15 Crocodile Tears of Unreasonableness

A Sardonic Look at ‘Judicial Overhaul’

Some acquaintances of mine claim that Israel is, quote, a judicial dictatorship, unquote, justifying the ‘reform’ of the system that Levin, et. al., have been promoting. I suspect that this jaundiced view might stem from the fact that they live far beyond the Green Line, in deepest Samaria – I personally would use the phrase ‘West Bank,’ but the last time I did so in their presence, they nearly bit my head off, so I will refrain from doing so here — but I’m an open-minded sort, and I wondered to myself if, perhaps, their characterization of the judicial system was, well, justified.

Since the reasonableness issue is the centerpiece of the judicial overhaul, I decided that a logical approach would be to examine High Court of Justice decisions in which the doctrine had been invoked. I did a web search, and  fortunately, just as my limited attention span was about to lapse, I came across an article entitled “What’s Not Reasonable? Fifteen High Court of Justice Decisions That Illustrate the Problematic Nature of the Reasonableness Doctrine.”[1] The article had appeared in Makor Rishon, said to be the religious-Zionist publication that roughly corresponds to the left’s Haaretz, namely, a serious right-wing newspaper — as oposed to the Yisrael Hayom ‘Bibiton’ —  which notes on its website that it is devoid of yellow journalism and populism. The article’s author was one Adv. Zev Lev, legal adviser to “The Movement for Governability and Democracy,” an organization whose founders include Simcha Rothman – yes, that Simcha Rothman; so I could rest assured that this analysis would be free from any liberal bias.

A quick perusal of the fifteen cases discussed indicated that Adv. Lev must have selected them with great care. Five dated back to 2003 or earlier; two of these had been decided in the early nineties. Lev, I surmised, must have put more effort into selecting these cases than Netanyahu does in cherry-picking MK’s to head ministries. I would even go out on a limb to suggest that Lev must have devoted even more thought that Netanyahu had in contriving phony ministries with which keep his many minions happy, in an effort to ensure, as per the adage credited to Lyndon Johnson, that they would all be “inside the tent pissing out, rather than outside the tent pissing in” – as Netanyahu learned the hard way when at first he denied a senior post to Dudi Ansalem, the chief pisher himself, a gentleman whose ego and abrasiveness are only exceeded by the size of the pile of discarded garinim shells that typically may be found atop his Knesset desk.

I naturally assumed, then, that the “list of fifteen” would include cases of a Rowe vs. Wade[2] significance, namely, decisions, that from the standpoint of the average right-wing voter, had set a dangerous precedent; perhaps, a ruling ordering the government to immediately vacate all illegal outposts or one instructing the army to, gasp, treat hilltop youth who had harassed IDF soldiers no differently than it deals with Palestinians who have been guilty of similar violence.

Instead, reading the decisions, I couldn’t help but recall the Ali-Foreman fight, the famous “Rumble in the Jungle,” when Ali, after allowing Foreman to pound him relentlessly but ineffectually for several rounds until the latter was exhausted and primed for the kill, turned to the his challenger and said in derision, “That’s it? That’s all you’ve got?!” Because almost all of these “sensational” decisions would fail to drive anyone but the most devoted Ben-Gvir disciple to a fit of apoplexy, and they in fact made me yawn.

But fear not, dear reader. Since I don’t want you to “go MEGO on me,”[3] and have your interest flatline, I will not bore you by providing a detailed analysis of the fifteen cases. Instead I will suffice with the briefest of summaries.[4]

The cases include:

• • Cancellation of a plan to rezone kibbutz and moshav agricultural lands for housing that, in the opinion of the court, would have unfairly provided these yishuvim with windfall profits[5]

• • The decision to instruct Yuli Edlestein, then Knesset Speaker, to convene the plenum for its first session after an election had been held in to allow a vote to choose his replacement[6]

• • Cancellation of the Israel Film Board decision to prevent the screening of the film “Jenin, Jenin”[7]

• • The decision to end the arrangement whereby Prime Minister Netanyahu served as the acting Health Minister while Assistant Minister Yaakov Litzman was the de-facto ministry head[8]

• • Several cases where the court either prevented deportations or allowed entry into the country of controversial personalities[9]

• • Cases involving senior-level appointments or the awarding of national prizes[10]

One of the cases in the last category at first caused me some head-scratching, which then swiftly turned to amusement: the 1993 decision preventing the appointment of Aryeh Der’i to the position of Interior Minister. Why, I wondered, had Adv. Lev gone all the way back to thirty years ago, when instead, he could have simply provided the ruling from earlier this year in which the High Court had denied Der’i the very same position? But I realized that Lev must have grasped that he could make a stronger argument for the ‘grievance’ done the good Rabbi Der’i back in 1993, when the Shas leader had ‘merely’ been indicted, than in 2023, by which time Der’i had done jail time. It is, after all, understandably difficult to elicit sympathy for someone who’s not only a convicted felon, but a recidivist.

But laughter at this one instance aside, my overall reaction to the cases was one of astonishment. Even if one concluded that the Court had ‘overreached’ in these decisions, it was difficult to imagine that this justified the passage of legislation that was tearing at the fabric of Israeli society.

And it caused me to question the sincerity of those who were promoting the ‘reform,’ and to conclude instead, as one wise observer had expressed it in pithy fashion, that those who favored legislation banning the reasonableness doctrine were, in actual fact, motivated by a desire to do unreasonable things without being subject to any legal restraint.

And clearly this applied to all of the various parties that comprise the present coalition:

• The Religious Zionist Party would like to have the West Bank – there, I’ve said it – run by Ben-Gvir Rules.
• The haredi parties would like to pass legislation providing them with a blanket exemption from army conscription or any other form of national service, while nonetheless receiving billions of shekels for their yeshiva-student public. And if Aryeh Der’i could also be re-appointed Interior Graft Provider to the Shas-Voting Public, so much the better.
• The Likud would like the unrestrained ability to fulfill the central provision of its party platform, namely, “jobs for the boys!” – without having to be concerned with such piddling matters as professional qualifications or even prior convictions.[11] Or should I rather say “jobs for the boys and girls!” – for the Likud belatedly discovered that their card-carrying females provide what had previously been a mostly untapped source of additional incompetence, mediocrity, and vulgarity — not to mention a limitless supply of decibels; I am of course referring to Galit Pepto-Bismal and several of her colleagues. I sometimes find myself questioning how it is that the US Congress has only one Marjorie Taylor Greene among its 435 members, whereas the Likud alone numbers several of them amidst its thirty-two MK’s. And if you’ve found yourself wondering aloud, “Where does Netanyahu get these people?!” well, friend, you are certainly not alone.

But with that, I’d like to conclude on a hopeful note, with a quote from the Rosh Hashanah Amida (silent prayer):

וְכָל הָרִשְׁעָה כֻּלָּהּ כְּעָשָׁן תִּכְלֶה כִּי תַעֲבִיר מֶמְשֶֽׁלֶת זָדוֹן מִן הָאָֽרֶץ

which translates as: “And all wickedness will evaporate like smoke when You remove the dominion of evil from the earth.”

Now the word ‘ממשלה’ is generally used to mean ‘government’ in modern Hebrew. And thus my hope for the New Year is that our nefarious government will collapse, evaporate like smoke; and then we will no longer have to suffer the machinations of Netanyahu, Levin, and Ben-Gvir, the Triumvirate Evil Incarnate. And may we one day regard this government as having been “like the shadow that passed, like the cloud that vanished, like the wind that blew, like the dust that wafted, and like a fleeting dream.”

—

Footnotes:

[1] https://www.makorrishon.co.il/opinion/638307/

[2] the U.S. Supreme Court landmark ruling, recently overturned, that having an abortion is a protected right under the Constitution. See: https://en.wikipedia.org/wiki/Roe_v._Wade

[3] MEGO – My Eyes Glaze Over

[4] The interested Hebrew reader can obtain longer summaries in the Makor Rishon article. Longer English-language abstracts of some the rulings can be found at Versa, the Yeshiva University Cardozo Law School site focusing on Israeli court decisions. For a particular case, enter the following into Google:
site:cardozo.yu.edu/opinions hcj
followed by the case number; e.g.:
site:cardozo.yu.edu/opinions hcj 2144/20
(HCJ – High Court of Justice)
Case numbers for the fifteen rulings are to be provided in subsequent footnotes for each of the indicated categories.

[5] Case 244/00

[6] Case 2144/20

[7] Case 316/03

[8] Case 3132/15. At the time, the leading Ashkenazi haredi rabbis did not allow Aguda Party politicians to serve as government ministers

[9] Cases 7015/02, 5040/18, 7216/18, 2964/18

[10] Cases 2199/21, 5769/18, 8410/19, 3094/93, 5657/09, 4646/08, 6163/92

[11] And we’re not just discussing piddling white-collar crimes like fraud, breach of trust, and bribery. The head of the Likud’s Tel Aviv branch was convicted of breaking and entering, as well as attacking a woman. He was briefly a candidate in the Likud’s primaries for the part’s Knesset list last fall. His predecessor as Tel Aviv leader, by the way, is currently in jail.
See: https://www.mynet.co.il/electionstelaviv2023/article/b1g6zpgn3>