First Step in Israel's "Legal Revolution" - "Reasonableness" Bill Passes

There is much to write about today's events in Israel.  Unfortunately, none of it is good news.  The Israeli Knesset today passed the third and final reading of a bill - called the "reasonableness law."  This was the first major bill that is a part of a collection of proposed laws put together by the current Justice Minister Yariv Levin.  The laws are intended to weaken the power of the Israeli Supreme Court dramatically, reduce its independence and enable the Knesset to override decisions of the Supreme Court (even after the party in power has hand-picked the justices).  

The right in Israel calls this all "judicial reform" while everyone else, from centre-right to left calls it a "legal revolution" or even a "coup."  

I have read various articles attempting to explain away these various proposed changes.  Some commentators have used the United States as the barometer for analyzing the changes and claim that if it only moves the Israeli legal system towards the system in the U.S., it must be a good thing.  Given the recent news about influence peddling in the U.S. Supreme Court, as well as the types of decisions the U.S. Court has been releasing, it seems hard to imagine that anyone who is sincerely interested in an independent and robust judiciary would be using the U.S. as a model.  Sorry to offend my U.S. readers.

Others have argued that changing Israeli judicial precedents through legislation is only a way of "restoring balance" to the system and balancing out the power of the judiciary against the power of the other branches of government.  But the Israeli Supreme  Court has actually interfered with the government on relatively few occasions.  For the most part, Prime Minister Netanyahu and the various right wing governments that he has led have enjoyed a great deal of freedom of action and have seen relatively little practical interference from the Israeli Supreme Court even though members of the current government that he leads argue that the country is "ruled" by the Supreme Court.  

But the concern in Israel - and the impetus behind the demonstrations is not one particular bill or law.  If the only law being proposed by the current government was this "reasonableness" law - (which is intended to change Israeli common law and bar judges from using "unreasonableness" or "extreme unreasonableness" as a grounds for judicial review of legislation of governmental action), then the Israeli public might not be so riled up.  

But the current government has 64 seats.  15 of those seats are from the Religious Zionist Party which is mostly made up of xenophobic, homophobic, fascists who would like turn Israel into an Iranian type regime, run according to their version of halacha - Jewish religious law.

Another 17 Knesset Members are from ultra-religious parties.  While these members are mainly interested in obtaining financial support for their religious institutions and their constituents, most of them would also like to see a State ruled by halacha.

Of the remaining 32 Likud members in the current governing coalition - there seem to be several more who are supportive of these extremists.  Yariv Levin, the current Minister of Justice, is one of these members.  His presentation in January 2023, that I have written about previously, was nothing less than a proposal to disembowel the Supreme Court of Israel and leave it with little power to serve as an independent judicial arbiter.

Just yesterday, the leader of one of the Religious Zionist parties, and the current Minister of Internal Security, Itamar Ben-Gvir stated that this "reasonableness law" was only the first step - the appetizer - and that the whole main course was yet to be served. Last night - he said "the salad bar is open."  

Surely, of all people, Israelis know what can happen to a democracy when fascists start passing laws.  It can happen quickly and dramatically.  And a sizeable number of Israelis recognize this and are out in the streets demonstrating and protesting.  In fact, they have been demonstrating since January 2023 when Levin first announced his plans - in a press conference that reminded me of a scene from one of the Batman movies where the villain announces his plans to take over the world.

Some have characterized Prime Minister Netanyahu as the "adult in the room" and argued that he would not let Israel become undemocratic.  But Netanyahu has his own concerns.  He is in the midst of a criminal trial and looking to end these proceedings and avoid jail time.  So while some Likud members were pushing him to try and reach some kind of compromise - his right fascist flank was threatening to leave the government and cause it to fall if he were to agree to any kind of compromise.  As a result the third reading of the bill passed 64-56.  No Likud members dared dissent for fear of being the ones to bring down the government.  The opposition Knesset members boycotted the third vote and the bill passed 64-0.

Senior members of Netanyahu's government are talking about next steps.  They have many different plans.  Firing the Attorney General and other non-political office holders in Israel without any concern about judicial interference.  Dismantling the Israeli bar association.  Putting the convicted criminal Aryeh Deri back into office as the Minister of Finance.  Passing a law to allow the current government to appoint all of the judges instead of using a balanced committee.  Passing a judicial override bill to overturn any decisions of the Supreme Court by a simple majority.  And even these laws are only a few of the more than 82 laws that members of this government are proposing.  Oh I forgot the proposed "discrimination law" that allows a company or an individual to refuse to serve others (LBGTQ+? Arabs? Secular Jews? Women?) because of "religious reasons."  (Granted this type of law has been upheld twice in recent years by the current U.S. Supreme Court but I think that was related to my earlier point...)

As a result of all of this, hundreds of thousands of Israelis are protesting.  Two days ago, more than 50,000 Israelis began a two day march from Tel-Aviv to Jerusalem - where they arrived in time to protest all day today in front of the Knesset along with hundreds of thousands of others.  But the bill passed anyways - and there are more bills to follow.  I anticipate that the protest movement will now ramp up the type and volume of protests.

One of the discussions has centred on military service.  Israel has a "people's army" where everyone is conscripted (even though there are many exemptions).  Afterwards, people serve in many different roles in a voluntary capacity.  Many of the volunteers, including Israeli fighter pilots and many others, have announced that they will refuse to appear for purely voluntary missions.  The number of military personnel sharing these sentiments has been growing.  The right wing response is that the army should be totally separate from politics - and that soldiers should report for duty no matter what.  In fact, some would like to pass a new law to deal with these issues and penalize those who refuse to appear for duty.  But the social contract that binds the soldiers to the state and to reporting for duty is based on their understanding that they are reporting to a democratic regime.   A large number of Israeli soldiers will refuse to report for duty if the perception is that they are serving an autocratic regime.   

How and where do we draw the line?  Israeli soldiers do not want to harm the state and want to defend it at all costs from external enemies.  But they do not want to carry out illegal orders or serve as accomplices for a regime that makes illegal or immoral decisions.  We may not be there yet - but in a government that includes 15 far right extremists, some of whom are cabinet members - soldiers are concerned that there may not be any judicial oversight to actions they are now asked to carry out.  That has already started to happen to the Israeli police forces - which are now being overseen by Ben-Gvir.

This government's short-sighted legal "revolution," enabled by Netanyahu out of fear for his own freedom, is causing economic problems as well.  Companies, including Israeli high-tech companies, are talking about leaving or reducing their investments in the country.  Individual Israelis are talking about leaving and finding work elsewhere.  The Israeli Shekel has sunk dramatically against other currencies (it fell by approximately 10% today).  There is a great deal of uncertainty and it is likely to get much worse.  Sadly, it appears that Netanyahu's legacy will be one of severe damage to Israel's unity and its fabric as a vibrant democracy - all in the interest of saving his own skin.  One commentator called it "Hanina o Heres" - "Pardon - or Destruction" meaning that Netanyahu would either get himself a pardon or he would take down the whole society with him.

All of this comes just two days before Tisha B'Av, one of the saddest days on the Jewish calendar on which we remember and commemorate the destruction of the first and second temples in Jerusalem.  The standard and traditional Jewish Rabbinical explanation - is that the Temples were destroyed (in 586 B.C.E. and then again in 70 C.E.) because of "baseless hatred" between different Jewish groups.  In an address this evening in Israel, one of the opposition leaders, Benny Gantz, warned that we must learn from the lessons of Tisha B'Av and find ways to work out our differences rather than take actions that could lead the country to an ever greater crisis.  Sadly, there is no sign, at this point, that Netanyahu's current government has any interest in approaching these matters reasonably.

I normally try to include some other comments in my blogs about different issues but I think I will leave that to my next blog.  Unfortunately, I have probably been watching and listening to far too much news and that is not giving me a warm and fuzzy feeling to end on a humorous note.

For those fasting this coming Thursday, I wish everyone a meaningful fast and I hope that Jewish people everywhere, though especially in Israel, will take the time to think about where we are today and what we need to do to stop things from deteriorating further.

Impending "Balagan" in Israel

It is Saturday night, the  8th of July - and things in Israel are heading towards a very intense week - and likely even more intense months to follow.  I haven't been writing too much lately even though there is definitely no shortage of material.  But I thought I would cover off a few topics with a bit of my usual spin.  I'll deal with the current legislation being advanced by the  Israeli government, the protests against it, Bibi's trial, Jenin and maybe some more upbeat topics...like sports, travel and whiskey...

The "Legal Revolution" or "Judicial Reforms"

As you might recall, the current Justice Minister, Yariv Levin, held a press conference in January 2023 to announce that he was going to be putting forward a series of bills in the Knesset to "overhaul" the judicial system.   I have discussed these bills previously. The short summary is that the combined effect of Levin's initiatives would be to reduce dramatically the power and independence of the Supreme Court in Israel, and the Israeli judiciary in general.  Power would be transferred, effectively, to the governing coalition which would be able to advance legislation, make appointments and take other actions without concern about judicial review or interference.  I am not going to rehash the full legal discussion here over each of the initiatives  - perhaps that is a discussion for another day - though you can find  numerous articles about the pros and cons of the different pieces  of legislation on various online  sites.  

Much of the Israeli public was shocked by Levin's  proposals.  The proposals were not a major part of the Likud platform in the election campaign and this was not an announcement to convene a committee or begin a public consultation process as to how  best to reform the judicial system. Rather it was a shot across the bow by Levin - announcing that he was simply  going to proceed to eviscerate the current Israeli  justice system.

Protests began across Israel, which ultimately led Prime Minister Netanyahu to put the Levin proposals on hold until after Pesach, Yom Hazikaron, Yom Haatzmaut, and other Israeli holidays and days  of observance.   Netanyahu agreed to  a proposal to hold consultations  under the  auspices of the President of Israel, Isaac  Herzog - to see if agreement could be reached on some changes to these proposals.  However, it seems apparent that Levin and his supporters had no real intention of diluting the proposals.  The "consultations" failed, as planned, and the governing coalition is now bringing the legislation back to the Knesset.

The first piece of legislation is the "reasonability law."  In Israel, judges have developed a  precedent for administrative review of legislation and/or governmental actions, where the actions taken can be challenged and overturned if they are deemed  "extremely unreasonable."  (Like the "patently unreasonable" standard for judicial review in Canada by a court in examining the decision of an administrative tribunal).  The Levin proposal is to legislate the cancellation of this line of authority and bar judges from using "reasonability" as a grounds for judicial review of governmental action or authority.  It is a major incursion into the sphere of judicial independence and it is intended to weaken the judiciary dramatically.

The other pieces of legislation are waiting in the wings.  This "reasonability law" is more or less the same bill that Levin proposed back in January - despite the "consultation" process.  

There is a great deal of opposition to this bill, which is seen by many as a major attack on the independence of the judiciary - and thus, a major attack on Israeli democracy, which, like any vibrant democracy, relies on an independent judiciary to remain democratic.  The bill is scheduled for a first reading in the Knesset on Monday July 10, 2023.  In response, the protest movement has called for massive demonstrations across the country including efforts to close highways, the airport, and other commercial activity if the bill passes its first reading.  (Like in Canada, the bill requires three readings to pass).  As of tonight, a range of companies and other organizations have started announcing that they will support the protests.  Hard to predict what is going to happen, but it looks like it is going to be very chaotic.

The Netanyahu coalition is also planning to proceed with a piece of legislation that is even more outrageous.  As you may have heard, the Israeli Bar Association recently held an election to elect its president.  A candidate supported by Bibi and his Likud party was roundly defeated by a candidate who opposes the judicial changes.  The Israeli Bar Association is the equivalent of the Law Society of Ontario (and other places) - an independent body, though a creature of enabling legislation - that governs lawyers and their conduct.  In response to the loss of the election, the governing coalition announced that it was putting forward legislation to disband the Israeli Bar Association, set up a different organization - and appoint the President.  Unfortunately, I am not making this up.   Part of the Likud justification is that the Bar Association is allowed to nominate two candidates to sit on the Judicial Appointments Committee - and Bibi and Levin would rather have pro-Bibi committee members (even though they could  not get them elected).  But disbanding the Bar Association?  Seriously?  Unfortunately, this is reminiscent of legislation that one might find in 1930s Germany.  If this bill passes a first reading in the Knesset, I would imagine that Israeli lawyers will pull out all the stops to fight this.  We might see courts shut down, lawyers on a general strike - and all kinds of  other protest measures.

Just these two pieces of proposed legislation are causing so much rancour that there is already a sense that all hell is about to  break loose.  But the  government also has a whole series of other bills that it wants to pass.  I am not going to go through all of them now - but the overall effect of the proposed legislation is odious.

The Demonstrations

Demonstrations against the current government's proposed legislation have been taking place since Levin's announcement.  The demonstrations peaked just prior to Bibi announcing a temporary freeze of the judicial overhaul.  Now that the legislation is being brought back, the demonstrations have been ramping up.

Early this year, things were almost uniformly non-violent.  The Israeli police responded in fairly mild fashion.  There were few arrests and very few incidents of violence, police brutality or major confrontations.  

Since then, the extreme right elements of the current coalition have been calling on the police to expand the use of force against protesters (even though the  protests have been non-violent).  The police chief refused to accede to these orders and resigned.  He was replaced by a police chief more sympathetic to the current government and the police have begun using water canons and greater force to disperse protests.  There have also been incidents of pro-government supporters showing up at protests and attacking protesters. There were three incidents of car rammings this week by pro-Bibi supporters attacking anti-government protestors.    Several protesters were hurt, some seriously.  So far, none of the attackers have been charged.

The former police chief warned that police escalation in the use of force would eventually bring about increasingly widespread protests - which might even become more violent.  I guess we will see what happens in the coming weeks.  If the government proceeds with its plans to enact the "reasonableness law" and disband the Israeli Bar Association, I think things here are likely to get very crazy and unpredictable.  I'm not actually convinced that even Bibi will actually proceed with all of these plans but he seems to want to get something passed to appease his far right coalition partners.

Jenin, Terrorism and Pogroms

Over the past few months, Israel has faced a dramatic rise in terrorist attacks on civilians, especially in Judea and Samaria (the "West Bank") but also in other areas.  Much of this violence was tied to terrorist groups based in Jenin, a city and refugee camp in the Territories.  As you may have read, Israel launched a fairly large scale military operation in Jenin last Sunday to fight back against this wave of terrorism.  It was a short operation that ended Tuesday night.  Large caches of weapons were confiscated.  Several members of Hamas and Islamic Jihad were killed and some were arrested.  It is unclear whether this incursion will have accomplished any of its goals but Bibi's coalition  members were urging Bibi to take some  type  of action in the face of a widespread string of attacks.

Aside from Palestinian terrorism against civilians in Judea and Samaria - and in other areas in Israel, there have also been several attacks by Israeli settlers against Palestinian civilians.  Some of these attacks have involved looting of Palestinian villages, beatings of civilians and other violence. Many  Israelis have called these attacks "pogroms" and have urged the Israeli police to arrest and prosecute those responsible.  A small number of settlers have been arrested.  I'm not sure what charges, if any, have been formalized.

Some of Bibi's coalition members, including Ben-Gvir and Smotrich in particular, but also others, have been sympathetic to the settlers and dismissive of any attempts to punish the perpetrators.  This is also something that may escalate dramatically in the coming weeks and months - the level of violence in Judea and Samaria - going both ways.  Extremist Palestinian groups are calling for a "third intifada" and settler  groups are calling for increased use of force against Palestinians.  Let's just say I haven't heard any rosy  predictions.

Bibi's Trial

In  the midst of all of this, Netanyahu's criminal trial has been plodding along.  I have not been attending the trial and so I only have bits of information coming  from released parts of testimony and the  analysis  of several  commentators.

A couple of weeks ago, the judges hearing the case apparently  called on both sides to try and negotiate a deal  of some sort - and suggested that it would be "difficult" for the prosecution to succeed in proving  bribery in at least one  of the cases.

On the  other hand, the key state witness, Arnon Milchen, gave  testimony over the past couple of weeks about the  various  gifts that he  gave to Bibi and what he  got in return.  Milchen seems to have suggested that he is still good friends  with Bibi.   He testified remotely in London - where  Sara Netanyahu showed up to watch. Before the start of one day of Milchen's testimony,  she gave him a big hug and a kiss - trying to show the judges that Milchen only gave the  Netanyahus all the gifts because  they were such good friends.  

According to some analysts, Milchen  was easily manipulated by Bibi's lawyers during  cross examination and wound up giving dramatically different testimony  than the evidence  he gave  investigators during  the  initial  investigation.   This is a problem  for the prosecutors  who have been relying on Milchen as a  reluctant "state  prosecution witness."

If there is no deal, this trial might still continue on for two or  three more years, according to some analysts.  It sounds very entertaining but  hard to predict  what will happen.  I still stand by my  original prediction that there will probably be some kind  of deal before there is ever a final verdict - or Bibi's governing coalition  will succeed in legislating his legal problems out of existence.  That being said, Bibi's defence may have helped themselves quite a bit by taking  advantage of this reluctant state witness - or perhaps, by working with him outright.

Sports News

As you might have heard -  it has been a great year for  Israeli football (soccer to  those of us from the  other  side of  the  pond).  First, the Under 20  men's team wound  up taking 3rd place in the U20 World Cup. That was incredible -  especially Israel's huge upset win over Brazil in the quarter finals.  After that, Israel's U21 team made it to the semi-finals in the U21 Euros.  The team was beaten soundly by England - but was a very respectable showing.  As a result, Israel's  national  soccer team has made it into the Olympic games which will take place in Paris in 2024.  Now that is exciting for Israeli football fans.

Aside from the  odd football game - or soccer - whatever, I haven't really watched much in the way of  sports, since it is off-season for ice hockey and  NFL football.   I did watch  the Blue Jays this afternoon (night time in Israel) - as they were "no-hit" by the lowly Detroit Tigers.  The Jays are doing reasonably well  but I have not been watching very many games.  Difficult to do with the time change.  Perhaps I will have the chance to see a few games - or attend in person when I am back in Toronto next week.

I suppose the really big news in sports this year - which has nothing to do with my blog, is the play of generational superstar Shohei Ohtani.  I haven't seen him play this year - but, as you may have seen or heard - he is among the league leaders in batting average, home runs, hits, pitching average, strikeouts,...There are very few players in baseball who pitch and  also play regularly  on the offensive side of the field.  His accomplishments so far this year are super impressive and have led people to start comparing him to the great Babe Ruth.  I think it is early for that - but that gives you a sense of how dramatic his statistics have been.

Israeli Whiskey

I am not sure if I discussed Israeli whiskey previously, but even if I have, I will mention the M & H Distillery once more.  M & H stands for "Milk and Honey."  This single malt distillery in Tel-Aviv has been making some terrific whiskey - including whiskies that have won worldwide whiskey competitions.   I had a great time visiting their distillery recently - and I would strongly recommend a tour there on your next visit to Israel - if you enjoy some decent whiskey.  The accompanying cheese and  bread plate is also pretty tasty.  It's a kosher place - closed on Shabbat of course.  The actual whiskies are sold by the bottle and are not super cheap but the tour and tasting is priced reasonably and is lots of fun. And educational.

Other Travel

As you might know, there are several discount airlines that fly to different destinations in Europe from Israel.  Many of these flights cost less than the price of one night in a hotel here. We recently flew to Rome, Italy  on Wizzair.  I can't say that the flight itself was an enjoyable experience.  Wizzair is about as "bare-bones" as it gets - they don't even serve free water on the 3.5 hour flight - and a "basic" ticket only allows travellers on the plane with a small  knapsack.  If you want to add a trolley type carry on bag - you pay about as much as the cost of the ticket for the bag.

On the other hand, Rome is such a fantastic place to visit that the short flight itself becomes secondary.  I should mention that there are quite a large number of Kosher restaurants now in Rome - including pizza and other dairy places, meat restaurants and even a "Lybian Kosher Restaurant" - called "Little Tripoli."  Rome also has more than 10 active synagogues with daily minyans - and a Jewish museum.  

We certainly visited all of the major tourist sites in Rome as well - and had some fantastic coffee, gelato, food and wine - all over the city - but there is quite a bit more going on now in terms of Jewish culture than there was the last time I visited - though I have to say that was quite a few years ago.

That's about it for now - I hope you have found some of this interesting - and I wish everyone a great summer.  Back in Toronto shortly (if I can get out of the Israeli airport with all of the planned demonstrations) so I may not have another update for a while but I am sure that there is bound to be quite a bit of news coming out of Israel in the months ahead.

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 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.