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

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

Supreme Court of Israel Hearing on "Reasonableness"

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

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

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

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

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

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

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

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

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

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

Some of the  questions being  discussed....

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

How are the rights of minorities protected in Israel?

How can  the Basic Law be amended? 

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

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

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

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

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

Sports News

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

Entertainment

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

Podcasts

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

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

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

Holidays

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

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

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

Supreme 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.