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Looking back to 2016: “Israel’s Supreme Court strives to find right balance between security needs, civil rights”

Introduction: In the June 8, 2016 issue of The Jewish Post & News Myron Love reported on an event that had been held at Congregation Etz Chayim that May. The event was a presentation by an emissary of the World Zionist Organization by the name of Rotem Malach about the important – and balanced role, Israel’s Supreme Court had played in that country to that point. The article also delved into a documentary film about the tenure of Aharon Barak as President of the Supreme Court for an 11-year period, from 1995-2006. Barak is now held up as an example of a too activist, too liberal judge by those who would seek to emasculate Israel’s Supreme Court and turn it into nothing more than a handmaiden of Israel’s Knesset.
We thought it timely to republish that article, especially since Israel’s Supreme Court has been the subject of withering criticism by many right-wingers in that country.

Here is that article:
It is a real challenge in a democratic society in our current age of terrorism to find the right balance between civil liberties and the needs of security. In Israel, which has been living under the threat of terrorism throughout the country’s entire existence, there is an added layer to deal with in finding that balance between religious and civil law.
For Israel’s Supreme Court, finding that mean is akin to walking a tightrope – which happens to have been the theme for a presentation – on Thursday, May 19, at Congregation Etz Chayim – by one Rotem Malach. Currently based in San Francisco, Malach is the central emissary of the World Zionist Organization’s Department of Diaspora Activities for North American. His stopover in Winnipeg was part of a cross Canada tour to raise awareness of the role of Israel’s Supreme Court in “defending and shaping the Jewish and democratic identity of the State of Israel”.
The central part of Malach’s presentation was a showing of the documentary film, “The Judge”, which focuses on the life and career of Aharon Barak, who served on the Supreme Court for almost 30 years and served as President of the Court from 1995 to 2006. Barak’s interview during the film was also the only interview that he ever gave.

But first, some preliminaries. Malach noted that the court is staffed by 15 judges (although individual cases are judged by smaller groupings of judges). Judges in Israel are not political appointees, he said. The following are qualified to be appointed Justice of the Supreme Court: a person who has held office as a judge of a District Court for a period of five years, or has taught law at a university. Supreme Court Justices are appointed by a Judicial Selection Committee composed of nine members – including three sitting Supreme Court Justices (including the President of the Supreme Court), two cabinet min- isters (one of them being the Minister of Justice), two other Knesset members, and two representatives of the Israel Bar Association. The committee is chaired by the Minister of Justice.
As Malach pointed out, political persuasion (left or right wing, Conservative or (left or right wing, Conservative or Liberal, religious or secular, Jewish or Arab) plays no role in the selection. Current Supreme Court members include four women (one of whom is president) and one Christian Arab.

In the documentary, Aharon Barak comes across as a man of great courage and high principle who was focused on find- ing the right balance for the good of Israeli society. A child Holocaust survivor (he was hidden by a family in Lithuania), he first came to prominence in 1977 when, as Israel’s attorney-general, he prosecuted Leah Rabin for having an American bank account (which was illegal in Israel at that time) and forced Prime Minister Itzhak Rabin to resign.
As he noted in the interview, that case showed that no one in Israel is above the law.
At the Camp David accords, he was the primary Israeli negotiator in the negotiations that led to the Israel-Egypt peace treaty.
As a member of the Supreme Court and President of the court, he was involved in a number of controversial decisions, one example of which was ruling in 1996 that a certain main road in Jerusalem should be kept open on Shabbat outside of hours of prayer. That decision brought an estimated 400,000 Haredim on to the streets of Jerusalem surrounding the Supreme Court building to protest the decision.
Among other rulings during his tenure were that Israeli soldiers were not allowed to place Palestinian civilians in danger by having Palestinians knock on doors of houses that IDF soldiers were about to raid, and that the separation barrier (dividing Israel proper and Israeli communities across the Green Line from the Palestinian territories) is legal (with some minor modifications).

Following the film, Malach led his audience through a sheet with a series of statements about what is and isn’t legal in Israel. The answers were often surprising. For example, gay marriage, interfaith marriages and civil marriages are all legally recognized in Israel. The catch is that the marriages have to be performed outside of Israel because the rabbinate doesn’t recognize them.
Similarly, Reform and Conservative conversions are recognized in Israel despite the refusal of the Orthodox Rabbinate to recognize such conversions.
The sale of pork is also legal in Israel in certain areas.

“The values of human rights have a supreme legal status in the State of Israel,” Malach summed up, “and the Supreme Court of Israel is one of the strongest and most active courts in the world when it comes to protecting human rights.”

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