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| Esther Hayat, President of Supreme Court |
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.
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