Friday, May 27, 2005

Column: Equal Protection???

I was asked the other day if I had seen a statement by Chief Justice of the High Court of Israel, Aharon Barak, to the effect that the “disengagement plan” (expulsion plan) of PM Ariel Sharon was a violation of human rights.

I went looking on the internet to find the statement, my mind racing with the question as to how this could be. I decided as I went along that Barak was simply providing cover for Sharon – giving lip service to the rights of the settlers (that would somehow “balance” the expulsion plan.) That must have been the idea. It couldn’t be that Barak had actually come out in defense of the residents of Jewish Gaza and Northern Samaria.

I found nothing in my search that confirmed the story but I did find something else of great interest which I will get back to in a minute. Frustrated, I inquired of the person that had told me of Barak’s purported statement if he could forward it along to me.

What I received confirmed my disbelief.

The attachment bore a quote from the Chief Justice from a case of some time back. The case is Ahmed Ajuri v. IDF Commander in West Bank. Here is the quote:

"The fundamental premise is that the displacement of a person from his place of residence and his forcible assignment to another place seriously harms his dignity, his liberty and his property. A person's home is not merely a roof over his head, but it is also a means for the physical and social location of a person, his private life and his social relationships... Several basic human rights are harmed as a result of an involuntary displacement of a person from his home and his residence being assigned to another place, even if this assigned residence does not involve him crossing an international border...

In a country where legal precedent holds more weight than political leanings, it would seem that we have here a ruling that should throw a huge obstacle in front of Sharon’s plan and would compel the Court (which never shirks from its activist duty in promoting the “highest values”) to defend the human rights of the settlers -- if only that were the case.

All that being said, let us return to what Aharon Barak actually did say last week – words that Americans might consider of extreme relevance during the heat of battle taking place in the Senate Judicial Hearings.

Among other things that he said – none of them having to do with the human rights of settlers -- Barak predicted that:

"… as in other Western countries, many public issues would find their way to the courtroom. “More and more political issues will take on judicial appearances and look to the court to decide them.” Saying this, he then looked at his new colleagues and said they were well prepared to accept the challenge. “It is our job and our responsibility,” he said, “whether or not we want it.”

More properly, he might have said, “whether or not the people want it.”

Before I finish I should add one more thing; a quote from Justice Robert Bork on the state of Judicial Activism (he calls Israel’s version “Judicial Imperialism”) in the High Court of Chief Justice, Aharon Barak.

"Israel is the supreme example of judicial imperialism securely entrenched. Bork writes: "Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. Imagine as well a supreme court that has created a body of constitutional law despite the absence of an actual constitution. . . . Israel’s Supreme Court has done them all."

Of course, what all this means for the Jews of Gush Katif and the Northern Shomron and all those that defend them is that there is no reason to think that there is the slightest chance that any help will come from a High Court which has found them and their supporters guilty of the worst of all things -- being on the wrong side of a “public issue.”


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