Are there judges in Tel Aviv?

Today in Israel the media are focused on a shocking revelation: an investigator for the Israel Securities Authority, who is in charge of the investigation of the telecommunications giant Bezeq, was discovered colluding with the judge of the Tel Aviv Magistrate’s court to predetermine the outcome of a hearing to extend (or not) the custody of some of the suspects who are now being interrogated by the police.

There are at least four criminal cases being pursued that may include the Prime Minister as a defendant, with varying degrees of believability and seriousness. The Bezeq case, called “teek (case) 4000” recently got fresh impetus with the defection of a former Netanyahu adviser and confidant, Shlomo Filber, to the prosecution. This scheme is precisely the kind of conspiracy that pro-Netanyahu partisans have been claiming is going on against him.

Imagine that you are a defense lawyer who goes to court to try to get your client released. Suppose he has already been held for almost a week in a cell infested with fleas, has been allowed little sleep and interrogated for hours at a time. You expect to present his case and have the judge listen to you, as well as to the prosecutor who wants to hold him longer, before making a decision.

Then imagine that you find out that the judge and the head investigator have been exchanging text messages and have already decided how long he will be held! “Try and act surprised,” the investigator tells the judge. “I’m practicing my surprised face,” she responds.

It somewhat weakens the feelings of outrage that in this particular case the judge and investigator seem to have conspired to release the suspects sooner than the police wanted, rather than to keep them in custody longer. Nevertheless, the misconduct is clear. A judge must not discuss a case outside of the hearing room.

The judge, Ronit Poznansky-Katz, and the investigator, Eran Shacham-Shavit, have been removed from the case and face disciplinary action, maybe even criminal charges. But this scandal has echoed throughout Israel’s political and judicial systems, with condemnation coming from all sides.

The rights of criminal suspects or defendants, from the beginning of the process to the end are in the hands of the judges. They are the ones that determine how long the police can hold a suspect, whether he or she will be released on house arrest or kept in jail while awaiting trial. And since Israel does not have a jury system, they will decide guilt or innocence and impose a sentence. A judge secretly conspiring with a representative of the prosecution constitutes a severe violation of individual rights.

Naturally, attorneys for the jailed suspects in the Bezeq case say that the case against their clients has been tainted, and they should be released immediately. They have a point, but probably it won’t happen. A new judge has been appointed to handle the case.

The importance of popular trust in the judicial system can’t be overemphasized, especially in a country which does not have a written constitution. “There are judges in Jerusalem,” Menachem Begin famously said, after a Supreme Court decision went against his wishes. Many Israelis on the Right have felt that the Supreme Court has been biased too much toward individual rights, especially those of minorities, and has neglected the national interest. Education Minister Naftali Bennett recently remarked that “there are judges in Jerusalem who have forgotten that there is also a government in Jerusalem.” But until now it’s been thought that outright misconduct of the kind that Poznansky-Katz is accused of was rare.

This comes at a very interesting time for the Prime Minister, as well as the police, the judicial and legal systems and the media; interesting because the PM is accusing the others of running an extra-electoral campaign to get him with trumped-up charges of corruption. They can’t beat him at the ballot box, he says (correctly), so they are trying to force him to resign, to be rejected by his coalition partners, or even – if he can be convicted of something  serious – to be removed from office.

The police have recommended that Netanyahu be indicted for cases unrelated to the Bezeq case, and it looks like they are moving toward a similar recommendation in this case. Then it will be up to the Attorney General to decide whether to indict him.

The law is not clear about what would happen if Netanyahu were convicted of a crime. But it seems almost a foregone conclusion that if it happens, and if his coalition stands behind him, it will be the Supreme Court that will decide whether he can stay in office.

Judges in Israel, including Supreme Court justices, are selected by a nine-member committee which includes two members of the Bar Association, the President of the Supreme Court, and two additional Supreme Court justices. It is chaired by the Justice Minister, and also includes two Knesset members one each from the coalition and the opposition. There is therefore an automatic majority to the legal establishment.

When this is combined with the fact that the Attorney General, supposedly the government’s lawyer, must be selected by the Prime Minister from several candidates approved by the Supreme Court, you can see why a government – or a Prime Minister – whose philosophy differs from that of the legal establishment may have difficulties. Despite Netanyahu’s popular support, he is in a very tough spot. Today’s judicial scandal is only a bump in the road for the legal convoy which wants to destroy him.

Israel, it seems to me, has a permanent constitutional crisis, or to put it more correctly, a crisis due to lack of a constitution. The balance of powers between the government, the Knesset and the courts is undefined, and the vacuum tends to be filled by whoever has the power or audacity to jump in and fill it. At the same time, it is impossible to imagine the various factions – the religious, the non-religious, the Arabs – agreeing on the content of a permanent constitution.

Probably the best we can expect is to pass a few key basic laws. I would like to start with a law defining the powers – and the limits of power – of the Supreme Court. Once that is settled, we can move on to a nation-state law, one that would give full meaning to the “Jewish” part of the “Jewish and democratic state” that most of us agree that we want.