Supreme Court President Aharon Barak sent an e-mail to a colleague of his who is a lecturer at Yale University. Perhaps Barak did not intend his letter for public reading, but it can be expected that the president of the Supreme Court knows to whom he can write a letter and know his correspondent will keep it a secret. Barak erred, and the letter came into the hands of Haaretz reporter Yuval Yoaz, who published it. Perhaps Barak took this possibility into account. Perhaps, deep in his heart, he even wanted this to happen. In any case, as someone who is a great believer in freedom of expression, it can be assumed he likely won't have complaints about the publication of his letter. It is of great interest to the public.
It is, however, possible to wonder about the matter of the addressee. Apparently Barak felt the need to explain the court's decision regarding the Citizenship Law to the professor from Yale more than to the public in Israel. His choice arouses the suspicion that perhaps it is more important to him to find favor with Yale professors, with whom he spends several months a year, than with public opinion in Israel, the moral priorities of which are considerably different.
Barak has tried to have his cake and eat it. At Yale he wanted to preserve the image of the enlightened jurist, despite the drastic decision handed down by the court he heads. Hence the apologetic tone of his letter: "I devoted much time and energy to writing my opinion and to the attempt to persuade my colleagues, the justices," he writes, as though this makes any difference. The fact that he remained in the minority does not change the fact that he is responsible. The moment the decision was made, Barak is a partner to it. This is the nature of collective responsibility.
Instead of accepting responsibility for the court's ruling, Barak is trying to detract from its value. The Supreme Court has handed down, under his leadership, a clear and unambiguous ruling, one of the most embarrassing in its history. He has approved a racist law that discriminates against some of the country's citizens and denies them the basic right to have a family life in their country. It is with good reason that the editorial in this newspaper defined the decision as "Supreme disgrace" (Haaretz, May 15). Barak's attempt to minimize the ruling on the grounds that it was only a "technical loss" and that "in substance, there is a very solid majority for my view in the Supreme Court" is reminiscent of the excuses offered by a soccer coach whose team has lost. A "technical loss" or "in substance" - the bottom line is that the court rejected the petition to revoke the amendment to the Citizenship Law, which prohibits unification of the families of Palestinians and Arabs who are citizens of this country inside the boundaries of the State of Israel. This is the only significance of the decision and it reeks of racism. Barak knows this and he is trying unsuccessfully to blunt the evil decree and hide it behind a smoke screen.
The attempt to minimize the importance of the ruling on the grounds that it is valid for only a short period is ridiculous. The ruling is liable in fact to spur the Knesset to pass legislation in the spirit of the court's decision. Barak's excuse that "the 11th judge," Supreme Court Justice Edmond Levy, agreed with him but refused to sign his conclusion that the law is unconstitutional, as it is supposed to lapse in two months' time, is pathetic. Levy voted in favor of rejecting the petitions, his vote tipped the scales against the court and all the rest means nothing. What difference does it make what Justice Levy said? What matters is how he voted.
No less perplexing is Barak's attempt to rely on the words of Justice Minister Haim Ramon: "The justice minister announced this morning," writes Barak, trying to reassure his colleague, "that if the Parliament tries to enact again the statute without any change, there is a high probability, according to the views of the court, that the statute will be unconstitutional." Why does the president of the Supreme Court need to rely on the justice minister in a matter of future decisions of his court? Perhaps he has forgotten that he is not yet a legal commentator but rather the president of the Supreme Court. The majority of the Supreme Court justices do not think like Barak, but rather like Justice Miriam Naor, who ruled that "the constitutional right to a family life does not include the right to realize family life specifically in Israel."
This annoying and scandalous formulation of someone who has "a family life" in Israel is a far more accurate representation of the court's portrait than all of its president's elevated words and convoluted excuses. It is not difficult to guess how Justice Naor would react if a court in Europe were to issue such a ruling with respect to Jewish citizens. The court's ruling continues a long tradition of systematic folding before considerations of "security" and "demography," real and imagined. Human rights, constitutionality and proportionality are, in its eyes, relatively inferior values. A court that refrains from taking a stand on the matter of the settlements and the targeted assassinations, that does not prevent mass demolition of homes and that has for years evaded taking a stance on the matter of torture is a court that is not courageous and is tainted with the curse of the occupation. This is Barak's true legacy, this is the court he will leave behind him and no e-mail to Yale will succeed in blurring its face.
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