MK Israel Eichler (UTJ) once told me that late Justice Minister Tommy Lapid, father of the just-defeated prime minister Yair Lapid, took Eichler aside in the late 1990s and told him there were only two options left to the Ashkenazi class in Israel as the darker-skinned Jews and the religious appeared to be winning the demographic race and thus destined to finally rule the country: We could either send a column of tanks to Jerusalem and declare a coup, or usurp the powers of government through the Supreme Court. Be thankful we did the latter, Lapid the elder told the Haredi politician.
Some of that militant attitude was clearly evident in retired Supreme Court President Aharon Barak’s onslaught on Justice Minister Yariv Levin’s judicial reform (In 10 Minutes Justice Minister Levin Wipes Out Aharon Barak’s 30-Year Judicial Revolution) over three TV channels in one night, although this time around the victorious patrician who molested the right-wing enemies adopted the shrill tone of a victim. At 87, frail, surrounded by an abstract painting on an easel he must be very proud of, and a vitrine full of precious china (not grim shelves packed with law books), Barak reminded me of those white Russian landowners who congregated in Paris between the wars, selling off their silver samovars to pay for another night of wine and passion at the Pigalle. Past his prime? For sure. Defeated? Never!
Remember Tommy Lapid’s tanks? Barak went there in his opening lines: “Minister Levin collected all the bad proposals amassed over the years and connected them into some kind of chain that is strangling Israeli democracy, and the result, the product obtained as a result, is the abolition of judicial review in Israel. You have no greater evil than this as a constitutional revolution. The most parallel thing is a tanks revolution.”
Here is a partial list of the enormous changes Justice Barak interjected over the years into the Israeli justice system that completely altered whatever concept Israeli jurists and rank-and-file citizens had of the domain of the court:
- Expanding the right of standing before the High Court of Justice from petitioners who were directly harmed by government action to practically anybody, opening the High Court’s doors to professional petitioners, many of them representing anti-Israeli NGOs.
- Expanding the court’s use of the reasonableness argument, freeing judges to disqualify perfectly legal government action because the judge didn’t deem it reasonable.
- Expanding the judgment pretext, which removed the boundaries on issues in which the court would normally not intervene.
- Usurping the right to revoke laws, which was a constitutional revolution that gave the judicial branch complete superiority over the other two branches of government.
- Empowering the legal councilors attached to each government minister, as well as the Attorney General, to thwart unwanted legislation before it saw the light of day on the argument that it would be struck down by the High Court.
- Establishing, particularly in tax law, the dogma that following the deduced purpose of a law is more important than adherence to the actual language of the law. This essentially permitted judges to create their own laws regardless of what lawmakers legislated.
- Finally, Barak was on the panel that acquitted Treblinka death camp guard John Demjanjuk, a.k.a. Ivan the Terrible, who was involved in the murder of tens of thousands of Jews.
“We’re not talking in theory, we’re not talking about questions of Knesset-Government-Court. No, it’s not about Knesset-Government-Court, we’re talking about you, your rights,” the 87-year-old former chief justice said straight into the camera, his old man’s voice rising to a high note. “Jewish, Arab, Haredi, non-Haredi. The rights of each of you, according to this proposal, are in danger, a great danger. There is no one to protect them.”
So said the Supreme Court president under whose rule some 10,000 Jews were expelled from their homes in the Gaza Strip and northern Samaria without a national referendum. When then-Prime Minister Ariel Sharon tried to get his plan through the Likud Party, the members rejected it. So, Sharon left Likud and started a new party, that’s how committed he was to destroying Jewish lives.
In 2018, former Supreme Court Justice Eliyahu Matza explained the High Court ruling that rejected the appeals against the “disengagement plan,” saying that “it was a political act that was acceptable to most parts of the public.”
Defend the rights of minorities? Put an injunction on a plainly illegal government action? Not the Barak court. The best they could come up with was to compel the Sharon government to increase compensations to some of the exiles.
But this morally bankrupt man truly believes that he is the victim of a revolution after doing so much for the suffering masses.
The ultimate Jewish mother-in-law (never mind, I’ll sit in the dark), constitutionally incapable of accepting responsibility for the historic processes which led to Minister Levin’s fundamental (some say not fundamental enough) course correction, Barak is tragic-comic in his final, simply outrageous, statement: “I’m sorry that they see me as an enemy of the people. I always thought that I was serving this nation, that I was doing everything I could, and that the rulings I gave, thousands of them, were judgments that connect with our history, with our Zionism, with our security.”
And the peak of chutzpa: “I don’t see myself as an activist by any means, I don’t see myself as a conservative by any means. So, I’m sorry that you think I caused this problem. If they thought that killing me would stop all this upheaval, then I’m ready to face the firing squad.”
No need for that, Mr. Chief Justice. We’ll just reverse you.