Distinguished Israeli Jurist Receives 2006 Justice Prize

BY REBECCA AGULE

President Barak speaks at HLS.
President Barak receives the Justice Prize from Peter and Patricia Gruber and Dennis Archer.

Aharon Barak, the recently retired President of the Supreme Court of Israel, received the Peter Gruber Foundation 2006 Justice Prize on September 21 in the Ames Courtroom, amid trumpets and standing ovations. The ceremony began with laudatory remarks and closed with a question and answer session.

Foundation President Patricia Gruber opened the proceedings by introducing her organization and the Justice Prize. Ms. Gruber and her husband, Peter Gruber, created his namesake foundation in 1993. Based in the Virgin Islands, the Foundation makes grants for youth, community, and educational initiatives. In 2000, the Foundation also began recognizing international leaders in the areas of Cosmology, Genetics, Women’s Rights, Justice, and Neuroscience, conferring gold medals and unrestricted $250,000 awards.

Ms. Gruber listed former prize recipients, including Dató Param Cumaraswamy, Malaysian attorney and UN Special Rapporteur on the Independence of Judges and Lawyers; Chief Justice Arthur Chaskalson and Deputy Chief Justice Pius Langa, both of whom sat on the South African Constitutional Court; and Fali Sam Nariman, a member of the Indian Parliament, Senior Advocate in the Supreme Court of India, and President of the Bar Association of India.

Law School Dean Elena Kagan praised Barak, who spent time at Harvard as both a post-graduate and a visiting professor. Recalling her dinner with him the night before, Kagan talked about Barak in relation to other justices who have emerged from HLS. “[Barak] is my judicial hero,” Kagan said. “He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”

After Kagan’s remarks, Ms. Gruber thanked Harvard for making the event a success and introduced her husband, who outlined his own perspective of the law as a predicate to justice. “The objective of law is justice,” Mr. Gruber said. “Justice redresses the arbitrary use of power by an individual or by a group. [The Justice Prize promotes] the advancement of law towards a broader justice, the emergence of more rights for every human being.”

Each year, an award panel identifies those who have made “significant contributions in the area of justice and whose efforts and accomplishments have furthered the cause of justice as delivered through the legal system.” The 2006 panel consisted of Justice Rosalie Silberman Abella, of the Supreme Court of Canada; attorney Dennis Archer, former American Bar Association president and former Mayor of Detroit; attorney Giuseppe Bisconti, of the Rome-based Studio Legale Bisconti; attorney Martin Lee, of Martin C.M. Lee, and retired Supreme Court of the United States Justice Sandra Day O’Connor.

Panel members Abella and Archer attended the ceremony, speaking of their own distinct appreciation for Barak’s perspective. Abella described Barak as “jurisprudentially ambidextrous,” noting his talents as key in both the Camp David Accords and the granting of constitutional ascendancy to the Basic Laws, which form Israel’s political and legislative structure in lieu of a formal constitution. “A judicial career has ended and a judicial legend has started,” said Abella in closing. “I am proud to be his friend.”

Archer followed Abella’s remarks, emphasizing the personal risk Barak endured throughout his term. “You are outstanding in what you did,” Archer said. “You remind us all of the rule of law, of personal sacrifice, and the importance of standing up for what is right.”

“Barak is a person of outstanding courage and principle who has devoted his life to the promotion of justice and the just rule of law,” Archer continued, quoting the Foundation’s official citation of Barak’s award. “At great personal risk, he has been a towering figure in protecting democratic values, human rights, and the independence of the judiciary.”

Mrs. Gruber returned to the podium, introducing Barak, and before he spoke a word, the audience greeted him with an extended standing ovation. Clearly moved by this tribute, Barak began by expressing this sentiment. “I feel immense gratitude,” Barak said. “Indeed I feel honored, humble and deeply moved to stand along side those who have preceded me.”

Born in Lithuania, Barak survived the Holocaust, escaping with his family to Israel in 1947. Barak received both his MA and his doctorate from the Hebrew University in Jerusalem, before commencing his Supreme Court service. His seat lasted twenty-eight years, eleven as President.

A noted supporter of an activist judiciary, Barak advances a dynamic view of law and justice, intertwining both with the realities of life and government. “The history of law is the history of adapting law to life’s needs,” he said. “Stability without change is degeneration. Change without stability is anarchy.”

Barak put his own judicial role within this context, as well. “A judge does not operate in a vacuum,” Barak said. “A judge is part of society, and society affects him.” He emphasized that judges must act objectively, but also humanized the judiciary, noting that every justice has experiences and values that impact their perspective. “Even when we look at ourselves from the outside, we do so with our own eyes,” Barak said. “We need not go from extreme to extreme. Rejecting extreme objectivity does not require we embrace complete subjectivity.”

Barak helmed the Supreme Court of Israel through the Second, or Al-Aqsa, Intifada. These circumstance shaped both his rulings and his outlook. Realizing the distinctiveness of Israel’s situation and form of democracy, Barak explained the special role of judges under such conditions, setting them as protectors of rights in a land that lacks a rigid constitutional framework.

“Judges meet supreme tests in times of terror,” he said. “If we fail in our role in times of terror, we will be unable to fulfill our role in times of peace and security. The Basic Laws do not recognize two sets of laws, one that applies in times of peace and one that applies in times of war.”

Kagan moderated the question and answer session, during which one audience member asked Barak to reconcile his statements in support of human rights with the current situation in Israel, commenting specifically upon the right to spousal reunion, targeted assassinations, and expulsion. “In order to answer you, I have to put the record straight,” Barak said, correcting facts in several of the questioner’s statements. “I am not making any political stand on the occupation of the West Bank and Gaza,” Barak said. “But the human rights of those persons should be protected, and we have exercised judicial review to protect those rights.”

“My court does its best to check [humanitarian law],” he said. “We have every year 300 cases coming from the West Bank and Gaza. In some cases we do well, and in some cases we make mistakes. But the percentage of our mistakes there is the same as our percentage of mistakes in Israel.”

Kagan presented the final question, asking Barak to critique the performance of American courts in dealing with terrorism, and what he believes should be done differently.

“I think they are moving on the right path…too slowly,” he answered. “Too many obstacles are in the way. Some of them are the product of history, of federalism, of fear that if we make this step, something terrible will happen. The answer is to go on this road but to make it much quicker. They are going slowly. We are going very quickly, and we will look behind us and say, ‘Come on.'”

In closing, Barak expressed his own thoughts on the United States Supreme Court.

“We judges all over the world look at what the American court is doing,” Barak said. “And I think they should realize that their audience is not just Americans, but it is the whole judiciary all over. My feeling is that what I am saying now suddenly penetrates. The judges realize what is at stake, and it is not September 11, but the whole future of th
e rule of law in American and the rule of law in other countries.”

As he continues to write judgments, Barak did not conduct official media interviews.

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