the term used to define what issues can be heard in court. For example, can the court rule on foreign policy or internal Knesset procedures? His first landmark decision, in which he explained the concept of reasonableness, was handed down in HCJ 389/80, Yellow Pages vs The Israel Broadcasting Authority. Yellow Pages petitioned the court against an IBA decision not to hold a public tender for a provider of commercial broadcast services because it was satisfied with the company that was currently providing them. Although the IBA was not obliged to publish a tender, it had drawn up an internal directive stating that it should normally do so. Since the regulation aroused the expectations of outside companies, the Authority was obliged to abide by it unless it had good reason not to. Until then, the courts were loath to intervene in the decisions of the government administration and did so only in cases of blatant misconduct, including discrimination, cronyism and so on. In the IBA ruling, Barak argued that the court could judge a decision not only on grounds of malfeasance but also according to whether the decision was reasonable or not. He also provided the methodology for determining the reasonability of an administrative decision. As was his custom in judicial rulings, Barak laid down the principles of his new theory while rejecting the petition itself. He did this in many cases, letting the public get used to his ideas before applying them. The principles of reasonability as defined by Barak included the following: "Unreasonability is grounds in itself to nullify an administrative decision. Unreasonability is judged on the basis of objective criteria. In order to nullify an administrative decision, unreasonability must be of a substantial or extreme degree. The principle of reasonability leads to the nullification of an administrative decision which does not give the proper weight to the different interests that the authority must take into account when it makes its decision." The introduction of this principle meant that the court had a new and powerful tool to investigate the activities of the government apparatus. In other words, it had a much wider legal basis to intervene in administrative decisions. At the same time, it meant that a court decision to nullify an administrative act on grounds of unreasonableness would be less obvious than grounds of improper conduct, and, therefore, less comprehensible to the public at large. By itself, the principle of unreasonableness would have had a limited effect on the power of the Supreme Court. The reason for this was that in the three decades prior to Barak's appointment, only individual citizens who had a direct grievance with the government administration could petition the High Court of Justice for remedy. Furthermore, the court refused to intervene in many spheres of public life including security matters, internal Knesset procedures, the decisions of the attorney-general and many other subjects. Barak changed all that. Expanding the notions of standing and justiciability were the other side of the same coin that now included the principle of reasonableness. If, on the one hand, the court now had greater leverage to intervene in administrative decisions, he would see to it that the public would have greater access to that leverage and that the leverage could be applied to many more areas of government activity than before. Years later, Barak told the Knesset Law Committee how he first came to consider expanding the notion of standing. When he served as attorney-general under prime minister Yitzhak Rabin, and learned about Leah Rabin's illegal dollar bank account, he saw no alternative but to indict the couple. However, finance minister Yehoshua Rabinowitz told Barak he would let Rabin off with a fine to spare him from criminal charges. Rabinowitz added that he would do that so the scandal would blow over and not affect the Labor Party's fortunes in the upcoming elections. Barak said the tactic would never pass the scrutiny of the High Court. Rabinowitz reminded him that no one had standing in the affair. Therefore, no one could petition. "I said to myself," Barak told the committee, "that if ever I am able to have an influence, the standing rules must be liberalized. It cannot be that only someone with a direct interest" (can petition the court).