Pre-Rosh Hashanah Blog 2023/5784- From Israeli Supreme Court to the Israeli National Soccer Team

There are so many things going on in Israel that it is difficult to keep up.  It would be nice to leave my law career and  become a full-time blog writer - but things are busier than ever in my real world -  so don't hold your breath waiting for that to happen.  That (and maybe some travelling) explains the limited number  of articles that I have written lately.  But as Rosh Hashanah approaches - I just could not avoid writing about yesterday's Supreme Court hearing - one of Israel's most monumentous days in its 75 year history - from a legal point of view.  I will try to keep my discussion of the hearing reasonably short and touch on a  few other topics as well before wrapping up with some Rosh Hashanah thoughts.

Supreme Court of Israel Hearing on "Reasonableness"

It would probably take a 10 page blog, at least, to cover this properly but here is the relatively short version.

The Israeli Supreme Court consists of 15 judges.  In most cases, only some of the judges sit in panels for hearings.  The Chief Justice, along with other members, selects the number of judges, in odd numbers to hear cases.  Usually, it is not more than 11 judges, for very serious issues.  So for example, earlier this year, 11 judges sat together to decide whether Aryeh Deri, the thrice  convicted fraudster, could serve as a cabinet member in the  current government.  The ruling was 10-1 against Deri.

As I understand it, yesterday was the first time in Israeli history where all 15 judges took part in a hearing.  For those interested in legal issues - this was like a national championship event of Supreme Court advocacy.  Don't  worry I will  tie in the sports analogy a bit later.

As you might recall, maybe even from reading one of my previous blogs, the current Netanyahu government passed a "Basic Law Amendment" which removes the power of the Israeli Supreme Court to quash (void or nullify) government actions and decisions on the basis of extreme unreasonableness.

There is a long history about how the Supreme Court of Israel came to have this power but it has been a part of Israeli jurisprudence since  the 1950s.  As you may know, Israel does  not have a written  constitution but does have a series of "basic laws."  The short version of all of this discussion is that the Israeli Supreme Court, over time, expanded its jurisdiction to conduct "judicial review" of other legislation using the  "basic laws" which it elevated to quasi-constitutional status.  This means that the Israeli Supreme Court decided (led by then  Chief Justice Aharon Barak) that it had the power to cancel laws or decisions put forward by the Knesset if they violated the basic laws.  One of the main tests was whether the law or action proposed was "extremely unreasonable."  This has been part of the Israeli legal landscape for more than  20 years and maybe closer to 30.  The Supreme Court views this power as one of the checks on the power of a Knesset majority government - which could, otherwise, effectively enact any laws or measures, including those which might trample on the rights of minorities.

But unlike the situation in Canada, for example, where there is a written  constitution that gives the Supreme Court these  powers expressly, the Israeli Supreme Court accrued these powers over time, through precedent, or "took them" as opponents might say.

So the current Netanyahu government decided to try and "set the clock back" or, in other words, overturn 30 years of judicial precedent by enacting a law to reduce the powers of the Court.  They called it a "Basic Law Amendment" to try and give it quasi constitutional status.

Opponents of the legislation  brought a petition to the Supreme Court to strike the law.  In another  bizarre historical first, the Israeli AG is supporting the petitioners and the government retained its own private lawyers.

So yesterday, the Supreme Court conducted a marathon 13 hour session to  hear arguments about what they should do. 

As you might know from reading my blogs - this  type of constitutional, academic, political, philosophical hearing - is the type of hearing that I would have loved to watch and hear (if  not participate in) in its entirety.  Alas I was swamped with other deadlines - and could only watch and listen to parts of it.   But it was riveting!  

Some of the  questions being  discussed....

Where does the  Israeli Supreme Court derive its power to overturn government legislation?

How are the rights of minorities protected in Israel?

How can  the Basic Law be amended? 

Where is the proper balance in a modern democracy between the legislative arm and the judicial arm of government?  

If you weaken the judiciary - is it only the voters that can "oversee" the legislature?

My "short" summary is that I have no idea what the Court will do with this.  It is extremely difficult and complicated and there is no easy answer.  One popular prediction is that the Court will send it back to the Knesset with a need for "amendments" but won't strike  it out entirely.  I do think it will be a split decision and we may wind up with as many as five or six different opinions.   It is almost certain that there will be several hundred, if not thousands of pages to read. 

Apparently, we  can expect a decision within two months, so maybe I will  write  a longer blog analyzing that when in comes out.  I could go on and on about the  hearing but  it would take  me a full day and I'm not even sure you would want to read all of it.  Some of you might...

One of my "mentions of the day" which has attracted quite a great deal of press attention in Israel - is the Netanyahu government's lawyer Ilan Bombach, who asserted that Israel's "hastily drawn Constitution" does not give the Supreme Court the rights it has exercised over its history.  That led to a heated and fascinating exchange.  There is a bit of truth to what Bombach asserted but far more rhetoric, exaggeration and spin than truth, in my view.  We will see if his advocacy approach was effective.  In my  experience, one has to be cautiously assertive, even forceful, while trying to avoid insulting the judicial panel hearing the case outright - but then again, I'm not the one appearing at the Supreme Court.

Sports News

On the same day that the Supreme Court had its hands full - the Israeli National Soccer team played a huge game against Belarus - in its ongoing campaign to earn a spot in the 2024 Euro Soccer Tournament.  A few nights before, Israel had eked out a tie against Romania.  Israel still has to play four more  games - two relatively "easy" ones -  two more difficult.  Sometimes the "easy" ones are the hardest to win.  The games will be  played in October and November - and will determine whether  Israel earns a spot  in the  June 2024 tournament.  From my research, it looks like Israel has not actually played in a major world  soccer tournament since 1970.  There is still a long way to go  but Israel's late goal victory over Belarus yesterday was a huge step forward for the Israeli side.  So the Israeli soccer team was playing some of its most meaningful soccer ever while the Supreme Court was hearing one of its most consequential cases.   Did that tie it in enough?

Entertainment

I was hoping to watch the latest "Jewish Double Header" that so many people  are talking  about - "Golda" and  "You are so not invited to my Bat Mitzvah."  I wanted to include discussions  of both movies in my blog - but that will have to wait until next time.  Very different types of content, of course, - but I'll let you know if there  is a way to tie the two together - other than temporal proximity of their respective release dates and the fact that there is  some  type of Jewish theme or content to both movies.  If you have seen one or both, I welcome all comments.

Podcasts

I used my subway and airline travel time rather productively in June and  July and into  August and listened to all 70 episodes of an Israeli podcast called "The Party of Thoughts."  This is a political, philosophical podcast that addresses contemporary (and not so contemporary) issues in Israel including the nature of the country as a  Jewish and democratic country, competing philosophical ideas about modern democracy, the Israeli-Palestinian conflict and many other issues. It is led by Micah Goodman, a research fellow at the Shalom Hartman Institute, and Efrat Rosenberg Shapiro, an excellent and very experienced moderator.  In Hebrew, it is called "Mafleget Hamachshavot" and is available on Spotify.  Goodman and Rosenberg try to  explain different sides on many different issues and try to present a wide range  of viewpoints with empathy, understanding and respect.  They are both self-described Orthodox Jews but many ideas are discussed with a very liberal  bent.  Different podcasts examine  ideas of Jewish religious leaders - from Biblical times through Rambam, Hassidic Rabbis, and more contemporary Jewish thinkers  from Rabbi Avraham Isaac Cook to modern day Rabbis.  Others deal with Israel's legal development and history including Israel's current constitutional status.   Many other issues  are addressed.

The podcast is all in Hebrew - so you should only try to tackle this if your Hebrew is up to the challenge.   If you are interested, Micah Goodman has given a number of lectures in English on YouTube and some are very good.  I wouldn't say that I agree with everything on these podcasts - but I found many of them to be thought provoking, reasonably balanced - and filled with all kinds of references and discussions - of historians,  philosophers, theologians, political scientists and others.  This is not confined to Jewish thinkers or ideas - but includes discussions of far Eastern ideas, Plato, Marx, Rousseau, Hobbes, Locke as well as many other philosophers and other thinkers.  I learned quite a bit and really enjoyed it.  Thanks to my daughter for  the suggestion.  It is apparently a very popular podcast in Israel, listened to many different people, including many on different sides of the political spectrum.

Ultimately, Goodman and Rosenberg propose various types of compromises - for dealing with the Israeli-Palestinian issue, the current constitutional crisis in Israel - and other issues.  Again, I'm not saying I agree with their proposals  but they are very interesting.

Holidays

I supposed it is now time to get into High Holyday mode.  I have been a bit slow off the mark because of general busyness with my work -  and  some travel and family occasions (happy events).  I don't  have any particular role for Rosh Hashanah (in the past, I have  often read some or all of the Torah readings or lead services) - other than to make a few dishes - including a honey apple cake - thanks to Tori Avey's delicious recipe.

For the following week, I will be leading Kol Nidrei and Neilah tefillot at our community services in a friend's  backyard - so if you (or anyone you know) happen to be in Ra'anana and  would like to join an egalitarian liberal service - let me know.  

That's about it for now - I wish everyone a happy and  healthy New Year - with hopes for good health, peace, less political  tension, more moderation - and lots of laughter.  Shana Tova.

Supreme Bombshell: Minister Aryeh Deri Removed from Office by Israeli Supreme Court

On this day, January 18, 2023, the Supreme Court of Israel has issued one of its most consequential decisions in the history of the State.  Released at 4 p.m. Israel time (9:00 a.m. EST), the Court decided by a vote of 10-1 that Rabbi Aryeh Deri, head of the Shas party, should be removed from his position as a Minister in the current government.  While my intro sounds excessively dramatic, I may have even understated the situation.  Israel is on the edge of a constitutional-judicial precipice and it is very difficult to predict what we may see next.

A Bit of Background

Before I get to the actual decision, I just want to cover a few points, as quickly as I can, some of which I may have addressed in my previous blog.  But they are important context.  

1.  As you know, Israel has held several consecutive elections, which have mostly resulted in "stalemates" without a clear victory by the right or the centre-left.

2.  In the most recent election, the Israeli right and far right - managed to win a total of 64 seats, including 11 seats for the ultra-orthodox Sephardi party, led by Rabbi Aryeh Machluf Deri.

3.  Deri was convicted in 1999 of several offences including bribery, corruption, and breach of trust. These are referred to as his "personal offences."  He was also convicted of "public offences" (essentially diverting public funds illegally to a charitable organization that he supported).  Deri was sentenced to 4 years in prison and served a sizeable chunk of that time.

4.  After being statutorily barred from office for 7 years under Israeli law, Deri returned to public life - and was eventually crowned, once again, as the head of the Shas party.  Under a previous Netanyahu government, Deri again became Minister of the Interior almost 14 years after his original conviction (the position he had held in the 1990s when he committed the earlier offences).

5. While Minister of Interior this time around, Deri was again investigated and charged with a whole series of offences including bribery, corruption, breach of trust and other offences.  

6.  In 2021, Deri agreed to a plea bargain where he would plead guilty to tax offences and the other charges would be dropped.  He appeared in Court and told the Court that he would be leaving public life.  In exchange, the Court issued a suspended 12-month sentence and ordered Deri to pay a significant fine.

7. In Israel, convicted offenders are barred from serving from the Knesset if the conviction carries the designation of "moral turpitude."  The Court did not officially designate Deri's latest offence one way or the other.  According to Israeli law, he should have then gone to the National Elections Committee for a determination as to whether this offence involved Moral Turpitude.  If it was categorized in that way, Deri would have been barred from serving as a Minister for 7 more years.

8.  Despite Deri's conviction, he ran in the most recent election as leader of the Shas party and his party won 11 seats (in a Knesset of 120).  He and his party were critical to Netanyahu's ability to form a majority coalition.  As part of the coalition negotiations and eventual agreement Netanyahu agreed to give Deri two Ministerial positions and also make him deputy Prime Minister.

9. Knowing that Deri faced a serious risk of being ruled unfit for office by the courts, Netanyahu's new coalition government introduced legislation, even before they were sworn in as a government, to change Israel's "Basic Law" and state that convicted offenders can be Ministers as long as they do not serve jail time.

10. The appointment of Deri to Ministerial positions was challenged in the Supreme Court of Israel (you can bring this type of question directly to the Supreme Court).  The new legislation was also challenged.  There were a whole range of applicants - including members of the opposition.

11.  The night before the hearing was held, the new Minister of Justice, Yariv Levin, announced a four point plan to reduce the power of the Supreme Court dramatically (which I discussed in my earlier blog).  Commentators viewed this as "pointing a loaded gun at the Supreme Court on the eve of the hearing."

12.  The Supreme Court hearing was broadcast live on TV and went on for about 6 hours.  The decision was reserved.

13. Last week, the President of the Supreme Court, Esther Chayut, took the unprecedented step of giving a prime time, detailed speech opposing the proposed reforms by the current government.  She warned that this was a major attack on the judiciary and would weaken Israeli democracy and judicial independence significantly.  While her speech suggested hinted at what the Supreme Court would ultimately decide in its pending decision, she did not directly address the case that she had just heard.

The Decision Itself

This is not an academic blog, even though I try, at times to edge into academic discussions.  It is also not a legal blog - even though, as you know, I have a Canadian law degree and some familiarity with Israeli law.  As a result, I cannot promise (or deliver) a complete legal analysis of the decision.  But I can make a few relevant comments.  I apologize again for the length of this blog but I realized that it would take longer to cover this than originally expected.

First of all, the decision is about 124 pages long and was released in Hebrew only initially.  I slogged my way through a chunk of it in Hebrew and then gave google translate a try - with a fair degree of success.  Although my Hebrew is quite good, I have to say  that it was much easier to go through the decision in English. 

As I have mentioned, the main take-away is that the Court disqualified Aryeh Deri as being fit to serve as a Minister.

There were 11 judges hearing the case (out of a total of 15 sitting judges).  As an aside, I wonder why they didn't simply have all 15 hear the case - but I'm not going to address that.

The Court heard three challenges to Deri's appointment that it was asked to adjudicate.  I have edited or paraphrased the essence of these three challenges:

1.  The first challenge was the new legal amendment to the Basic Law enacted by the incoming government.  As I have discussed previously, up until December 2022, the law in Israel was that a convicted criminal could not not serve as a Minister in the government if the conviction carried as designation of "moral turpitude." Generally, criminal sentences that involve prison time have been considered to be in that category.  Moreover, there was no distinction between suspended and non-suspended sentences.  

Normally, if a person is convicted of a crime, they can appeal to the National Elections Committee for a designation of whether or not the offence carries this designation.  If so, they could be barred from serving as a Minister in the Knesset for seven years.  As outlined above, Deri received a suspended sentence (one year plus fines) for Tax offences and all of the other charges against him were dropped.  He stated in court that he was leaving public office and it was on this basis that the plea bargain was accepted.  Shortly afterwards, he announced that he was back in business and re-entering public life.  He did not go to the elections committee to determine if his offence would be designated as a "moral turpitude" offence, since he did not want to be barred for seven years (which was a likely outcome). Instead he held a press conference to announce his self-proclaimed victory over a "rigged" justice system.

The law that the new government promulgated (as described above) to allow a convicted criminal to serve as a Minister as long as  the person did not serve jail time was challenged in the Court by a variety of groups.  From my review of the opinions of the 11 judges, it appears that only one or two of the judges were prepared to hold that the new law was void (ultra vires).  However, most of the judges held that they did not need to decide the issue.  

I think they felt that they would be overstepping if they were to overturn this law - and they did not need to do so anyways.

2.  The second challenge was based on an Israeli doctrine of, essentially, "patent (or extreme) unreasonableness."  Here the argument was, that in exercising his jurisdiction to appoint ministers, Prime Minister Netanyahu had to take into account appropriate legal considerations and failed to do so in the extreme.  The Court reviewed Deri's record of multiple convictions - noting that he has been convicted of three different sets of offences, in each case while serving in the government as a Minister.  It also noted that he mispresented himself to the Court to secure his plea bargain deal, that he repeatedly showed (by words and actions) disdain for the legal system and that this was an extreme case in which the failure to consider these issues violated principles of Israeli law.  Of the 11 judges writing opinions (and each judge wrote at least a few paragraphs - if not multiple pages), I counted 7 judges, including Chief Justice Chayut, who were prepared to disqualify Deri on this basis.  Some commentators have suggested that only five judges in total upheld this ground - so perhaps I will have to go back and read some of these opinions again.  Justice Chayut, the president of the Supreme Court, held that since she was making her ruling on this ground, she did not need to decide the other two grounds.  Several of the justices agreed with her.  

3.  The third challenge was a bit more difficult to understand.  Essentially, the argument was that Deri misled the Court when he entered into his plea bargain arrangement.  In a nutshell, the basis for the plea bargain was a mispresentation, wrongful manipulation of the Court and an exhibited disdain for the Israeli legal system, making him unfit for service as a Minister.  At least three of the judges ruled against Deri on this basis and some others were prepared to agree to this ground along with the ground of reasonableness.  This is an interesting ruling because, apparently, this type of decision would not be affected by a governmental decision to change the law of "patent unreasonableness."  In other words, one of the changes proposed by Justice Minister Levin is to strip the Israeli Supreme Court of the power to invoke "patent unreasonableness" as a ground for overturning governmental action.  This finding of "misrepresentation" is not reliant on a need to invoke "patent unreasonableness."  In fact, some of the judges using this ground to overturn Deri's appointment expressly stated that they would not agree to call the decision to appoint Deri patently unreasonable, even though they would overrule his appointment on other legal grounds.

Ultimately, no matter how you slice it, 10 of the 11 judges held that Deri should be ruled unfit for office and removed from his position as Minister.  It is unclear that the Knesset can easily overturn this decision, though it sounds like the current government will certainly try.

One judge, Justice Elron, dissented.  According to Justice Elron, the decision is premature and Deri should be forced to go the National Elections Committee and get a determination as to whether his offences are such that they would attract the "Moral Turpitude" designation.  Despite the spin from commentators on the Israeli right - Justice Elron did not rule that Deri was fit for office or dismiss the appeal outright.  This was primarily a procedural decision - even though Justice Elron did note that Prime Minister Netanyahu should be given much more latitude than the other judges of the Court are prepared to grant.

Commentators have also noted that Justice Elron was the one non-Ashkenazi judge in this group of 11 - and that Deri is of Moroccan origin. The Shas party has attempted to portray this as a racist ruling by 10 non-Sephardi judges - even though five of them are considered "conservative" or "very conservative" judges.  Many are trying to use this lone judge's dissent as a call to attack the court as racist, elite, prejudiced and unrepresentative of Israeli society.  Although it would certainly make sense to have greater Sephardi representation on the Israeli Supreme Court, I really don't buy the argument that these judges were all ruling against a serial criminal because of his ethnic origin.

Now What?

We are hearing about all kinds of possible steps that the current government might now take in response.

Here are a few possibilities.

1. The government may simply press ahead with its dramatic attempt to weaken the Supreme Court.  Levin's multi-part proposal is only the first step in his unrevealed plan. (As he has stated).  He has indicated that the government will start by passing a law allowing it to overturn any decision of the Supreme Court by a mere majority in the Knesset.  The government also plans to take away the  Supreme Court's ability to use "patent unreasonableness" as a grounds for overturning governmental decisions.  The government intends to change the way justices are appointed so that it can appoint more judges favourable to the political party that is in power.  After pressing ahead with these changes, the government may then overrule the Supreme Court's Deri decision and reinstate him.  This could then be appealed to the Supreme Court.  Good luck predicting what will then happen.  It would be a major jurisdictional war between the legislative and judicial branches of the state.

In the meantime, this type of legislative attack on the courts will almost certainly cause a significant increase in the number of Israelis taking to the streets to demonstrate against the government.  Estimates from last Saturday night's rallies were in the range of 80,000.  If the current government proceeds with plans to attack the Supreme Court, we may see demonstrations of hundreds of thousands of Israelis - and we may also soon see road blockages, general strikes and other types of civil disobedience.

2. Netanyahu might find some other creative compromise - such has appointing Deri's son (don't laugh - that is being proposed) to these Ministerial positions while keeping Deri around in a position that he is still legally able to hold.

3. Netanyahu could re-open the coalition talks and give the Shas party a range of new concessions to appease the party and Deri, though it is unclear what would be acceptable to Deri short of being cleared to serve.

I think it is very difficult, if not impossible, to predict, as of right now, which path Netanyahu will choose and what he will come up with.  His coalition partners seem determined to emasculate the Supreme Court.  Historically, Netanyahu has been supportive of a strong independent judiciary.  But since a weakened judiciary could also benefit Netanyahu (as he struggles to get out of his own criminal proceedings), Netanyahu may well agree to use the "nuclear option" and declare all out war on the Supreme Court by enacting all of Levin's proposed changes.

Unless there is a mediated solution of some sort, this "war" between the current government and the Supreme Court could go on for quite some time and may not be readily resolvable.  If the Supreme Court rejects some of the government's proposed amendments, as violating Israel's "Basic Law," we would be at an impasse.  

We are in for some very interesting times indeed. In my view, much of this situation stems from the fact that Netanyahu is currently entangled in his own criminal proceedings and willing to entertain any type of coalition arrangement if it might help him extricate himself from the possibility of conviction.  

Stay tuned - as there will undoubtedly be some wild developments in the coming days and weeks, if not months - or even years.  As I said at the outset, the impact of this decision on the Israeli judicial and legislative system is enormous, even immeasurable.  I hope that all of this will be resolved reasonably at some point, though I am very concerned about whether that is possible.

Supreme Chaos in Israel?

Esther  Hayat, President  of Supreme Court 

Shavua Tov and happy 2023.  I am  writing this week about the legal situation in Israel.  We just finished one of  the most challenging weeks in Israeli legal history - and this promises to mark only the beginning.  I wanted to review some of the key events of the week - and add a bit of colour to the debate over these issues.  According to some commentators, we are seeing the start of a legal "revolution", a coup or a dictatorial take-over of the courts by the Israeli Knesset.  Others view the proposed changes as a shift of power from an unelected Supreme  Court to the Knesset - the elected body.  I intend to address this.

First, a bit of background.  As you may know from reading the news (or maybe from reading one of my blogs), the current government coalition includes the appointment of Aryeh Deri as a Minister.  Deri has been installed as the Minister of Health and the Minister of the Interior - as well as the Vice Prime Minister as part of the coalition agreements that fomed the current government.  He is the head of the Shas party, which won 11 seats in the recent elections.

Deri, as you may also recall, was convicted of bribery, corruption and breach of public trust in 1999.  According to Israeli law, he was then barred from serving as a Minister for 7 years.  After spending some  time in jail - and then doing whatever else he was doing for several years - he returned to politics as the leader of the Shas party and eventually became, once again, the Minister of the Interior as part of a Netanyahu government.  Deri was previously the Minister of the Interior at the time his original offences were committed.  He had now been "rehabilitated" and was able to return to the scene of the crime (in the very same position).

While serving as Minister of the Interior the second time, Deri came under investigation for a new series of offences.  This led to several criminal charges.  Ultimately, in 2021, Deri reached a plea bargain agreement at which he was convicted of tax fraud and given a suspended sentence along with a fine.  At his plea bargain hearing in court, Deri stated that he was leaving public life and willing to "accept his punishment."  The Court accepted the plea bargain arrangement and it was formalized.  All of the other criminal charges were dismissed.

The Court did not decide whether this conviction would bar Deri from serving as a Minister for 7 years - that  decision was left to a  future court. However, just days after his conviction, and his promise to stay  out of public  life, Deri announced that he was  returning to politics and would lead the Shas party in the next election.  He referred to his pledge in court to leave public life as a "misunderstanding."  Following Shas' successful campaign, Deri and his Shas party negotiated terms of the coalition agreement that included the appointment of Deri to two Ministerial positions and the position of Deputy Prime Minister.

Knowing that the appointment would likely be overturned by the Supreme Court, the new government also passed a new law (now known as the "Deri Law") stating that a criminal conviction without actual jail time does not bar a person from becoming a Minister.  That law passed three readings and became law in lightning fast time. Shortly afterwards, a petition was brought to the Supreme Court, challenging both the law and the appointment of Deri as a Minister.  The law was challenged on a number of grounds  including the "reasonableness" of the appointment itself, the  violation of Israel's basic laws (Israel's closest  thing to a constitution) and some other grounds.  The hearing was scheduled for, and took place on Thursday January 5, 2023.

The night before the hearing, the newly appointed Justice Minister, Yariv Levin, held a press conference at 8 p.m. to announce his intended legislative reforms to the Supreme Court and its power.   Levin set out a four point plan, which he referred to as "the first step" of his proposed changes.  His plan included the following:

1. Enacting an "override" clause that would allow the Knesset, with a simple majority, to override any decision of the Supreme Court that had nullified a law that had been passed.  Some supporters of the law pointed to the  Canadian Charter as an example of a  constitutional system that includes the power of the legislative body to override a judicial decision.  

2. Changing the appointment system to allow the ruling party to have a greater say in the appointment of judges.  Currently, judges are appointed by a judicial selection committee that includes representatives  from the Knesset, the Israeli  bar association and the judiciary.  Levin has proposed changing the numbers so that the politicians have the greatest say over who gets appointed to the country's highest bench.

3.  Cancelling the concept of "reasonableness" as a grounds for judicial review of a particular governmental decision. This has been a part of Israeli jurisprudence since the 1950s, though there is a reasonable argument that the use of "reasonableness" as a grounds for judicial review of governmental decisions was greatly expanded much later in Israel's history, without a legislative initiative to create a foundation for this jurisprudential expansion. Unlike Canada or the U.S. - or many other countries- Israel does not have a written constitution.  Judges do rely on the common law, including principles from other countries - and sometimes principles of Jewish law - to ground their decisions. 

4.   Ensuring that "legal advisors" appointed to advise the government are essentially government agents,  appointed by the particular government in power - rather than independent legal advisors.  Essentially, the idea here is that any decisions made about ongoing judicial issues - will be made in a way that is consistent with the government of the day's particular aims.

The timing of this press conference was particular troubling.  It has been described by some commentators as placing a "loaded gun" on the table, next to the Supreme Court, just before the hearing starts.  The Court was about to commence its hearing - that involved questions of reasonableness and judicial review - and here was Levin telling the Court that he was about to take away the Court's power to review decisions on either of these grounds.  When combined with Levin's tone, which I would describe as generally threatening, the overall picture was a major threat to the independence of the judiciary in Israel.  Quite frankly, the scene reminded me of a scene in one of the Batman movies, where the villain is announcing  his plan to take over the world.  

Of course that is an exaggeration (I hope).  I am not saying that none of these  proposed reforms have any legitimacy.  In some of the cases, there is definitely room for discussion and change.  For example, there is a reasonable argument that judges should not be appointing other judges.  After all, the judges might be inclined to appoint judges who agree with their viewpoints exclusively.

There is also quite a  bit of room for a discussion about the limits of "reasonableness" as a ground for challenging a government decision.  If the proposed  judicial review of an enacted law or a governmental action is grounded in the  violation of another law - or a the violation of a general principle of the common law, it may well be appropriate.  But if the Court has the power to determine that a governmental action is simply "not reasonable," that can  be highly problematic.

But even though there is plenty of room for discussion about judicial change, this government is  not proposing a dialogue.  Instead, it is quite clearly threatening to reduce the power of the Court drastically.  It is announcing a plan to limit the power of the Court to reign  in governmental action (legislative and  executive).  On the eve of a key Supreme Court hearing involving these very questions, the government is threatening to install its own judges, take away the power of the judges to judicially review decisions, give the government the  power to override  the decisions in any event - and appoint legal advisors who will simply help the  government to do whatever it wants.

When viewed as an overall package - in the context of  the appointment of a recently convicted criminal as a Minister in the government - and while the Prime Minister is struggling to extricate himself from his own criminal proceedings, this package of "reforms" and the timing of the announcement can only be viewed as a noxious proposal to disembowel the  Supreme Court  of Israel and enable the present government  with its 64-56 majority to pass just about any law it  chooses to promulgate.   

The hearing proceeded on Thursday before a panel of 11 Supreme Court judges.  As a Canadian lawyer (and someone who has passed all  of the Israeli bar exams but not been called to the bar in Israel), I find these types of proceedings incredibly interesting.  We heard all kinds of arguments, biting questions from the judges to counsel from all sides and blistering arguments.  Ultimately, the case was reserved and we await the decision of the  judges.  It is unclear when the decision will be released.  It could be  sometime this week, it could take many more weeks - it could even  be months, though I am sure the judges appreciate the urgency and importance  of the decision.

If the judges decide to rule  that Deri cannot serve as a Minister,  the current government  will almost certainly exercise the "nuclear  option."  They will pass the "override  law" and then pass a law to override the Court's decision.   The "override law" itself and possibly the subsequent piece  of legislation, would then make their way to the Supreme Court for a hearing.  This is the definition of a constitutional -legal crisis - as it would involve a tug of  war between the  legislative and judicial branches of government without any clear document that spells out how these disputes are to be resolved.  

On the  other hand, if the  Court  rules that  Deri can serve as  a Minister and it decides not to intervene, it will be, in my view, a sign that the Court has been browbeaten  into submission by Levin's hearing-  eve threats. The  Court may decide that if it refuses to get  involved, it will forestall, temporarily or  permanently, the further attacks on the Court's authority.  It is far from clear that this tactic will work.

In the Israel version of "Meet the Press," which was broadcast Saturday night after Shabbat, several panelists appeared to discuss  these matters.  Some of the strongest opponents of  Levin's proposals included former Chief Justice Aharon  Barak  and former Minister of  Finance Avigdor Lieberman.  Barak stated that these proposals were an  unquestionable attempt to weaken democracy in Israel and  called  for Israelis  to protest in every legal way possible.  He warned that if these changes were implemented, Israel's legal system would start to look  like the systems in Hungary, Turkey and, eventually, Russia.  Lieberman stated that  Netanyahu was behind all of  these changes, which were all intended to lay the groundwork for Netanyahu to end his own legal proceedings.

To his credit,  Levin himself showed up on TV  and  gave a spirited defence of his proposals, which he stated that he has been planning for more than 20 years.   He was happy to take on any questions.  The only questions he  dodged were about the "next steps" in his plan - which was especially troubling since he had stated earlier that these four initiatives were only his first step.

As I mentioned above, there are some reasonable arguments over some of the proposed changes and  Levin did a good  job in presenting those defences.  But, ultimately, the take-away, even  from Levin's well-rehearsed appearance, was that since the voters elected this government, it  should be able to do whatever it wants and not worry about  judicial scrutiny.   While Levin calls this  a "strengthening of democracy," it is really a recipe  for "tyranny  of the  majority"  and a demonstration of why democratic, rule of law countries require a constitution  and  a robust judicial system.  It is the courts that act as a backstop to uphold the rule of  law and to protect the rights of each individual in a society, including those who are most powerless.  Without any kind of judicial safeguards, it is frightening  to imagine  what  laws might be enacted, especially by a government that is beholden to several extremist parties with high ranking  ministerial positions.  Unfortunately, we may soon find out.

The new Netanyahu government is not only planning to set its sights on the judicial system.  Another proposal that has been floated, though not yet formally proposed, is to close  some of Israel's public broadcasters.  Many commentators  have argued that this is an effort to minimize governmental criticism and is a blatant attack on freedom of the  press.  As one of the Meet the Press  commentators pointed  out this evening, the government is starting with attacks on the press and the judiciary - which are generally the two major sources of criticism  and  accountability for any particular government.

For some, alarm bells are sounding everywhere  and  the fire has already started.  For others, there is still a "wait and see" component, with a hopefulness that  cooler heads will prevail.   The organization "Free Israel" held a major demonstration  in Tel-Aviv tonight (which several of my friends attended) and there is every reason  to believe that the number  and size of  demonstrations will  continue to increase as this government begins  to enact increasingly questionable laws.

I do believe that the Supreme Court's decision on the Deri law and the reaction to it will be a  major milestone.  If the Court overrides the Deri appointment, which many expect,  we are likely to see this relatively localized fire turn into a five-alarm blaze.   I am not sure what will happen next, though some Israelis are hoping that there are some more moderate Likud members who might start to think about putting the interests of the country above the  interest of keeping Netanyahu in power  at all  possible costs.

Israeli Government Update January 2023

The new Israeli government has been sworn in, just in time to mark the end of 2022 and the start of 2023.  As  widely reported and  discussed, this is the furthest right wing government that Israeli has ever had.  The government  includes 32 members of the right wing Likud party along with 14 members of the far right Religionist Zionist party, 11 Ultra Orthodox Shas party  members and 7 Ultra Orthodox United Torah Judaism representatives.  

The proposed agenda of this coalition, as set out  in the various coalition agreements between the Likud party and these coalition members, if enacted, will threaten the rule of law  in Israel, the independence of the judiciary, the rights of  minorities, gender equality, the religion-state status quo and it will also have a lasting  and potentially exposive impact on the Israeli-Arab conflict.

Rule of Law and Judicial Independence

Perhaps it is no surprise that a  religion-based governing coalition would take inspiration from Jewish prayer.  One part of the Amidah prayer (recited three times daily by observant  Jews)  is  the  attribute of God as one who "straightens the crooked."  ("zokef k'fufim").  So the first order of business for this government, even before it was officially installed, was to pass a Knesset law that would allow convicted criminals to serve as cabinet ministers.  This law was passed in the Knesset last week so that Aryeh Deri, the leader of the Shas party, can serve as  Minister of the Interior and Health Minister and then subsequently, Minister of Finance.  He will also be the Deputy Prime Minister.  

Deri was convicted of bribery, fraud and breach of trust in 1999 for offences committed while he was previously the Minister of the Interior.  He served his prison sentence and then rejoined Israeli politics years later, to eventually  take back his previous position as head of the Shas party.  Under Netanyahu's previous government, Deri again became Minister of the Interior.  In 2021, Deri pled guilty to tax fraud and was given a suspended sentence.  At his sentencing hearing, he stated that he would be leaving political life.  Nevertheless, he promptly reneged and ran, once again, as leader of the Shas party.  Under current Israeli law, he would be barred from serving as a Minister.  So as a term of the coalition agreement, the first order  of business for this government was to pass a law overriding the current  law and allowing convicted criminals to serve as ministers.  That law passed three readings last week and became law.  The crooked Deri has been legally "straightened," even though I would venture to say that is probably not the type of straightening envisioned in the prayer.

The law has been challenged  in the Supreme Court of Israel as violating the "Basic Law" of the State of Israel - which is the closest thing Israel  has to a constitution.  The hearing is scheduled to be held on Thursday January 5, 2023.  However, the Supreme Court will be making its decision under an ominous storm cloud.  The current  government has stated that if the Supreme Court invalidates the law, the government will enact a new law overriding the Supreme Court's power.  In short, Netanyahu's government has vowed to ensure that the convicted Deri can serve as a Minister, no matter what kind of legislative gymnastics are required.

This fight is not inconsequential.  Several other members of this government are either facing charges, being investigated or already have criminal records.  Included  among them, of course, is Netanyahu himself, who is eagerly awaiting a favourable disposition of his criminal hearing, presumably as an unpublicized term of the coalition agreements that he has signed.  Netanyahu is currently fighting charges of breach of trust, corruption and bribery.  A favourable outcome for Aryah Deri is likely to assist Netanyahu in several different  ways including setting the groundwork for a plea bargain deal that will not have a deleterious effect on Netanyahu's continued political life.

The newly appointed  Minister of Justice, Yariv  Levin, a staunch Netanyahu loyalist, has vowed to completely overhaul the justice system, though he has not set out everything he  intends to do.  However, he has made it clear that he  aims to weaken the power of the Israeli Supreme Court significantly and revamp  the appointment  process for  Supreme  Court justices to ensure that politically compatible judges are  appointed.  Levin  is charged with passing the  "override" bill that will allow the Knesset by a simple majority to override any decision of the Israeli Supreme Court.  A weakened and less independent judiciary will  unquestionably impact the rule of law in Israel - significantly and negatively.

Minority Rights and Religion-State Issues

The new government has  proposed several wide-ranging legislative changes to assist the Ultra-Orthodox and Orthodox communities.   Yeshivas that do not teach secular subjects will be guaranteed funding.  Yeshiva students will receive a  large increase in monthly stipends that they are paid by the state  while studying.  The exemption from military service for the ultra-Orthodox will be  strengthened.  The law will be changed to allow businesses in Israel to refuse to serve certain groups for religious reasons (something like what the U.S. Supreme Court has been doing with respect to the LGBTQ+ community).  

The first order of business for this group here yesterday was to roll back certain tax changes that the previous government had implemented including taxes on sugary sweet beverages like Coca Cola (to try to fight growing rates of diabetes in Israel) and on disposable paper and plastic products (to try and help the environment).  The ultra-Orthodox argued that both of these taxes affected their communities disproportionately and demanded that these taxes be rolled back.  Yesterday, the new Minister of Finance, Betzalel Smotrich announced that both of these taxes were ending immediately.

I should mention that the Speaker of the House is Israel's first openly gay speaker, Amir O'Hana.  This was no issue for most Likud Knesset members or members from the rest of the Knesset, other than the Likud's other coalition partners.  Members of the Shas, UTJ and RZ parties covered their faces or looked away while O'Hana was giving his first speech as speaker of the house.  He vowed to ensure that all Israelis are treated equally and fairly including those who are members of minority groups even in the face of this proposed discrimination law.  Some of his Ultra-Orthodox and nationalist Orthodox coalition members this week attacked O'Hana as unfit for the job and called him "sick" and "in need of help" because of his sexual orientation.  With friends like these, who needs enemies?  These are after all his coalition partners who got him elected to the speaker position.

O'Hana was hand-picked by Netanyahu to serve as speaker of the house.  Some Shas and UTJ members this week said that this was a poke in the eye by Netanyahu since these parties have called for several anti-LGBTQ+ steps to be taken by the government.  For example, they want to ban Pride parades, limit accesss to same-sex adoption and fertility treatments and allow discrimination in housing and other services agains the LGBTQ+ community.  It is unclear whether Netanyahu is serving notice that he will protect the LGBTQ+ community by appointing O'Hana and that his government will refuse to enact agreed upon coalition promises - or whether he intends to try and use O'Hana as a fig leave to cover up for other discriminatory steps that his government plans to take as agreed upon with the other parties.  We will have to wait and see.

The Ultra-Orthodox and Religious  Zionist parties  have also called for increasing power in the hands of the Chief Rabbinate of Israel, undoing the changes of the previous government that partially demonopolized Kashrut rules across Israel, making it harder to convert to Judaism, limiting immigration, giving the Chief  Rabbi of the army much greater power over soldiers, barring non-Orthodox prayer services at the Kotel (Western Wall) or anywhere  near it - including  closing the "Israel area" where egalitarian prayer takes place and many, many other initiaves.  It is unclear how much of this agenda will actually get enacted - but the coalition has a majority and has some very motivated Knesset members.  It will be difficult for the opposition to stop them.  The only realistic reign on  some of this agenda will come from centrist and centre-right Likud party members themselves who may not be prepared to back some of the more extremist measures.

Arab-Israeli Issues

On the one hand, Netanyahu has vowed to make peace  with Saudi Arabia and to continue to expand the Abraham Accords, which would be beneficial for the entire region if it were to occur.  On the other hand, the coalition agreements that Netanyahu as entered into have led to the appointment of extremists such as Itamar  Ben-Gvir and  Betzalel Smotrich in positions that will now give them control over the police and parts of the military in the disputed territories and other parts of Israel.  Ben-Gvir is someone who was deemed unfit for national military service due to his extreme views.  He is now in a position to implement police and military policy.

Early today, Ben-Gvir visited the Temple Mount - the area above the Kotel - at the Al-Aqsa Mosque.  Ostensibly, he was visiting to mark the 10th of Tevet, a  Jewish fast day.  But Ben-Gvir and many of his supporters have stated that they intend to change the status quo, allow Jews to pray near the mosque regularly and, ultimately, rebuild the Temple on  that  site.

The Religious Zionist party also plans  to expropriate more Arab land, ease the regulations for when soldiers can  open fire on suspected threats, grant blanket  immunity to Israeli soldiers for actions while on duty and take several other steps that are sure to inflame the Arab -Israeli conflict.  These steps if taken would upend many of Israel's long standing policies that were implemented to ensure that Israeli soldiers always act within  carefully measured rules.  Once  again, it remains to be seen whether Netanyahu will be prepared to reign in these extremists - especially while Netanyahu's trial is still proceeding.

Overall, the early signs are that  this coalition will try to move quickly and implement as much of its agenda as it can, as hastily as  possible.  If the  coalition retains support from  all of its members, it can pass just about anything by a 64-56 margin.  I expect that we will see very large demonstrations in Israel very shortly within Israel - as well as more violent confrontations between Arabs and Jews across Israel and the  disputed territories.

One possible difficulty for the coalition may be internal.  There is a sense that Netanyahu held a "fire sale" and gave up too much to the coalition partners while retaining  less power than his party should have kept for itself. There are several disaffected, high ranking  Likud members who did not receive plum  cabinet posts and who have started to openly criticize Netanyahu for the first time in five years.  These include David Biton, David "Dudu" Amselem, and others.  Former Likud party member Dan  Meridor appeared on TV  on Saturday night and called this government that "greatest threat to democracy that Israel has ever  seen."

If four or five of these Likud members decide not to pass some  of this legislation, that could lead to a governmental crisis.  Ben-Gvir seems to believe that he can  increase his support and become  the Prime Minister one day - by outflanking the Likud on the far right.  He  will want  to head into the next election portraying  the Likud as a bunch  of  "leftists" who refused to enact his agenda.  

While that is a scary prospect that can't be ruled out, the Israeli public is not there, in my view.  Ben-Gvir's plan  could backfire.  If this  government collapses,  the extremists could  lose significant support.

That being said, I expect that they all realize this.  As big as their egos are, I think the right wing parties recognize this as being a golden opportunity and intend to maximize the opportunity.  Despite the anticipated  demonstrations, increased levels of violence, internal and external threats and worldwide  condemnation for some of the anticipated  moves, I would expect that this government is not about to collapse any time soon, though it may not make it all the way through  a full four-year term.

I have not gone through a comprehensive list  of all of the proposed legislative changes, all of the ministers or each of the coalition agreements.  Much of this information is readily available  on various sites if you wish to delve deeper into this.  But  I have picked  out some of the key proposals that  have received  widespread press coverage in Israel and other parts of the world and I have shared some of my concerns.

There are many people in Israel - and other parts of the world - who support much of this agenda.  According to some recent polls in Israel, somewhere close to 42%  of the Israeli public are happy with this government.  There is also support from ouside of Israel from some sectors.  Just  two days ago, someone emailed me an article by Alex Traiman of the Canadian Institute for Jewish Research, arguing that  this new government reflects the "will of the people," is not "anti-Democratic" and called this new government a "tremendous achievement."  I won't say which friend or family member forwarded the article to me.  But I guess we will have to wait and  see what happens and which pieces of legislation  the government actually implements.  That being said, in my view, the partial list set out above includes quite a number of dangerous, anti-democratic, steps  that are unlikely to be viewed by many as anything  "tremendous."  

As I mentioned at the outset, I think we will see significant challenges to the rule of law in Israel, initiatives that threaten minority rights, gender equality, Arab-Israeli relations and  a host of other initiatives that will have a very negative impact on Israel.  Hopefully many of these changes will be reversible.

Former Prime Minster Yair Lapid gave some closing remarks on his last day of his office.  He reviewed the achievements of his government in what was essentially a "State of  the Union" type address.  He closed by saying, "we are leaving you with a State that  it is in very good shape - please don't destroy it.  We  will be back soon."

Other Notes

New Year's Eve and New Year's Day came and went in Israel with little fanfare in most quarters.  Like  Christmas, New Year's Day is  not a holiday in Israel.  It was a normal workday with everything open and business as usual.  There were certainly New Year's parties across the country though there was no special TV  programming, national concerts or other official celebrations.  

As we enter 2023, I am still hoping that some of the sports teams I cheer for will come up big in 2023.  

Last night, as you might know, the Canadian junior ice hockey team won an incredible overtime game against Slovakia.  The overtime goal by Connor Bedard (projected to be the next ice hockey superstar) was an stunning piece of art.  Canada will play the United States on Wednesday night in what is sure to be another hard fought game - with the winner ending up in the finals on Thursday against Sweden or Czechia.  The games start at 1:30 a.m. here in Israel but I am happy that I stayed up to watch last night's contest.

I was also planning to watch the Buffalo Bills play last night (after the hockey game, of course) but as you may have heard, this game was stopped early in the first quarter due to the massive injury suffered by Bills cornerback Damar Hamlin, who went into cardiac arrest.  Hamlin was taken to the hospital and is said to be in critical condition.  Hopefully, he will recover from this though the nature of his injuries at this point is unclear.

Not sure what the NFL will do after taking the rare step of postponing a game due to a serious injury.  Perhaps the league is waiting and hoping for good news to be able to resume on some kind of positive note.  At some point, I would assume that the league will resume play though I think any decision will be affected by Hamlin's condition.

As I have written in other blogs,  Buffalo has one of the best football teams it has ever had and I have been super excited about watching them play.  Hopefully Hamlin, the league and the Bills themselves will overcome this injury and the Bills will wind up winning the Superbowl.  I am willing to give up some sleep when I am here to watch some of these games.  These games tend to start at 3:30 a.m. Israel time (if they are the evening games) and end early in the morning.  So I guess I am on a bit of a crazy schedule.

I think I will wrap things up for  now here - and wish everyone all the best in 2023 - best of health, success, peace, stability and wise decision making for everyone.  

October 2020 Update

We are now in the midst of the holiday of Sukkot - also known as "the time of our  happiness," the "holiday of  booths," and the time for travelling and trips abroad for many Israelis.  Not this year, generally.  At least not the travelling part.  Israel is in the midst of a nation-wide shut-down of sorts so travelling is fairly limited.  But Sukkot (booths) are still everywhere - and people are celebrating the holiday.  

It has been a very strange and unusual holiday season though that is certainly  not unique to Israel, unfortunately.   The interesting question is how this will change things in a long term way.  In so many respects.  But that could  really be the subject of a very long blog.  Maybe the next one.  This one will be a bit more anecdotal I think.  I'll cover some personal reflections about the holidays, Israel's current Covid-19 situation, the Israeli government and anything else that springs to mind before the end of these comments.

The Holy Days - Some Personal Reflections

Rosh Hashana came and went.  One initiative in Israel was to have people with Shofars walking  around (on the  second day of Rosh Hashanah, the Sunday) and blowing their shofars so that people could get the chance to hear them.  In Ra'anana, the City set up various points around the city where there would be shofar blowing at different times.  Another  initiative was to tell people to go out onto their front lawns, their balconies or their backyards and blow  their shofars at 11 a.m.  I took part in this one - and noticed at least one neighbour enjoying my attempts to sound like a real shofar blower.  I guess I have another year to practice.   Makes me wish that I had learned to play the trumpet in school instead of the saxophone.  

In any event, it was just our immediate family and we opted for a service  in the house rather than joining the various zoom options or finding an outdoor service that was following the rules.  But we were lucky to have each other and although we missed the rest of our families, it was still a meaningful New Year commemoration.

For  Yom Kippur, we spent a fair bit of time discussing what to do.  We usually run  a small service in Ra'anana, a satellite service for Kehilla Hod v'Hadar (which is in K'far Saba).   In the past, we have not held Kol Nidrei here but have walked to K'far Saba.  We usually then have Shacharit, Mussaf, Minhah and  Neilah in Ra'anana.  

This year, we decided to hold the tefillot outdoors in one of the member family's backyard.  It was too hot to hold a morning service there but we ran a Kol Nidrei service and Minhah/Neilah outside.  We  were all spaced apart, wearing masks and outside.  Just between 11-13 of us.  I think it was my first time leading Kol Nidrei in about 35 years.  So there was a fair bit to prepare.  Neilah was a bit easier since I have been leading it for the past 6 or 7 years I think.  But it worked out  nicely and I am glad we were able to hold this service.

Next up came Sukkot.  We put up our Sukkah - and once again - it was just our immediate family  having meals inside.  The Israeli government has imposed a 500 shekel fine for "attending a meal in a non-family member's sukkah" (defined as someone who doesn't live in the same home).  But I think the fine is really viewed as a 500 shekel fine for those who weren't quick enough (or pre-organized enough) to have a reasonable excuse, when asked, to avoid the fine.  In any case, we have waved the lulav (the palm branch) and the Etrog (the Citron), sat in the Sukkah and enjoyed some nice wine.  After all, it is still the time of "our happiness" and the wine helps.  

The Closure, Covid-19 and Israel

Back to the closure.  The Israeli government has instituted a form of closure - but it is certainly not "hermetic."  In fact, it probably has more holes than a  hunk of swiss cheese.  So police have set  up road blocks all over the place.  But they are only stopping random cars - and then there is a very long list of exceptions to the closure.  The exceptions include:

- going out to buy a lulav and etrog

-going out to perform the mitzvah of Kapparot (until the end of Sukkot) (i.e. swinging a chicken over your head to get rid of your sins;

-buying groceries, essential household goods, medicine etc.,

-exercising (on your own or with a family member from the same house);

- demonstrating (against or for) the government (within 1 km of your house) (I haven't seen too many demonstrating in favour of the current government);

- attending a synagogue service (outdoors, with less than 25 people, within 1 km of your home);

The list goes on and on.  This is just to provide a bit of flavour.  

Overall, there is a sense here in Israel that Covid-19 is really out of control.  We reached close to 10,000 new cases a day last week, in the aftermath of Rosh Hashanah.  We have seen an increasingly high number of seriously ill patients and  a growing number  of fatalities.  Although the government has now imposed a closure as a way to try to deal with it - it is not a well- planned or well thought out response to the pandemic.  It is not being accompanied by steps to assist businesses, business owners and workers that will enable them to manage the economic side of the crisis.  It is being applied universally, all over the country, even though there are clearly pockets of high infection rate areas that probably warrant a different approach from those areas in which the infection rate is low.  It is unclear how this will all play out or what steps the  government will take to try and address the situation.  But we know that the virus can spread at exponential rates.  10,000 new infections per day is quite frightening and is  bound to lead to a great deal of stress on the health care system in Israel, the hospitals and support  systems across the country.  

The Current Israeli Government   

As you may know, the current Israeli government is a coalition government made up of opposing parties, generally quite hostile to each other,  who have been unable to follow the coalition agreement that they put  together themselves.  So, for example, the parties signed an agreement that they would pass a two year budget as one of the first items of business.  But Netanyahu reneged and insisted on a one-year budget only (which would be a budget for the period Jan 1, 2020 to December 31, 2020).  Blue and White continued to insist on a two year  budget.  A stalemate resulted and the decision was put off for two or three months.  As a result, there is no budget for the current year in place.  The government is running on "interim budget measures."  

Netanyahu is looking for an opportunity to pull the plug on this current government and  call an election.  He is hoping that he will be able to piece together a 61+ seat right wing government and get retroactive immunity for himself to clear him of the various criminal charges that he is now facing.  But polls have shown that Netanyahu is losing some support - to the "Yamina" (Real Right) party of Naftali Bennett.  Netanyahu is concerned that he will lose negotiating power and that he may not be able to get the immunity bill or the government that he wants.  So he has now become hesitant to call an election. We therefore have somewhat of a stalemated government that cannot agree on steps to take but is also reluctant to call another election.  This cannot continue for too long.  It is likely that the government will soon crumble and a new election will be announced - perhaps in December or January.

Meanwhile, there are protesters across Israel, spread out and following the new rules of protesting within  1 km of  their  homes.  For the most part, these protests have not been violent and have simply been made up of a wide range of citizens protesting against various aspects  of the operation of this current government under Netanyahu's stewardship.  That was  not  entirely the case on Saturday night in Tel-Aviv, where police on horses and in full riot gear used quite a bit of force to disperse a largely non-violent group of protesters.  

A primary concern is that a Prime Minister facing a range of criminal charges, is trying to make various decisions that could directly impact on his own situation.  For example, which judges to appoint in the courts, which civilian appointments (chief of police) and what to  close versus what to leave open across the country.  During the first closure, in March/April, one of Netanyahu's first steps was to close the courts while leaving many other places open - ostensibly so that he would not have to show up for an impending court appearance.

Many  other  people are protesting the lack of an economic plan, the impact of a closure on so many people without proper support and  the general perception that decisions are being made for political reasons  primarily rather than reasons based on epidemiological necessity or medical and scientific evidence and requirements.

At the same time and to be fair, it is unclear that this large number of protesters will be able to change the political results at the ballot box whenever the next election is held.  In other words, it may well be that they are made up of a large and  vocal minority.  That remains to be seen.

Schadenfreude

I must conclude this post with a comment on Schadenfreude.  

In Israel, I would not say that mask wearing and physical distancing has been viewed as a "left-wing plot" or confined to left segments of society.  In fact, Netanyahu himself has been very clear about wearing a mask,   proper steps to distance himself from others and urging Israelis to follow suggested steps to deal with the virus.  Of course some  of his ministers have not always gone along and  have viewed themselves having a special exemption from the rules that everyone else is urged to follow.  But it is not necessarily a "right-left" fault line. 

In fact one of his ministers is  now the subject of a great deal of press coverage.  Minister Gila Gamliel went to a shul  for Yom Kippur with her father in law - who was under a quarantine order due to exposure to the virus.  Some 28 people who attended services at that shul have now been diagnosed as having the virus.  There are many other similar stories.

As the virus spread in Israel, many in the ultra-Orthodox community refused to close synagogues, wear masks, follow physical distancing guidelines or close learning institutions.  One of the leading ultra-Orthodox rabbis of the Lithuanian ultra-orthodox community, Rabbi Chaim Kanievsky had insisted back in March that synagogues and yeshivas remain open since "cancelling Torah study is more dangerous than the virus."  He is later reported to have told his followers  not to get tested - since positive results would lead to a shut down of their institutions.  In any event, at age 92, he has now been diagnosed with Covid-19 although his condition is apparently improving.   According  to at least one report last week,  more than 40% of all cases of covid-19 are in the ultra-orthodox community.   Rabbi Kanievsky eventually agreed to issue a press release urging followers to adhere to guidelines.  But the virus is rampant  now in his community.

Likewise, of course, it is perhaps not surprising that President Trump has also contracted the virus.  He has held countless rallies  with unmasked supporters, refused (for the most part) to wear a mask himself and belittled those  who are taking the virus seriously.  When the Israeli  delegation flew to Washington to sign a peace deal with the UAE, Trump insisted that the delegation members not wear masks at the ceremony.  There was a heated negotiation but the Israelis largely gave in with some exceptions.  

Similarly, at Trump's Supreme Court nomination announcement last Saturday, the attendees did not wear masks or follow any physical distancing guidelines.  Is it at all surprising that Trump and  so many of his colleagues have been infected?  While we can all hope for the complete and  full recovery of the  President, I think we can also all hope (and pray) that the President will change his tune and start urging Americans to follow some common sense guidelines to minimize their chances of getting infected.  Maybe instead of attacking Biden for wearing a "huge mask," he'll decide to start wearing one  himself.  Regularly.  Assuming he recovers.

Sports Comment

September began with some  cautious optimism on my part cheering for some Toronto  teams.  The Raptors, Maple Leafs and Blue  Jays all had a shot to the make the playoffs and I was hoping for an interesting playoff season.   The Maple Leafs and Blue Jays exited with barely a whimper.  This was especially disappointing for the hockey team which had so much talent and so much promise.  But another year is in the books, which means that Toronto has  now gone 53  years without winning a hockey championship.  Ouch.

The Raptors were hoping to repeat their feat of  winning the NBA championship but without their superstar from last year Kawhi Leonard.  For the Raptors, it was also a premature and disappointing exit.

So what is a Toronto sports fan to do?  Well, the remaining team of interest - which has never one a championship - is the Buffalo Bills (okay, not Toronto but close  enough).   The  Bills are off to a 4-0 start this year and have an excellent young quarterback.  So that is very exciting.  Worth staying up for here in Israel.

Finally - and I think I got this wrong in an earlier blog - the Israel national soccer (football) team will play Scotland on October 8th for a chance to get to the delayed 2020 Euro championship.  If Israel beats Scotland, it will have to play the winner of a Norway-Serbia match on November 12th.  So that match will be this coming Thursday - and it really will be one of the biggest soccer matches for the Israeli side in many years.  I am not normally a huge soccer fan - but this will be an exciting event to watch.

I wish everyone a Chag Sameach (Happy holiday) and Mo'adim L'Simchah (Enjoy these times joy) and a home that the coming year brings us much better news from all across the world.  Keep in touch!

Some Improvements in Israel and Some Ongoing Arguments

Israeli Supreme Court

Well here we are in May, 2020 and our Prime Minister is claiming victory over Covid-19.  Okay, not exactly, but at a news conference earlier this evening, he pointed out, repeatedly, how much better Israel has fared than many other countries with similar sized populations.  All because, he argued, Israel took very aggressive steps much earlier than these other countries.  He mentioned Italy, Spain, the United States and others.

Using various charts and  graphs, Netanyahu showed that Israel has seen a tremendous reduction in its infection rate, a reduction in the number of daily fatalities and a reduction in the number of seriously and critically ill patients.

It is true that the steps taken, largely at the behest of professionals working in the Ministry of Health, have helped Israel to fare reasonably well in comparison.  But it is unclear that this means that Israel can now open everything up and pretend that the virus has gone.  If there is a resurgence, everything will have to be shut down again quite quickly.  According to Netanyahu, it will take about two weeks to make that assessment.

In the meantime, the Israeli government has loosened many restrictions.  Malls and outdoor markets will be open on Thursday May 7, 2020.  Visits to see family members, including grandparents are now permitted - though "no hugging" is recommended.  Gatherings of up to 20 people are now permitted.  (Up until now, this was only permitted if it was an outdoor prayer service).  Weddings on Lag B'Omer may be permitted with up to 50 people - though it wasn't clear if the limit will be 20 or 50.  All students are expected to return to schools by the end of May.

People will still be expected to wear masks when they are out  and gloves are recommended though not mandatory.  We took a walk today around Ra'anana.  While there were some people without masks, we concluded that most people were complying.  In some shops, proprietors were following all of the restrictions diligently.  In others, things were a bit looser.  Okay, much looser....But the infection rate in Ra'anana has been reasonably low so it is fair to assume that many people here are following the rules.

Some other cities in Israel have been much harder hit, most notably, Jerusalem, B'nei Brak and some other areas. However, it does appear that things are improving somewhat in most of the country.  It remains to be seen whether this will be a blip or whether it will mark some genuine progress.  The Israeli government has indicated that if all goes well, it intends to permit  gatherings of 50 or more people  - for weddings, funerals etc., by June 17th.  Not sure yet what this will mean for restaurants - though it may be good news for those with outdoor patios.

Today also marked the second day of arguments before the Israeli Supreme Court over whether or not to permit the coalition deal with the Blue and White party to proceed.  Various groups  have brought petitions to the Court arguing against the deal.  I am not going to review all of the legal arguments but I will highlight a few of them.

Under Israeli law, a "Prime Minister" can serve even while under indictment for serious offences.  However, other MKs cannot continue in their posts and ordinary "Ministers" are required to step down if charged with certain serious offenses.  The new coalition agreement contemplates that Netanyahu would serve as the Prime Minister for the first 18 months and would then step down to a lesser position.  However, under current Israeli law, that would require him to resign altogether until the serious charges that he faces were resolved.  The solution that Netanyahu concocted is that he wouldn't still be called the "Prime Minister" but Gantz would be the "Alternate Prime Minister" who would effectively run everything after the rotation date.  But because Netanyahu would still be called the "Prime Minister" he would not be forced to resign.  Israel would effectively have two Prime Ministers which seems to go against Israel's quasi-constitutional Basic Law.  (Israel does not have an actual constitution). 

The Court chewed on this one for a while today.  Ultimately, some members of the Court suggested that they may delay deciding until it actually becomes an issue 18 months from now.  But Netanyahu's lawyers urged the Court to make a decision now.

The coalition deal would also require a freeze on all new appointments in government including a number of key positions which have been dormant for some time.  Netanyahu's lawyers argued that it was all because of Covid-19.  Some of the Supreme Court judges asked how the two were in any way related...For example, the President of the Court asked why Covid-19  would prevent the government from appointing a new Chief of Police.

I have to confess that, as a lawyer, I enjoyed watching a chunk of the arguments.  It was fascinating to compare legal discourse in Canada to that in Israel.  It was a very heated argument at times - and certainly the type of language that was used was much more colourful (and at times informal) than one might hear at the Canadian Supreme Court, most of the time.  My Hebrew is good enough to catch most of it though I probably missed some nuances, some references to previously decided cases and some other phrases common only in Hebrew legal usage.

From what I could gather, there is a strong reluctance on the part of the judges to interfere in the election process.  They do not want to be seen as overriding a democratically elected government formed though a back and forth negotiation process.  At the same time, they are wary of upholding laws that would violate the Israeli Basic Law and chip away at Israel's democracy and commitment to the rule of law.  Towards the end of the hearing, the justices signaled that they needed to hear further arguments about two key issues and gave the Likud lawyers 24 hours to amend the proposed law or put forward better arguments.  It would be really difficult, however, to predict what decision will follow that additional argument.

Changing the topic, the weather here is heating up and the big holiday of Lag B'Omer - national bonfire day (effectively) is approaching.  Beaches are not yet open but just about everything else will be soon - and reopen beaches cannot be too far off.   Many people are now out and about and there is a feeling of some optimism across the country.

For  many, however, a huge part of the Israeli economy is tourism.  So many businesses across the country rely on the tourism industry.  Hotels, restaurants, merchants, tour guides and so many others.  It is really unclear when Israel will be able to reopen its borders to tourists, when the airports will reopen and when things will really turn back to some semblance of normal.

But I suppose that is the same just about everywhere else.  We will all just have to hope that things improve dramatically everywhere, the sooner the better.  Wishing everyone the best of health.

Justice Joubran, Arabs and Haredim in Israel: Loyalty, Hatikvah and Universal Conscription?

(Israeli Supreme Court Justice Salim Joubran - from Haaretz)

Justice Asher Grunis was sworn in on Tuesday as the new President (Chief Justice) of the Israeli Supreme Court. Among a range of impressive qualifications, Justice Grunis also has a Toronto connection - a PhD from York University. Justice Grunis replaces Justice Dorit Beinisch, who was the first woman to hold the post of President of Israel's highest court.

The induction ceremony was held at the residence of Israeli President Shimon Peres. Along with a number of speeches, the Israeli national anthem, Hatikvah ("the Hope") was performed and the panel of Israeli Supreme Court judges sang along. That is, with the exception of Arab Justice Salim Joubran. Justice Joubran apparently has idealogical objections to singing Israel's anthem. His public non-participation has touched off a debate in some circles about the level of loyalty to the State of Israel that ought to be required for a justice of the Supreme Court.

On one level, the issue that has been raised related to "Hatikvah." The Israeli national anthem speaks of the yearning of the Jewish soul to return to the Jewish homeland, the land from which the Jewish people were exiled. The anthem concludes with the dream of being a "free nation, in our land, the land of Zion, Jeruslem." The anthem is glorious and it captures the essence of the Zionist project - to build a Jewish homeland in which the Jewish people can live as a nation. For Israel, as a Jewish state, the anthem is appropriate and relevant.

But for Israel as a democratic State, which protects the rights of all citizens to live in the country, to practice their religious beliefs and to maintain their own national, cultural or ethnic identities and aspirations, it is understandable that Arab citizens would refuse to sing this particular anthem. I really don't see a problem with that. Other countries have equally offensive anthems. In Canada, the French version of the national anthem includes the line "they know how to carry the cross," suggesting that only Christians are true citizens. I cringe every time I hear it and would certainly refuse to sing it publicly at this type of induction ceremony, but I really don't believe that would be used as a litmus test to measure one's commitment to the country. In fact, in a country like Canada, it is particulary obnoxious because Canada purports to treat all Canadians equally, regardless of religious affiliation. Israel declares openly that it is a Jewish and democratic State, so there is a difference.

On the other hand, the issue of "loyalty" does have other aspects to it and is not confined to the question of whether or not a Supreme Court Judge should publicly sing Hatikvah. Israeli Jews are subject to universal conscription and must serve in the Israeli army or perform national service. There are currently exemptions to this requirement. Ultra-religious Jews, who are studying full-time in Yeshivas are exempt, for the time being. I have written about this in other blogs. Arab Israelis are also exempt, though Druze Israelis serve in the army. Overall, this means that approximately 75% of Israeli citizens of draft age are now eligible to be conscripted with the remainder exempt. Israeli army service can greatly affect a person's future employability with many employers placing a great deal of weight on the type of military service that a candidate performed.

The issue of military service is quite different than that of the public singing of Israel's national anthem. Here, changes should be made. If Israel, as a democracy, takes steps to ensure that rights and freedoms and all types of employment are open to all citizens, then all citizens should share the responsibility of protecting the State.

Steps are already being taken to conscript the Ultra-Religious Jews. This will assist the State of Israel and it will also improve the post-army employability of these Haredim. There may still be an exemption for a very small number of exceptional students, who are studying full-time in Yeshivas, as envisioned by Israel's founding Prime Minister David Ben-Gurion. However, the vast majority of Haredim should be expected to perform military or national service.

With respect to Israel's Arab population, this is another group that should also be expected to perform military or national service. Israel's Arabs work in Israel in every conceivable profession, from blue collar jobs to working as professors, judges, doctors and lawyers. Surely, as part of "equality," military or national service is a reasonable requirement in a country in which universal conscription is a necessity and a reality.

Israel's politicians and military leaders will need to take steps to ensure that the army or the national service can and will accomodate any unique needs of Arab conscripts, just as they have begun to take steps to ensure that Ultra-Religious soldiers can be properly integrated. They will also have to sort out security and loyalty issues. The flip side is that Israel's Arab minority population will also have to recognize that there is a price to be paid for living in the only truly free and democratic country in the Middle East. They should be prepared to participate in protecting that privilege. Ultimately, an army with full universal conscription in Israeli is likely to lead to better integration and understanding between diverent religious and ethnic groups.

If Israel does implement truly universal military or national service, it will then make sense to ask candidates for high level positions, including Supreme Court positions, about their past military or national service. They will probably still not be required to publicly sing "Hatikvah" but it seems entirely reasonable to expect that a Supreme Court judge would have performed military or national service in a country with universal conscription, provided that minority rights are fully protected.