We have already had the pleasure of hearing Professor Moshe Koppel, the Chairman of the Kohelet Policy Forum, on our podcast about a year and a half ago when he discussed the Nation-State Law, which he helped write. The Kohelet Policy Forum is widely seen—consider Haaretz on the left and JNS on the right—as one of the primary forces advocating the Judicial Reform (or Judicial Revolution depending on who you ask). Most recently, a column by Gil Troy in the Jerusalem Post wonders whether / hopes that Koppel and Kohelet can mastermind a compromise and save the Jewish state, which is now being ripped asunder in the worst internal crisis it has ever known, a crisis largely sparked by these proposed reforms.
A number of weeks ago, we hosted Professor Yaniv Roznai of Reichman University, who explained in great detail why he believes that the proposed Judicial Reform will end Israel’s democracy. With hundreds of thousands of people in the streets over the past months, with the court, the economists, leading generals past and present, Bloomberg, The Financial Times, the governments of the US, France and Germany, and many more all arguing that this Reform is a terrible idea, it seems only intellectually fair to hear from someone who supports it and helped shape it to get the other side of the argument.
There is no one better in Israel to do that than Professor Moshe Koppel. (If you have the time, it’s a great idea to listen to Roznai and Koppel one after the other to get the full complexity of the issue.)
Moshe Koppel is a professor emeritus of computer science at Bar-Ilan University and the founding chairman of the Kohelet Policy Forum. His most recently published book is Judaism Straight Up: Why Real Religion Endures. He has co-drafted two proposed constitutions for Israel; several laws that he’s drafted have been passed by the Knesset, including the controversial Nation-State Law which we mentioned above.
Our conversation, from which I learned a great deal, went quite long, so we have divided it into two segments, one of which we are running today, and the second of which will run a week from today. In today’s episode, he lays out elements of Israel’s judicial system, standing and justiciability, that he views as problematic for a democracy. In the second half of the conversation, which you can hear next week, he does note that he opposes the Knesset’s being able to override the Court’s Judicial Review and makes other noteworthy comments that are different from what one might expect.
Professor Koppel is one of the key people in Israel who could possibly help engineer a compromise and keep Israel from going off the rails. Knowing what he believes is thus critical to understanding Israel today.
The link above will take you to the audio of the first half of our conversation, the second half of which will follow next week. Below, for those who prefer to read, you’ll find a a transcript, which is being being made available exclusively to paid subscribers to Israel from the Inside.
Impossible Takes Longer, which addresses some of the above themes, will be published this April. It’s available now for pre-order on Amazon and Barnes & Noble.
We have had the pleasure of having Professor Moshe Koppel on our podcast before, I don't know if it was about a year ago, maybe a little bit more, to talk about the nation state law. That was a law which in its own time was controversial. It feels almost quaint at this point, but it was a controversial law. And Professor Koppel and I had a conversation about it, and he made what I thought was an exceedingly a very, very compelling, and articulate case for the nation state law. One could agree or one could disagree, but it was really, I think, the finest case that one could make.
We find ourselves now, whether it's a year, a year and a half later, in a very different time, we're having this conversation towards the very end of February 2023, and Israel is in a very complicated place. On the security front, the West Bank, Judea and Samaria is ablaze. And on the political front, there is lots of movement inside the government and it looks a little bit unstable. And the most important issue, of course, is the issue of judicial reform, which is the hot topic we have had on the podcast already one person, Professor Yaniv Roznai, who is the assistant dean of the law school at Reichman University, which used to be called IDC, who is vehemently opposed to the reforms and made his case at great length on our podcast a number of weeks ago. And when he did that, Professor Koppel was kind enough to reach out and say, in the spirit of the nature of this podcast, which is by definition not left, not right, not religious, not secular, but tries to embody the mosaic of Israeli views. I think you should have somebody give the opposite side of the picture. I agreed with him completely, and there's nobody better to do it than him. So, Moshe, first of all, thank you very much for being back. Before we get started, I'll just remind people who you are if they didn't hear the first episode or if they don't remember. Professor Moshe Koppel is the chairman of the Kohelet Policy Forum. The Kohelet Policy Forum has been in the news a lot as being one of the intellectual wellsprings from which some of this reform has emerged. That could be true, it could be not true. But a lot of the press, both on the left and the right is making that claim, but we'll hear from him whether or not that's the case. He's also a professor emeritus of computer science at Bar Ilan University, a PhD in mathematics, postdoctoral work at the Institute for Advanced Study at Princeton, has published a book on Judaism in the relatively recent future in the last year or so. Very talented person, very smart person. I happen to think a very nice person. And, Moshe, I'm delighted that we're going to hear from you, the opposite side from what people heard from Professor Roznai not that long ago.
Tell me, tell us, why does Israel need judicial reform?
Okay, first of all, Daniel, thanks very much for having me. It's really a pleasure to be here. Happy to have this opportunity to make my case. So, every democratic government has three branches of government the executive, the legislature, and the judiciary. And there are checks and balances between them that's really fundamental to what it means for a country to be a democracy. So, if we'll put on one side the executive and the legislature, and on the other side the judiciary, we can ask, well, what are usually the checks and balances that one has in each direction? So, the checks and balances that the judiciary has on the legislature and the executive are some form of judicial review. The judiciary can decide whether some action taken by the government, some administrative decision, or some law passed by the legislature is, in fact, constitutional or complies with previous basic law. In the case of Israel, the basic laws being the Constitution. That's a somewhat debatable point, but let's just take that for granted at the moment. So, you have judicial review. The question is, what ways do the other branches of government, in what ways can they check the court? So, there are kind of some standard methods that are used all across the world. There are lots of democracies in the world. They vary somewhat, but there are some principles that are almost universal. So, first of all, typically, the judges are appointed by the other branches of government. So, as every American knows, in the United States, the President nominates judges to the Supreme Court, and then the Senate has to ratify them. In other countries, there are similar systems. In some places, the executive has more power. In some places, the legislature has more power. In very, very few countries is the judiciary itself involved in judicial appointments. That's extremely unusual. So that's the first way that you can balance the court is by just making sure that the court is populated by people who more or less represent the distribution of opinions in the country. And that happens because they were appointed by those who were elected. Right. So that's point number one. The second thing is that the power of the courts in general is limited because they're only able to hear certain kinds of cases, right? It's not like the Court can just decide to weigh in on an issue. First of all, somebody has to come to the Court and say, “Well, I have a grievance”, right? “My rights have been violated by some government agency”, for example, right? So, the fancy word for that is standing, right? You only have standing before the Court if you have been directly and personally and concretely affected by some government action. Otherwise, you can't enter the courtroom. So that limits the Court's ability to deal with issues, right? They can only deal with issues where somebody brought a grievance. The other thing is that not every case is justiciable, right? There are certain things where courts all over the world will say, “look, we can't hear that case because our legal expertise does not give us any particular advantage over the other branches of government in terms of deciding what's right.” You're dealing with social issues over whether it's foreign policy or making war or making peace or other hot button social issues that involve values. People have different opinions about these kinds of things, and the elected branches ought to be dealing with them, pulling this way, in that way, and trying to come up with a compromise. And since it's not a purely legal issue, the Court will generally say, “look, that's not justiciable.”
So that's another way in which the Court is limited in terms of the kinds of things it can get involved with. Finally, the question is, what are the tools that the Courts have at their disposal for checking the other branches, right, for judicial review. So, in the case of laws in the United States, for example, and in most other Western countries that have Constitutions, you can only say that a law does not stand if it's unconstitutional, right? And there's a simple mechanism for doing the idea is, look, the Court is now considering an issue. There are two laws that are relevant to it. One is a regular statute, the other one is something in the Constitution. So, the Court says, well, given the two, the Constitution is superior. We are going to go with the Constitution. So, in that sense, the Court will sometimes be ignoring a law or overruling the law because it conflicts with the Constitution. But that's the only means that you can use in order to overall law. There's no other method.
And finally, when the Court is ruling not on a law, but on some administrative decision, some government agency has done something or other and somebody has brought suit against them because it affects them in some way. Well, the Court now has a list of criteria that it can use in order to say, “well, you can't do that”. Well, it's actually against the law, or you did it without proper authority or without the proper methodology, or you did it for reasons that are not relevant to the thing, or you have done it in a way that's prejudicial or discriminatory, et cetera. There's a whole list of things in administrative law. So that's it. You now have all the ways in which the Court's power is checked.
Now, here's the key point. In Israel, every single one of those checks on the Court do not exist. Okay? And I'm going to take you through it one at a time and show you that they simply don't exist. So, first of all, how do we elect judges in Israel? Well, there's a committee of nine people. Three of them are sitting Supreme Court Justices, two of them are lawyers from the Bar Association, and the other four are politicians, two members of Knesset, one of whom is traditionally an opposition member, and one coalition and the two ministers. So, you could see, first of all, that just looking at the makeup of this committee, you've already got five non-political types, legal types, who have their own views of the way things work. Right. So, you need seven out of nine in order to appoint the Supreme Court Justice, which means that since there's only six who are not Supreme Court Justices, the Supreme Court Justices, as a block have a veto.
They can't appoint somebody, but they stop somebody.
They can stop somebody. Exactly. Okay, so the first thing is if…
And the government could stop somebody, too.
The government can also depending on who they are. But remember, I don't want to get into politics now. We'll get into that later. But when the government is a right-wing government, okay, so the Court and the government representatives kind of cancel each other out in a sense, and they need to reach a compromise…
Because you are assuming that the Court is left?
Yes, I'm not assuming, I know. Now, when you have a left-wing government, then the government and the Court can quickly agree on candidates that are convenient for both sides. Okay, so this is not exactly symmetric. Okay. But the point is, I don't want to get into the political aspect of this. Since the Court has a veto, just imagine that for whatever reason, all the judges on the Court, or most of them, are flat earthers. Okay, well, you're going to be getting a lot of flat earthers on the Court if this is the system that you use to choose judges.
Except if the Knesset is not flat earthers, then the Knesset also has a veto on the judges.
No, as I said, the coalition also has a veto, but then they need to reach a compromise.
Right. And that might not be flat earthers, right?
Well, it's going to be at least partially flat earthers. Okay. I mean, we've had this situation for the past few years where you've had a right-wing government and the judges simply blocked every possible right-wing judge that they wanted to put in. In the end, what you got is you would get two very far left-wing judges and two moderately right-wing judges if there were four appointments being made. Okay. It's not exactly symmetric. And as I said, when you've got the left in power, the left can just put in if they're making four appointments, they can just put in four left wing judges. Okay? So, in any event, at this point, all I want to say is, whatever the accepted method in other countries that judges have very little to say about judicial appointments is not the case in Israel. So that is one check that is common in other countries that doesn't exist in Israel.
Let's move on to the other ones. Okay. What about standing and justiciability, right.? Limitations on standing and justiciability. In the United States. If you walked into court and said, “I don't like some government policy, but it has nothing to do with me personally”. I'm just a guy with some NGO, and I don't like that. I'm a socialist and I'm pro labor, and I don't like that government policy that somehow is bad for organized labor. The courts would say, “well, get out of my courtroom. You have no standing here”. Now, in 1981, a little short history lesson, I won't take too much of your time with this, but in 1981, a guy named Yehuda Ressler was a soldier, and he comes to court, and he says, the government has given an exemption to rabbinical students. Right. Mostly Haredim. It doesn't actually say Haredim. It says if you're studying in a seminary. But let's call it Haredim for sure, okay? The government is exempting Haredim from getting drafted. And I don't like that policy. I think that policy is wrong. I'm going to the army. I want them to go to the army, too. Right. And as a matter of fact, he could even argue, hypothetically, I go in for three years. Maybe there were very few Haredim at the time, but if the Haredim were drafted, maybe I'd go in for two years and eleven and a half months. Okay. So, in some vague way, being directly affected. Right. Okay. And at the time, Moshe Landau was the Chief Justice of the Supreme Court. The Court was much more conservative. And Landau says to him, “A, you have no standing, and B, this case is not justiciable. The people who should be reaching compromises about how to deal with the problem of the Haredi exemption are elected officials. That should be done by the Knesset. It should be done by the government. It should not be decided by the Court.”
This is 1981. So, it's about a decade before the Barak revolution.
Well, there were two Barak revolutions. We're going to get to that. The big Barak revolution that everybody knows about. But I'm now going to talk about the one that fewer people know about, but is actually more important, okay? In 1986, Ressler comes back. At this point, he's not even in the army anymore, but he's still doing reserve duty, okay? And he comes back, and he sues again. And this time, he's got a weaker case even because he's only in reserve duty. But he could say, “Look, I'm doing 30 days a year reserve duty. Maybe if the Haredim demographic drafted, I'd be doing 29 days.” And he comes in, but this time there is one difference, okay? This time, who's sitting on the panel but our own Aharon Barak. The legendary Supreme Court Justice and ultimately the Chief Justice, in ‘86, he was still not the Chief Justice, and Barak is sitting on the case. And Barak establishes two principles. First of all, he says, you’ve got standing. All right? This court is open, right? Basically, everybody has standing. You've got a grievance. Bring it to me. Okay? Now, that vastly extends the Court's power, right?
Did he say, because I don't know this case, did he say, you have standing because of reasons X, Y, and Z? Or did he basically say, the court now declares everybody has standing?
Well, he didn't exactly say everybody. Once in a while, the court will say, well, no, that seems a little bit far-fetched. But yes, effectively, he opened his courtroom to everybody, okay? That's what happened. And then with regard to justiciability, he said the now famous quote, he says, “hakol shafit.” Everything is justiciable, even matters of war and peace. Right? So, at this point, what Barak has done is he said, look, you know what? We're not just here to settle grievances, okay? You've got a grievance to the government. We're going to deal with your grievance. We're past that now.
Why does Barak do this? Why does he make everything, everyone have standing? What's his agenda?
Well, he's extending the Court's reach. He's basically giving the court more power.
Because more people can bring cases.
More people can bring cases. They can hear issues that they want to hear.
Right, I just want to make sure that was clear to everybody.
Yes. Okay. We said already in terms of how we appoint judges, we don't have that check and balance in terms of justiciability and standing, we haven't got that check on the court. Okay? Now we get to the third kind of thing, which is what are the tools that the Court has at its disposal? So, let's start with what about administrative decisions? What are the criteria that you could use? As I said, they were a well-defined criteria. But Barak, in 1981, he's a brand-new justice. He's on the court, and there's a case called dapei zahav comes before him. Dapei zahav is famous only because of one particular ruling by Barak that has changed Israeli jurisprudence forever. After that, nobody actually knows what the case was about, and nobody cares. It's some government agency that has done something that somebody was unhappy about. And they're coming to the court for remedy, right? And Barak says, “look, this administrative action is not illegal. I'm not saying it's discriminatory. I'm not saying it was done without authority. But I think that when one looks at all the different criteria that needed to be weighed here and the amount of weight to give each of them in coming to the decision well, I think they didn't weigh all the different factors properly and therefore they came to a decision that is not the one I would have come to.”
So, he didn't say that any of the formal reasons… This is really just a very elegant way of saying, “All right, you made that decision. It may have been your authority to do so, but I disagree with it. I would have made a different decision”. Since then, that has been called the reasonableness criterion. That's reasonableness. Now, just bear in mind, when Barak invoked this reasonableness, he actually referred to a decision by Berenson, who was a legendary judge before him, in a Dizengoff case where Berenson said, “look, sometimes things are so outrageous, right?” In the United States, we call this arbitrary and capricious. That exceeds the government's authority because it's insane, right? When one wants to think about this kind of extreme unreasonableness the canonical historical case is Caligula, who appointed his horse to be console, right? Say, okay, if Caligula appoints his horse to be console, right? Well, something like that happens the court can step in and say, look, your authority only extends to things that somebody thinks makes sense. And Berenson even said in his decision back in Dizengoff, he said, “What I call unreasonable is something that no reasonable person could possibly think is reasonable, like a Caligula’s horse.”
So, Barak is building on this, but he's clearly extended it a great deal because this wasn't the kind of thing where no reasonable person could think that this decision, this government decision, was normal. It was reasonable. So, we've gotten rid of that limitation. Now, you can march in, right? A judge can march in and say, not unreasonable. Don't like it no more. Finally, the last thing is, well, on what basis can you rule that laws are unconstitutional? Now, the fact is, Israel doesn't quite have a constitution, but it has Basic Laws. In ‘92, the Knesset passed Basic Law Human Dignity and Freedom. And the people who passed the law at the time didn't think that they were creating a constitution. But in any event, there's language in the law that would suggest, quite reasonably, that if there's a conflict between this Basic Law and ordinary law, that the Basic Law wins. And Barak building on that fact, this is hotly debated by law professors, but building on that fact, he said in 1995, in case called Bank Mizrahi, also some technical matter that nobody cared about. But it was an opportunity for Barak to establish a precedent. He said, “Look, essentially, these basic laws are a constitution. I can use these Basic Laws to strike down ordinary statutes”. And he did. He struck down an ordinary statute on the basis of Basic Law.
Correct me if I'm wrong.
Yeah.
He also used the ‘92 Basic Law, though, to support rights which have not been legislated by the Knesset.
What's missing is equality, freedom of speech, freedom of religion, and to a large extent, the rights of people who have been arrested, indicted…
Okay, so let's take the three big ones. You said the first freedom of equality, freedom of religion, and….
Freedom of speech.
Okay, so in those cases, isn't it the case that what Barak was trying to do I'm not saying rightly or wrongly, historically, he was saying, well, the Knesset didn't legislate those, but anything remotely approaching the Bill of Rights, like the ‘92 Law should include those also. So, I'm going to rule that in the spirit of that law, these rights also need to be protected. Is that essentially what he does?
Yeah, but those are two separate things. We're talking about two separate issues. Let me sort them out. Yes, the human dignity and freedom enumerates some rights, but not other rights. And Barak said, “I'm going to read these other rights into this law as well”. So that also is controversial, but I'm not exactly frightened of freedom of speech and freedom of religion and equality. The issue is and I want to come back to this afterwards the question is, all right, these are derivative rights, which I'm happy about, but then there are second derivatives as well. And some of these second derivatives take us to places that we might not want to go.
Like what? What are they?
Okay, so here's an example. But this is parenthetic, because I want to get back to the main avenue that we were on. So, from equality, which I'm all in favor of, right? We get to this. There was a case just a couple of years ago about private colleges that wanted to offer Haredim classes that are gender separated. Now, this is something, by the way, that might be relevant to Shalem, right? You may one day decide that you want to get Haredim more integrated into Israeli society, and therefore you want to give them classes. And you're going to realize very quickly that they're not going to attend unless they can have gender separated classes, which is, by the way, I went to Yeshiva University. I was in gender separated classes my entire life. I was in gender separated classes, okay?
And you came out okay.
I survived it. The United States has survived private institutions having gender separated classes. Now, I want to point out another thing. There's actually a law that says there's a black and white law that says that you can have gender separation in higher education. Of course, voluntary, not forced, but one is permitted to if one wishes to have gender separation on the basis of religion, right? So, in other words, if there are religious reasons, if there are religious reasons for having separate classes, by the way, this could apply just as easily to Muslims and Bedouins, Druze, they are conservative societies. We have a lot of conservative societies, not only the Haredim who want to have this kind of separation. So, the law says that you can. Now, there were colleges and universities, some of them some of them public, some of them private, that wanted to have separate classes. This case actually went to court. People brought suit against colleges that wished to have these classes, for students who wished to have these classes, saying, no, you can't do it. And what was their argument? Their argument is basically Brown versus Board of Education. There's no such thing as separate but equal. So, if you allow separate classes, that's a violation of equality. It's derivative from equality, which itself is derivative from dignity, right? So, the court ruled on this and said, “Look, we're going to allow it in certain cases, it depends on what the major is, and it depends on whether it's undergraduate or graduate”. They made limitations, but they said, “We are not going to allow this even though there's a law”. And they said, well, “If there's a law, how can we overcome that law?” And this is very simple. That law is an ordinary statute, right? But freedom and dignity of man, or dignity and freedom of man is a basic law, and we read into that basic law, equality, we read into equality that you can't have separate even if it's voluntary, right? And therefore, we are going to put limitations on this. That is a perfect example of something which you may say, you know what, I also don't like gender separate classes. But it's a clear example of where the court has violated somebody's freedom, right? Violated religious freedom on the basis of what they are reading into human dignity. So therefore, I'm just a word of caution, when you say, isn't it great that the Court is reading more and more rights into these things?
I didn’t say that it was great. I just said that that’s what the court is doing.
Okay, well, I'll say it's great, okay, sometimes it's great and sometimes it's not. Exactly. That's the point. Anyway, all that was in response to your question in the middle of your explanation, which is why do we need reform? And the answer is because there are no checks and balances on the court. But now I want to add one more layer on top of the fact that all the basic checks and balances that one usually has on the court don't exist in Israel, which should worry you a lot. There's one more factor, which is that Barak, the whole thing is Barak, okay? Barak, in ‘93, there was a case where two ministers in Yitzhak Rabin’s government were indicted, right? So, it was Deri and Pinchasi, and the Attorney General, Harish, comes to Rabin and says, “You should fire these guys.” And Rabin says, “Look, I can read the law, and the law does not require me to fire these guys.” First of all, they're only indicted. I mean, everybody has the presumption of innocence, right? So, they haven't been convicted. So, he says, I'm not firing them. So, some NGO called Amitai goes to court and sues Rabin. Now, here's the interesting thing. Which court did they go to? You're, you know, if you're an American, you're thinking, oh, they probably went to some lower court somewhere. And no, in Israel, the Supreme Court has original jurisdiction on any lawsuit against the state, right? It's called Bagatz. The beit din gavoah letzedek. The High Court of justice, which is the second hat that the Supreme Court wears.
The Israel Supreme Court is also a Court of Appeals.
It's also the Court of Appeals, but it has original jurisdiction on these kinds of cases. And so, some NGO brings suit and says, “Why shouldn't Rabin be forced to fire these people?” Now, let's understand, before we even get to the real scandal of the story, that these guys should have no standing at all because they have absolutely nothing to do with the case. Secondly, this is a classic case of something that should not be justiciable because appointments of ministers is exactly something that is completely within the authority of the other branch. I mean, if there's any meaning to the word separation of powers, right, this would be a perfect example of where there should be separation of powers. The court should not be telling them who they should be appointing. But now we've gotten past that. Here's the crazy thing that happened. Harish, the Attorney General, who told Rabin in the first place that he should fire these guys, he's also Rabin lawyer in court. So, he sends one of the people on his staff, a lawyer by the name of Dorit Beinisch, whose name may be familiar because she eventually became a Supreme Court Justice and then the Chief Justice of the Supreme Court, but at the time, she was a government lawyer.
She goes into court to defend Rabin. Okay? I'm making scare quotes now when I say the word defend. She goes into court, and she says, “Rabin should really fire these people. It's wrong. He thinks he doesn't have to fire them, but I'm telling the court as his lawyer that he is completely wrong, and he has a duty to fire these guys.” Okay? So now understand what has happened here, okay? Rabin’s own lawyer has. Come into court and argued against him. Obviously, the attorneys for the petitioners argued against him. Nobody has argued on his behalf. And the craziest thing is, both of them have said that Rabin is wrong, but anybody who can read the law knows that Rabin is right. So, you've got you've got a case here where a petitioner without standing in a case that's not justiciable come in and make a claim that is obviously wrong according to the black letter law, and both lawyers are arguing against him, right? This is the situation. And Aharon Barak writes the decision, and of course, he says that Rabin has to fire these guys, okay? Now, understand, you know, standing and justiciability he's already done away with in 1986. He doesn't even address that issue, right? The fact that the law does not require him to fire them, he just says, well, it's not reasonable, right? He's already established in 1981 in dapei zahav that if it's not reasonable, then it's not legal. So, he says, “It’s not reasonable, you should have fired these guys”. So based just on that, he's made his decision. And then at the end, he says, I know what you're thinking, right? You're thinking that Rabin didn't have a lawyer, right? Nobody defended him in court. He says, well, let me tell you something. I want to establish two principles now, okay? He says, first of all, when Harish told Rabin, when the attorney general told Rabin you should fire them, he said Rabin was obligated to do that because as far as I'm concerned, he says, when the attorney general tells the government to do something, he's the boss, okay? His opinion is decisive, and the government has to act according to it. So, first of all, what Barak has done here is established that the prime minister is actually not the most powerful person in the country, because there's somebody who tells the prime minister what to do.
That's number one. But number two, he says, as far as Beinisch not defending Rabin look, Rabin can't choose his own lawyer. The attorney general decides who his lawyer is, and the attorney general sent his proxy, which is Beinisch. She's the lawyer. Her job, however, once she gets to court, is not to defend her client. Her job is to defend the interests of the public, right? Or more elegantly put, cosmic justice. That's their job. So, if you say nobody defended Rabin, that's as it should be.
And that's where the idea in this judicial reform of changing the role of the attorneys of the ministries comes from?
Yes.
How many cases have there been like this where in an egregious way, a minister was just not represented at all because the attorney appointed to represent them was appointed by the government?
This has happened multiple times. It happened to Olmert when he was prime minister on a certain matter regarding real estate. It happened again to the Minister of Science, Ofir Akunis, with regard to the Israel Prize. It's happened on numerous occasions. But if you've got a minute for an interesting story, I want to tell you the most outrageous example of this happening. You can't beat this. In 2019, we’re in a transition government again, as we have been for most of the time for the past few years. And Amir Ohana is the Justice Minister.
Now the speaker of the Knesset.
Now the speaker of the Knesset. Exactly. Avichai Mandelblit is the Attorney General and Shai Nitzan is the Chief prosecutor whose term has just ended. Now, what happens when the chief prosecutor's term ends? Well, you need to appoint a new one. Whose job is it to appoint a new chief prosecutor? The Minister of Justice. So, the Minister of Justice, Amir Ohana, says, “Okay, I am now beginning the process of finding candidates for this position”. And the Attorney General says to him, look, we're in a transition government. The court has already decided that making any long-term decisions during a transition government or people might prefer to think of it as a lame duck government. Right? That's a more familiar phrase. Making long term decisions is unreasonable. It's unreasonable because, well, you're almost done, and now you're tying down the next government, right? Now, just to be clear, there's no law about that. As far as the laws are concerned, a lame duck government and a regular government are exactly the same thing as in the United States on, you know, after the elections, if you're a president like Trump who lost the election, right. You have not lost your presidential authority until January 20 you are the President in all respects. But the Court, just out of nothing, with no basis whatsoever, decided that that is not the case in Israel. Now, I won't get into the tangential matter that they apply this principle in a completely I would say if I were to be generous, random way, but it's not actually random. If you know who the government is, you know how much leeway they're going to get. But let's set that aside for the moment. They said, you can't make long term appointments, and Mandelblit says to Amir Ohana you cannot make a permanent appointment. Ohana backs down on this and says, “but I want to make a temporary appointment. We do need to have somebody being the chief prosecutor”. Now, there's a clear law about this. If you can make a temporary appointment for 90 days, and it is completely the authority of the justice minister to do this. If you make a permanent appointment, you need to have a committee that sits on it and blah, blah, blah. There's a whole process. But if it's a 90-day appointment, it's urgent. It needs to be done quickly. The Justice Minister's job is to do it. So, Ohana says, I'm thinking about different candidates. And now Mandelblit comes to him and says, look, you have to understand something. I'm the Attorney General. You have to do what I say. If I say something's illegal, you can't do it. And he says, furthermore, as you well know, if something is unreasonable, well, we've already decided that if it's unreasonable, it's not legal. So, I'm going to tell you whom it is not reasonable to appoint for this job so that you don't do something outrageous and appoint a horse like caligula did. So Ohana says “Who is it unreasonable to appoint?” And you're going to think I'm making this up because it is so insane. The answer that he gets from Mandelblit is “It would be completely out of the scope of reasonableness for you to appoint anybody whose name isn't Momi Lemberger.” He said “the entire scope of reasonableness is Momi Lemberger and anybody else anybody else is like Caligula's horse. So, think of any legal eagle that you want that was eligible for this job. They are all Caligula's horse.”
If Avichai Mandelblit was sitting in this chair right between you and me right now, what would his rendition of this be?
Those are the facts. I don't think there's any way that you could describe this differently.
And if I looked at him with this look that I'm giving you, and I said, that doesn't sound so reasonable to say that it's not reasonable to appoint anybody whose name is not whatever. And I would say to him, what you're basically saying is you're taking on for yourself the right to appoint the next person. Obviously. What would he say?
I have no idea. I don't want to be his spokesman on this matter, but to make it worse, the story is bad enough as it is, but let me tell you how it plays out and a little bit of background, okay? There was a guy named Efi Nave, ff you recall, he was the head of the Bar Association.
Until he wasn't.
Until he wasn't. This happens a lot, but in any event, you know that the messages on his phone had been downloaded. We can argue about whether this was legal or not legal or whatever, but it happened. And then some of them were published, and in one of them, you hear him speaking to none other than Avichai Mandelblit, who says to him, “You know, the chief prosecutor actually has me by the throat?” Because he was involved in some case, the Harpaz case, it doesn't matter. He was involved in some scandal earlier in his career. And what he said very clearly in this conversation is, this file is still following me, and the chief prosecutor got me in a sensitive spot. So, he's certainly in what I think any reasonable person would call a conflict of interest when it comes to appointing the next chief prosecutor. That's number one. But let's even set that aside. So, if you were grilling him in the seat next to me, you could really put him in a difficult situation by pointing that out. But let's move past it, right? What happens next? Okay, what happens next is that Amir Ohana says, that doesn't sound plausible to me, and he decides he's going to appoint somebody else who's very senior in the prosecution. Not somebody he met in McDonalds, okay? It's somebody very senior, and her name is Orly Ben Ari Ginsberg. She's like a deputy prosecutor. She's a serious person. And he says, I'm appointing her, despite the fact that the attorney general said no. Now, there's clearly nothing wrong with this appointment. She's a competent person, and he's done it with authority. The next day, they're doing a ceremony in which she's now becoming the temporary chief prosecutor. Her kids are there. She's, you know, a little excited. And at five to nine, five minutes before this, a justice of the Supreme Court, issues an injunction against her taking the position. Based on what? Based on nothing. He just issues an injunction saying she can't take the position. Clearly, because we already decided the attorney general's opinion on such matters is decisive. So just as she's about to go up and accept the position, it's canceled. She says, all right, this is very humiliating. I'm dropping out of contention. And the thing only gets worse from here. And Avichai Mandelblit at some point announces that he is assuming all the authorities of the chief prosecutor until a new government comes in and appoints a permanent chief prosecutor instead.
For eight months, Avichai Mandelblit, who was the attorney general, who already has more power than anybody in the country, was also effectively the chief prosecutor. So that's how this plays out. So, when people tell me, yeah, the fact that Barak has extended the court's authority and given power to the attorney general, that's because, you know, the government, they're dangerous people. They could do crazy things, and we need to babysit them. And the attorney general is my guy on the spot who's making sure they don't do crazy things and they respect people's rights, and we want it. Right. I'm not buying it. What goes on when people have unchecked power, as the court does and as the attorney general does, you know what they end up doing? They end up expanding their own power. And they end up also pushing their own values, which may be perfectly fine values or not, but the point is, they're not necessarily the ones that the elected government of Israel has decided to legislate on the basis of.
All very compelling. Certainly learned a tremendous amount. So, thank you for that. Now I want to push back a tiny bit. It is true, obviously, that the Knesset is the democratically elected representative of the people. But at any one given moment, the Knesset is a representative of the diversity of the people in a certain way. In other words, if the Knesset, the current government that we have, at least as of now, who knows what will be this afternoon. But it's got 64 seats in in the Knesset. 64 out of 120 is just a tiny, tiny, tiny bit, over half. And let's say the Knesset now was able to you said before that if the Knesset can effectively appoint judges, that's much more democratic because it represents a diversity of viewpoints. But the truth of the matter is, of course, that in this particular government, 56 out of 120 their viewpoints are known but not really represented if it's the government appointing judges. So, it's a little bit less diverse. So that's one complication, which I would like to hear you say something about, but I want to push a little further. Two possible examples, and I might be wrong, because I'm not a lawyer. So, you'll tell me if I'm totally wrong. But the law on human dignity in ‘92, as we already said in this conversation, does not guarantee freedom of religion. So, let's say we have a pretty hot-blooded Knesset right now. They're not exactly in love with the Arab world around us, to put it very mildly. And let's say in a moment of because things really do blow up in the West Bank in a moment of hot headedness or whatever, they vote to close all the mosques in Israel. And the judicial reform, as initially proposed, not as it's now being discussed on our day, because a few weeks ago it was a very different proposal, has already gone through. So, there's no judicial review of a vote taken by the Knesset like that.
No, let me correct you. Even according to the most extreme versions of the reform, there's still a judicial review.
Yeah, but then the Knesset can override it.
There's an override, right. And even the override, by the way, even according to the extreme version, which I don't support but is temporary, in other words, the Knesset can override it for a few years. The next Knesset would need to vote again.
For X number of years, the Knesset has essentially an override clause. So, for that X number of years, theoretically, without the kind of judicial review that Israel currently has now, and you've explained very clearly and compellingly what the problems with it are, you could have a period of a few years where it's actually illegal to open a mosque. Now, one can understand why the tens of thousands of people in the streets are saying that doesn't feel like a democracy feel like it's not a democracy. Right. Because the first point that I want to make is that I've heard a lot of people, not you, absolutely not, but I’ve heard a lot of very smart people who either on the right or slightly right of center or even in the center, say the left is having a tantrum or the left is having a hissy fit. And I find that a very problematic claim, because even if I find what you're saying very, very, very compelling, and a lot of it I find very compelling, and I've never been opposed to judicial reform as a matter of principle, just some elements of it. But this is one. So, for example, if we were living in a country where effectively the Knesset could say no opening mosques, the Supreme Court does the judicial review, the Knesset overrides it, and until the next Knesset, we now have a little bit more than three years, for three years, there could be no opening mosques, no opening churches, no opening reform or conservative synagogues. The Knesset could do whatever he wants. It feels very undemocratic or something that we discussed before we went on the air, the law on elections and voting in the Knesset requires 80 people, 80 members of Knesset to change it. Now, I don't think Israel's ever had a coalition of 80 people. I could be wrong. I don't think it ever has. But let's just say, hypothetically, it gets a coalition of 80 people, and then the Knesset decides, and this reform has gone through. You know what? We're not going to have elections every four years. We're going to have elections in 15 years, and then they're going to be free and open elections. Now, again, it's a kind of crazy hypothetical because we've never had a government of 80, but you know anything is possible. You live in a world in which that is conceptually possible. One can understand why many of the people in the streets at Azrieli or in front of the President's house in Jerusalem or even in Efrat these days feel that this feels like an illiberal democracy, right?
Music credits: Medieval poem by Rabbi Shlomo Ibn Gvirol. Melody and performance by Shaked Jehuda and Eyal Gesundheit. Production by Eyal Gesundheit. To view a video of their performance, see this YouTube:
Our twitter feed is here; feel free to join there, too.
"At the end of the day, someone has the power—either the Court or the Knesset. Why do you trust the Court more?" (Part I of II)