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.

Dramatic Escalations across Israel in response to Netanyahu Action

I don't usually write two consecutive blogs in such a short period of time - but things have taken quite a turn in Israel - and it is very unclear where all of this is headed.

As I mentioned in my last blog, the Israeli Minister of Defence, Yoav Gallant, a stalwart Netanyahu supporter and high ranking member of the Likud party announced on Thursday March 23rd - that he was going to hold a press conference at 7:30 p.m.  Supposedly he was going to announce that he was calling on Prime Minister Netanyahu to slow down the current "judicial reform" and meet with opposition members to try and negotiate an agreement.  Netanyahu summoned Gallant to a meeting and apparently cajoled him into cancelling his  press conference.  Shortly afterwards, leaks appeared indicating that Gallant had told Netanyahu  he would wait a few days to see how Netanyahu was dealing with things.

However, later that evening, Netanyahu held a press conference and announced that it would be full speed ahead and he would not consider slowing down at all.

As a result, Saturday night saw the biggest demonstrations to date across the country.  Today, Gallant held  a press conference and announced that he could not support Netanyahu's current legislative program and - that Netanyahu was endangering the country.

This evening, Netanyahu fired Gallant from the Minister of Defence position.  As a result, tens of thousands Israelis took to the streets, blocking highways, roads and protesting in a wide range of places.  Since the demonstrations started earlier this evening, police have estimated that numbers have exceeded 700,000 Israelis currently in the streets demonstrating across the country.

It has become especially clear over recent days, that Netanyahu will not stop at anything until his judicial coup is completed and he has his "get out of jail free card."  Even though he was warned by a close ally that his policies were endangering national security, Netanyahu simply chose to disregard the warnings and double down on his proposals.

There have been some articles in different newspapers (including one in the National Post yesterday) arguing that this legislative agenda being proposed by Netanyahu and his allies is really no great concern to Israel as a democratic state.  But try reconciling that thesis with one of today's announcements - Yariv Levin - the "architect" of the proposed emasculation of the Supreme Court wants to use his new legislation to fire the head of the Israeli Supreme Court - and appoint a hand picked buddy, a "professor" from a second tier Israeli law school - to take over as the President (the "Chief Justice") and advance Levin's extremist policies.  Levin also wants to appoint other judges to the Supreme Court immediately to tilt the balance of the court.

Levin and his allies have also floated the idea of extending the  period of time before the next election  Further, Levin has stated that this is only his "first stage."

Hundreds of thousands of Israelis have been demonstrating to indicate that they will not give up their democratic rights.  But it  is not only demonstrators.  Soldiers are starting to refuse to show up for duty.  Police offers are supporting the demonstrators.  There are major fissures going on  - and Netanyahu is allowing the extremists to continue to drive the bus.

The government is planning to try and ram through the Knesset several pieces of legislation this week - including a law to reinstate convicted criminal Aryeh Deri to a ministerial position and another law to allow the Knesset to override any decision of the Supreme Court.  But it is now becoming unclear that the Likud party will be able to get all of its members to support these extreme legislative initiatives.

If the legislation does pass, the  civil unrest will become increasingly widespread across the country.  The army will become increasingly fractured.  The Supreme Court will face dramatic tests to the limits of its authority - as these pieces of legislation are challenged in that Court.  And there will be strikes and demonstrations  across the country.

If the legislation is put to a  vote and does not pass - this government will almost certainly collapse.

So overall, the coming week - and indeed the coming months are likely to be extremely tense, dramatic and unpredictable.  One can only hope that saner heads will prevail and responsible Knesset members will find a way  to get things under control.  Unfortunately, Netanyahu is showing no signs that he will be one of those "adults  in the room."  In fact, it has become completely clear that his own flagrant conflict of interest has made him entirely unfit to serve as the Prime Minister until his personal criminal issues are resolved.

Massive Demonstrations in Israel, some sightseeing and Pesach Preparations in Israel, some

 

We are about 11 days  before Passover and Israel is in the midst of one of the most tumultuous periods it has ever seen.  Police have estimated that  more than 200,000 people attended demonstrations in Tel-Aviv tonight and tens of thousands of others protested in other cities across the country. In the photo on the left, you can see police deploying water cannons after protesters blocked off the main Tel-Aviv highway  - the Ayalon - for more  than two hours.  As we are now close to midnight - police are stepping up the amount of force that they are prepared to use to disperse the protesters.  Unlike what might take place at other demonstrations in other places - the police have, generally, been using very moderate levels of force.  They are not (yet) coming at protesters with  shields, helmets and  batons.  Many are on horseback - but many others are not even  wearing helmets or unholstering any weapons. Instead they are trying to push, persuade, cajole - and  sometimes arrest protesters.  Certainly, some officers have  become much more  violent and there have been several instances of injuries to protesters.   But by and large, from the reports and live videos, the police have been relatively patient and non-violent.

As you have probably heard by now, the protests are against legislation that the current Netanyahu government is trying to push through.  I reviewed the essence of the legislation in an earlier  blog, here.  Netanyahu and his allies call the legislation "judicial reform" whereas the opposition calls it a "judicial coup."  The Likud member responsible for trying to pass a whole array of legislation is Yariv Levin, who has stated that is only the "first stage" of his "reforms."

Commentators from across the political spectrum from the far left to the centre right have characterized this whole legislative program as a dramatic change to Israel's legal status quo.  In an nutshell, the laws that have been proposed would weaken the power of the Israeli Supreme Court dramatically, change the appointment process from a relatively non-political process to one that is almost entirely political, allow for the Knesset to override any Supreme Court decision and make other changes that would remove most  backstops from the ability of the Knesset, with a bare 61-59 majority to pass just about any legislation.

With no judicial oversight, and a far-right wing government intent on enacting legislation in all kinds over areas, the prospects are frightening.  But reaction from a wide range of Israeli citizens, institutions, businesses and other sources has been energetic, aggressive and powerful.  Various army personnel have indicated that will refuse to serve the country in any type of voluntary capacity.  Businesses have threatened to leave the country.  Hundreds of thousands of Israelis have been demonstrating regularly.

For all of those protesting, they are not willing to see Israel turn into Turkey, Russia, Hungary or other countries led by military strongmen.  Even within Netanyahu's Likud party, there are a growing number of dissenters, who are being pressured from all directions.  If the number reaches  5 or 6 Likud party members who are willing to stand up and block the legislation - or at least abstain, the government could even face an existential threat (which didn't really seem possible or likely just a few weeks ago). Tonight, the Likud defence Minister, Yoav Gallant, held a press conference and announced that he would not support the legislative process.  Shortly afterwards, several other Likud members expressed their support for Gallant.

Meanwhile, Prime Minister Netanyahu was in London for meetings and a weekend getaway.  He has not officially responded to Gallant yet.  On Thursday, Gallant had indicated that he was about to hold a press conference at 7:30 p.m.  However, Netanyahu  summoned Gallant to a meeting and Gallant cancelled his press conference.  According to reports, Gallant gave Netanyahu some more time to try and work things out.   As it turns out, Gallant wasn't willing to give the Prime Minister more than two days.

So now the question becomes whether Gallant has enough support behind him in the Likud party to stop the legislation.  Since the Netanyahu  bloc currently has a 64-56 Knesset majority, Gallant would need the support of 4 other Likud members to ensure that the legislation could be blocked.  This would created a huge political fissure for the Likud party and could well lead to another election.  It may also cause the party to split into two or more factions.  

Very unpredictable.  On the one hand, many moderate Likud members are not in favour of extreme legislation, which is all rather transparently designed to keep Netanyahu out of  legal trouble .  On the other hand, the Likud party members would like to stay in power.  After finally winning an election, even though their "win" is only made possible with the support of extremists, they are not anxious to relinquish power.  I think we are in for a very dramatic week and - in fact - very dramatic months to come in Israel.

Overall, it is comforting to see that hundreds of thousands of Israelis are not prepared to watch Israel turn into a de facto dictatorship beholden to extreme factions.  Netanyahu supporters argue that he won the election  and is now entitled to govern.  While that is true, an election win does not give the winning party the right to change the ground rules and emasculate the judiciary.  Even if there is room for discussion about adjusting the balance of power in Israel between the different branches of government, that type of change is one that must be undertaken carefully, with the input of wide range of stakeholders and not simply instituted by someone facing an array of ongoing criminal proceedings.

A Bit of Travelling

On a completely different note, we recently managed to visit a few places in the south of Israel that were very noteworthy.

Yatir Winery

Driving down to Eilat, we stopped  near Arad at the Yatir winery.  Yatir produces some  of Israel's most acclaimed wines, including its flagship Yatir Forest, a delicious but costly blend that has won prizes at wine competitions around the world.   We were able to join a tasting group and sample four different wines while enjoying a nice platter of cheese and  vegetables.  (No Forest was poured...)  The wines were all quite good, the presenters were engaging and friendly and it was a worthwhile stop.

Yatir is near Arad - about 2 1/2 hours away from Eilat.  Don't worry - we had a designated driver.  We finished up  at the winery and got back into the car to continue our drive south.

Eilat

We don't go to Eilat very often.  As you  may know, it is pretty much the southern most point in Israel.  During the summer, temperatures can reach 40-45C (104F-113F) but it is a "dry heat."  Situated on the Red Sea (Probably the "Reed Sea" originally), Eilat offers some terrific snorkeling, scuba diving, and all kinds of other beach activities.  It is all situated in  a small area with a range of over priced hotels.  Eilat is packed in April during Passover and throughout the summer.  It is also packed over the high holyday season in September and  October.  

Eilat, Israel

While we were there, it was only about 22-25C (72-77F) and the water was a bit chilly.  I still checked it out - (since, after all, I am used to Ontario lake water) but not for very long.  Eilat is a popular destination of Israelis for shopping since it is a "tax-free zone" for many products.  So, for example, you can get a cell phone in Eilat for about 18% less than it would cost in other parts of the country.  Many other items are also considerably cheaper in Eilat.

Timna Park

After spending some time in Eilat, we drove over to Timna Park - which is an Israeli National Park located about 20 minutes from Eilat.  Timna is one of the regions largest copper mines - a site at which copper was mined from the 5th century BCE and possibly by King Solomon in the 10th Century BCE.  The views were breathtaking and  since it was March, the temperature was very moderate.  We even had a bit of a breeze.  

Visitors can drive from site to site within the park - and then do a mixture of hiking and driving.  Alternatively, visitors can hike the whole park on a four to five hour trail.  I would imagine that in July or August the heat would be unbearable but in March it was an amazing experience and one that I would highly recommend.  We climbed up to the top of one of the mountains, saw some amazing ancient mining sites, some beautiful views and a variety of interesting birds.  


  
  

There are a variety of landmark rock formations, all with the reddish colour due to the presence of copper in the rocks and surroundings.  The park is very picturesque.  At the end, there is a Visitors Centre, where visitors can make their own multi layered sand art in small bottles - or buy larger - pre-made bottles.  We probably wound up spending about 3-4 hours at the park overall.

Beit Govrin-Maresha National Park

Our last stop was Beit Govrin -Maresha National park, which is about 1 1/2 hours from Ra'anana.

The area, known as the "land of a thousand caves" features a large network of the "Maresha Caves" which were inhabited by the Phoenicians.  There are ancient olive presses, columbarium caves for raising pigeons, burial sites, Roman baths, an amphitheatre and many other fascinating sites.

There are too many photos to include since we visited several different caves - including a limestone quarry, a water reservoir and some of the columbarium caves.  Some caves were extremely deep and winding.  They were well lit - and cavernously large.  But if you are afraid of depths - this could be a bit frightening.

I thought it would be interesting to include some comments about these places to get away from the strict political news and commentary and cover some other topics.

Now it is back to Pesach preparation.  As anyone who observes Pesach knows, getting everything cleaned up, changing over the whole kitchen, preparing food for large groups of guests and planning the Seder  itself is all quite a bit of work.  So there is no shortage of things to do over the next 10 days or so, while watching Israeli political news and also working regular hours....

I will probably provide one more update just before Pesach - and perhaps by then we will have some better ideas about where things are heading politically.

Supreme Reforms in Israel and Other Pressing (and not so pressing) Issues

As  we head into Purim 2023 (5783 according to the Jewish calendar), which starts tomorrow night - there is so much going on that it has  been difficult for me to find the time to write some updates.  I am back in Israel for a bit - and planning to read from Megillah Esther tomorrow night at our shul in K'far Saba.  We will also have the chance to read Tuesday morning, followed by a festive meal in the afternoon - a "Purim  Seudah."  

Here in Ra'anana, it was hotter than 30c today (more than 86F outside).  The streets of Ra'anana were  closed for the "Adloyada" parade - with floats of kids in costumes, loud music, and all kinds of festivities.  We took a walk and it was simply bustling and  vibrant - with kids (and sometimes their parents) in costume starting the Purim celebrations.  A nice distraction  I suppose from everything that is going on politically.

I don't intend to  dedicate  this blog  to  a full and detailed analysis of all of the political events taking place  here but I do want to spend some time dealing with a few major issues.

Israel's "Judicial  Reform"

First of all, the headline event in Israel is the proposed  "judicial reform."  You may have read or heard a variety of opinions  on this from different commentators - including  a  podcast by Elliot Abrams - or a Conrad Black article in the National Post.  You can also read any of a number of different articles in Haaretz or other publications  with other viewpoints.

The bottom line is that no matter what spin some of the right wing  commentators might try to put  on this, the current Israeli government's proposals amount to a dramatic weakening  of the power of the Supreme Court - and the transfer of that  power to any bare majority of the Knesset.  

The proposed legislation, which has passed a first reading  and may well pass second and third readings this week - involves four main proposals.  

The first proposal is to remove the power from the judges to conduct a judicial review of legislation on the basis of certain grounds that  have  been defined under  decades of Israeli law - including the ground of "reasonableness."  Although Israel  does not have a formal written  constitution, Israel's "Basic Law" has developed quasi-constitutional status and has provided the framework for judges to overrule legislation if it is deemed to violate the basic law.  The current governing  coalition argues that this tilts the state's power into the hands of the judges  rather than the  elected representatives.  The Netanyahu coalition would like to remove that power from the courts and, essentially,  allow the government  to pass any  type  of legislation it likes, with a bare majority and  with no judicial oversight.  They point to Canada's "notwithstanding  clause" in support of this  concept and the second  proposal.

The second proposal is to allow the Knesset, with a bare majority of any type, to overrule any decision of the Israeli Supreme Court.  As I mentioned, the proponents of this change cite Canada's "notwithstanding clause" as their source of inspiration for this legislative idea.

The  third proposal is to change the way judges are appointed so that the government in power is able to override other stakeholders and install any judges that it wants to install.  Here, the proponents of this idea rely on the  American experience.   Although the U.S. Senate can reject judicial  appointments, it rarely happens.  Trump is clearly the example of  how, in one term, a President can completely reshape the court politically.  The Netanyahu government is salivating at the prospect of installing a  "yes" court of the type that Trump managed to install in the U.S.

The fourth proposal involves turning the Attorney General position  into purely a political appointment and requiring appointed legal advisors to provide the advice and support that the  government is requesting - rather than  objective and legally supportable advice.

There are reasonable arguments about these proposals - especially when examined  individually.  

Defining the limits of "judicial review" in any democracy is an extremely important issue.  Ideally, a country should have a written constitution  to set  these limits and Israel does not.  But even in the absence of a specific written  constitution, the common law system  builds legal jurisprudence over time in the form of precedents.  Judicial review in Israel has been defined and delineated by Supreme Court Judges for more than 30 years and, in some cases, since the 1950s.  The idea of simply taking away power from the courts and overturning a wide range of judicial precedents, legislatively, does seem somewhat questionable.  Especially if it is for a particular political  goal.

The "notwithstanding" clause is less defensible. Sure Canada has one but nobody really points to it as one of highlights of the Canadian Charter.   In fact, it is probably one of the  key flaws, even though it was  part of a political compromise used to reach agreement on the Charter in the first place.  But  over the past few years, its use  has become ever  more frequent.  What use are a bunch of fundamental  guarantees of rights if they can  simply be overridden by a thin  majority?  Once the use of a notwithstanding  clause becomes politically acceptable and common, protected rights  lose their value. They  are no longer "protected."  Some members of the Israeli opposition - even  some on the  right - have proposed, at a minimum, a law that would limit the use of  this "notwithstanding" clause  to  situations where 2/3 or  3/4 of the Knesset would support it.  That  would be  better and might be the basis for a compromise on this issue but it is not currently being  proposed.

There is also a reasonable argument about how judges are appointed.  It is unclear which country has found the ideal approach to appointing judges.  One would hope that they would be appointed because of their  legal and academic qualifications and their experience  and not simply because of their viewpoints on certain political issues.  In Israel, 3 judges currently sit on the panel that appoints judges to the Supreme  Court - and any appointment has to get past these three judges - since  three members of the committee can  veto an appointment.  The Netanyahu government argues that this means the judges "appoint themselves" to the bench.  This is simply not true.  At the same time, there is a reasonable  argument that judges should not have  deciding power in appointing new judges to the Supreme Court.

The current proposals aim  to Americanize  the Israeli system and allow any sitting government to appoint the  judges it would like to see on the bench. This is a marked departure from the way things have  been  done in Israel since the  1950s and would represent a  significant degradation of the level of judicial independence  in Israel.

There are also reasonable legal arguments about the role of the Attorney General.

But the bigger issue, aside from examining each of these  proposals individually, is to look at the whole bundle of changes as  one  group of proposals and  to   assess the effects of these  changes and the context.

You have a current Prime Minister, who is, himself, facing a series of criminal charges  and  an ongoing criminal trial that is still in progress. As the  Prime Minister, he is forging ahead with a plan to weaken the court system, install new judges, limit the power of the court itself and then  provide that a bare majority (which he  now has) can override any decision of the Court.  

Moreover, he is also looking to pass legislation to reinstall Aryeh Deri, a thrice convicted criminal, into a senior cabinet  position in the  Israeli government even after the  Supreme  Court ruled 10-1  that he could not serve as a  cabinet minister because of these convictions.

In short, there is little argument that this whole "judicial reform" plan is a calculated  effort to weaken  the power of the courts, eliminate judicial oversight and allow Netanyahu and his government to  take control over the  courts, presumably as first step towards eliminating his own legal challenges.

Having a strong, independent judiciary is one  of hallmarks of a liberal democracy.   For  this reason, this power grab by Netanyahu and his cronies  has  caused so much backlash in Israel. It is a  recognizable and  transparent attack on Israel's liberal democratic character and the type of step that could  move Israel along the path towards Turkey, Mexico, Russia or other  autocratic countries.

As the  Netanyahu government continues  to advance these legislative initiatives, the  number of protesters continues  to increase. This past Saturday night, there were more than 200,000 demonstrators in Tel-Aviv and hundreds of thousands in other places across the country.

Despite some of the spin - this is not simply "sour grapes." Although Netanyahu and his supporters  won the election and earned the power to form the government, they were not  granted the power to gut the Israeli Supreme Court and pass legislation that would significantly erode the liberal democratic nature  of the state.  I would expect that the size  of these demonstrations  will continue  to increase and that we  will see other types of protests including general strikes and  other disruptions.

Terrorism  and Palestinian Issues

There  has  been a significant increase in the  number of Palestinian attacks on Jewish  Israelis in Israel  and in the  territories.  But that increase, at this point, cannot be  blamed on this relatively new  government.  There had already been a growing number of attacks under the previous government.

However, under previous  governments, the response  to these attacks was controlled by responsible  members of  government, even though there were certainly excesses from time to time.  Israel now has extremists in position of authority, controlling the  police and the army - or trying to, at least.  (The lines of authority are not entirely clear in Netanyahu's cabinet).

Following  an attack last week in which terrorists killed two  Jewish Israelis, Israeli settlers went on a rampage and attacked the town of Huwara (the town where the  terrorists were from), killing at least one resident of the town and injuring  more than 100, some  critically.   The government and the army failed  to stop  or prevent the attack.  Since then, two of the attackers have been arrested.  But one  of Netanyahu's Ministers, Betzalel Smotrich, said that the whole  town  should have been burned  down.  He later retracted his comments.   

The attack was nothing less than a "pogrom" and must be condemned  in the strongest of terms.  Going on a rampage and attacking innocent  civilians cannot possibly be part of the policies of any supportable government.  

There are several other issues but I will leave  some of them for a later blog.

And Now For Something Completely  Different: A few Other Issues:

Sports

As you know from  some of  my earlier blogs,  I do enjoy watching  NFL football and  I am  big fan  of the Buffalo Bills.   A very  promising season came to a disappointing ending, but I digress.  I came across an interesting  article about the  issue of violence in football and how  it meshes with Jewish values.  I found  it to be thought provoking, though I did not agree and  still watched the  game (which was a very exciting  super bowl).  Here is the Article - entitled American Football:  A Case  Study in the  Limits of Halakha.  Ultimately, my take is this.  The learned Rabbi uses  violence and the risk of injury to propose barring  the watching  of spectator sports from a perspective of Jewish law.  But  note that the Rabbi does not cite any alternative  sports as a more gainful pursuit.  He mentions hockey but indicates that  he knows nothing about  it.  Ultimately, his main point is that observant Jews should  simply spend their time studying  Torah  or engaged in other pursuits and presumably shouldn't waste their  time watching any spectator sports.

Many  sports involve the  risk of  injury - whether that includes  Olympic  diving, cycling, gymnastics, skating competitions  or the major competitive sports like football, hockey,  basketball and  soccer.  When competitors push themselves to the limit - in competitions that test the "Swifter, Higher, Stronger" motto, there are bound to be injuries.  Sometimes, recognizing the fact that these athletes are out there on the  edge is what makes  their accomplishments so exciting and so compelling.

I take the point that the  NFL may have more of an obligation to address  long  term injury  including brain injury.  I for one, would also support, for example, a rule that all hockey players have to wear  full face protection.  

But  overall, I'm not sure that I am prepared to agree with the  Rabbi  that all spectator sports are intrinsically a waste of time - though he  is not the first one  to make this argument.

I would  reject that argument, especially, as a Toronto Maple  Leafs' season ticket holder -  who continues to hope that the Leafs' Stanley Cup drought, which has  been in place since 1967, will  end  eventually  and the Maple Leafs will host a Stanley Cup  parade.   Ice Hockey is,  of course, a religion of  its own in Canada.  As  someone  who has played, coached and attended hockey games since the age of 6, I am not prepared to  conclude that involvement in hockey, as a whole,  somehow clashes with  any particular Jewish values.  In fact, when our kids were  growing up in Toronto,  all of the Jewish day schools participated  annually  in a one day ice hockey tournament - with as many as 12-14 teams participating from different Jewish day schools.   

The Toronto Conservative shuls, for  years, also ran a shul softball league.

Finding ways for people to stay in shape, often by getting  involved in different  group sports is probably something that should be encouraged and in accordance with  Jewish values, even though we  might prefer those sports that are less likely to lead to serious injury.  Often people who play the sports are also spectators of the professional versions.  

From the  perspective of a Torontonian, as you might know, the Maple Leafs made a host of trades and roster changes at the NHL trade deadline  to try and improve their playoff chances.  Unfortunately, they did not pick up a new  goalie.  Although I am hopeful that these changes  will improve the team, the  Leafs will have to play Tampa and Boston  in the first two rounds (Boston only if they beat Tampa).   I am not  entirely optimistic that they will be able to beat Tampa, let alone Boston.   But one  can always  hope.

This will involve some  very late night  viewing when  I am  in Israel.  The games tend to start at 2 a.m. or even 3 a.m.  Israel time.  I guess I will have to keep Toronto hours, even while spending time in Israel.

I think that is about all I have the time or energy for at this point, but I will take the time to wish everyone a happy Purim and hope that you all get the chance to eat some really good hamentaschen, hear the Megillah and, yes, have a drink or two, despite the new Health Canada guidelines (which propose eliminating all alcohol consumption).

I will try to address some other issues shortly including Israel's perspective on the Russia-Ukraine War, other proposals of the Netanyahu government and whatever else comes to mind, including perhaps my take on this year's Oscar candidates (I have gotten through 9 of the 10 nominees).  For now, as Torontonians emerge from 25-30 cm of new snow - I plan to enjoy the hot weather here in Ra'anana over coming weeks.

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.