Wednesday, May 17, 2006

Anyone Doubt Aharon Barak Is An Activist?

Here's part of an email Aharon Barak wrote to a friend in Yale Law School dealing with his dissent in the recent case dealing with an Israeli law that bars Palestinian spouses from acquiring citizenship in Israel:

"My dear friend," wrote Barak. "You may be interested in a very important case which was delivered the day before yesterday [Sunday] by my Court... In my opinion, I decided that the right to family life is a constitutional right of the Israeli partner or his/her child. This right includes not just the right to marry, but also the right to live in Israel. I also decided that the statute discriminates against Arabs, since all those who seek family unification from the West Bank are Arabs. As we do not have a special section in our Bill of Rights dealing with family rights or equality, I decided that those rights are part of our right to dignity."
Ok, every single sentence reeks of activism. He "decided" that that the right to family life is a constitutional right. He "decided" that right is so broad it includes the right to live in Israel. He concluded that the law discriminates against Arabs because they are the people who seek family unification (in US Constitutional scheme that's called disparate impact and is not necessarily unconstitutional). And since that right is not in Israel's Bill of Rights (Israel has a Bill of Rights?), he "decided" that right is part of the right of dignity.

There are so many problems here. Even if a Basic Law establishes that there "shall be no violation of the life, body or dignity" why do basic laws supersede Knesset legislation? The US Constitution has a Supremacy Clause which makes the Constitution supreme and makes any legislation that conflicts with provisions in the Constitution void. What gives the Basic Laws such power?

Even if the Basic Laws were supreme, where in this basic law is there a right of family unification that encompasses the right to live in Israel? Oh I forgot, he "decided" it was part of human dignity. Really, are there are constraints on the Israeli High Court of Justice at all?

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