Aharon Barak at 90: His Judicial Legacy Under Threat
As former Supreme Court President Aharon Barak approaches his 90th birthday, his profound influence on Israeli law and democracy is being challenged by the current government's judicial overhaul efforts. Barak, who served for 28 years as a Supreme Court justice and president, and previously as Attorney General, is considered one of Israel's most impactful figures, shaping the nation's legal and social landscape.
Barak's legacy is built on three main pillars: the rule of law, the constitutional revolution, and judicial discretion. He championed the principle that all branches of government are subject to the law, with the judiciary as its ultimate interpreter. His "constitutional revolution" established fundamental rights, enshrined in Basic Laws, as superior to ordinary legislation, empowering the courts to strike down laws that infringe upon them. He also developed legal tools and interpretive theories to ensure judges could reach just outcomes, emphasizing concepts like reasonableness and proportionality.
Critics, such as former Supreme Court President Moshe Landau and former Justice Minister Daniel Friedman, warned against judicial activism and the expansion of judicial review, fearing it would overstep into the legislative and executive domains. However, the article argues that in Israel, judicial oversight is the primary, and perhaps only, significant check on governmental power. Removing this mechanism, it contends, would lead to dictatorship.
Barak himself has expressed deep concern over the current government's trajectory, warning that Israel is sliding from a liberal democracy towards an illiberal one, potentially ending in dictatorship. He reportedly advised Prime Minister Benjamin Netanyahu against appointing Yariv Levin as Justice Minister, instead suggesting Moshe Arbel from the Shas party, a former student. Barak also advocated for a plea deal for Netanyahu in his corruption trial to prevent societal division and urged the government to postpone its judicial reforms until after the next elections.
Despite the government's efforts to dismantle aspects of his judicial philosophy, the article notes that Barak's influence persists, citing a recent High Court ruling that reinstated the reasonableness standard for government decisions. However, it warns that if the government gains control over judicial appointments, these checks and balances could be lost. Barak is currently completing a new book, "Constitutional Remedies," which may become less relevant if the government's legislative agenda succeeds in diminishing the judiciary's power.
