Very welcome back to Israel Studies seminar.
We are very excited to host and that's clinical today.
Anat is a professor of law at Winchester University and she was previously director
of Studies in Law and a fellow at Lucy Cavendish College at Cambridge University,
the other place. And she was also the Deputy Director of the Centre for Public Law at Cambridge University.
She recently chaired a research group at the Israeli Institute of Advanced Studies and before joining academia,
she was a barrister in Israel with the Association for Civil Rights and litigated human rights cases before the Supreme Court.
And today we're going to hear her speak for approximately 45 minutes, after which we will have questions and answers.
So okay.
So good afternoon and thank you to Yaakov and Alisa for organising this talk and thank you for coming.
My original plan was to talk about some of my work and my research regarding the role of the Supreme Court
in Israel in establishing the relationship or the constitutional relationship between religion and state.
Since the time that this seminar was set up, there have been very rapid constitutional changes in Israel,
and I think many of you have heard about them that affect directly this issue.
I have been myself involved. In fact, this semester I've barely done any academic work because I have been very much involved in doing
anything I can or contributing to action against this constitutional revolution that is taking place.
Or I've spoken in the Knesset about this and I have written in the popular press about it.
So I thought that today I will talk about that and use it maybe a bit in the second half of my talk.
And I will use the issue of religion and state as in a way a test case to show
what the difference is going to be with this constitutional a revolution.
And so you've heard me use the word constitution, constitutional a number of times already.
Some of you might know that Israel actually does not have a constitution, or rather, I would say more correctly,
Israel has a constitution in the substantive sense, in the same way that the United Kingdom does.
It's just not a written constitution.
Again, that's a bit of a misnomer because, of course, the rules regarding the relationship between branches of government,
organs of government, between the governed and those who govern them.
So civil rights, human rights, all of these do exist in written laws,
both in Israel and in the United Kingdom, just not in a document called a constitution.
So no formal constitution, but there is a substantive a constitution in the state in Israel.
However, initially there was supposed to be a constitution, so it says so in the Declaration of Independence.
In fact, in 1948 and the Constitutional Assembly, which was the first elected body in the state,
was tasked with coming up as a name suggest with a constitution, with a document called the Constitution.
The Constitutional Assembly then became the first Knesset, but the constitutional assembly never came up with a constitution.
Neither did the first Knesset or any subsequent Knesset.
Why? Because there was controversy around this issue and it was not possible to come to an agreement.
So there are a number of issues behind it.
Maybe the most well known is that the religious parties, the Jewish religious parties had a difficulty with agreeing to that because they thought,
well, the Constitution, we should not have a constitution. The Torah is the constitution of the Jewish people.
We don't need that to be replaced by this kind of state constitution.
There were some issues, obviously, around also the Arab citizens of Israel.
What role will they play? What rights will they have relative to other citizens, and should that be placed in the context of the Constitution?
But also and that's something that I've found out that is less well known.
There was a division in Mapai itself regarding that.
So Mapai the ruling party for the early years, headed by David Ben-Gurion, the first prime minister.
He was opposed to this constitution, to having a constitution for the state.
His concern was that if there is a constitution,
the judiciary will use the constitution to review the actions of government and to review the legislation by the Knesset.
Now, Ben Bouillon, as a very strong leader of the of the executive.
Right. The prime minister also in the parliamentary system.
Therefore, in fact, the person who controls the parliament through the in a ruling party coalition opposed that idea.
He was concerned he didn't want his plans to be thwarted by a Supreme Court using a constitution
to strike down maybe his actions or actions even off the Knesset legislative action.
Others in Mapai supported it. For example, Moshe Shallot, who subsequently became the second prime minister.
And he, in fact said in a party meeting, while it doesn't,
having a constitution doesn't mean necessarily that there would be judicial review and then others, for example Labour,
but it does so on again in the Mapai meeting said well having a constitution doesn't guarantee that anything,
doesn't guarantee that it won't become an authoritarian state.
If we look at the recent history of the fascist states and she was absolutely right about that, obviously it doesn't guarantee, historically speaking.
That's definitely correct. So the was a pretty much 5050 split around that and therefore the Constitution never came to fruition.
What was agreed and this is has become known as the Harari Compromise, based on the member of Knesset,
who suggested it was that the constitution would not be written in one piece, but there would be chapters.
So each chapter that could be agreed upon would be legislated as a basic law, and that indeed happened from 1958.
So we have a basic law, the Knesset, basic law, the government, basic law, the state economy and so on.
What you might have noticed from just these examples, I gave one thing that was definitely missing.
Because it was so difficult to agree upon was any kind of bill of rights, any basic law that would protect human rights.
So it was easier to agree to basic laws that would deal with organs of government.
And indeed, in most state constitutions, there are chapters that deal with organs of government and their powers.
But it was not possible to agree on a human rights being basic law.
That was eventually agreed upon, at least to some extent, but only much later in 1992,
with two basic laws that protected human rights, the more important of which is the basic law, human freedom and dignity.
So I'll pause here for a minute and go back to 1958, the first basic law.
And the question was, okay, what are these basic laws?
How are they different from regular laws? And an important question that Might showed you was already raised in this Mapai meeting even before that,
when discussing the Constitution, will the court be able to use.
We don't have the written constitution, but the basic laws in order to review legislation of the Knesset.
Is it possible for a court to strike down legislation of the Knesset using the basic law?
It didn't say anything explicitly in the basic laws about that.
But then the question is what is the relationship which is higher, a basic law or regular law or aim in?
What is the relationship between them? In 1969, the Supreme Court had occasion to answer that because a petitioner argued exactly that.
He said, You have certain basic law around election funding and it stands in conflict to basic law
of the Knesset that guaranteed some measure of equality or guaranteed equal elections.
And the question was, is, does the court have the power to strike down legislation that's incompatible with the basic law?
The answer was yes. The court has that to some extent.
So with certain provision of basic law, one that are called entrenched provisions,
yes, the court will strike down legislation that is not compatible at the time.
1969, right up until 1992, this only referred to basic law, the Knesset, a very slim opportunity for the court to review legislation.
In 1992. We now have this basic law that does protect human rights, the basic law of human dignity and freedom.
It also has an entrenched clause in it.
And indeed, the court then in 1995 said, this time in a panel of nine judges, eight of whom said yes.
This also allows the court to strike down incompatible legislation.
That is legislation of the Knesset that stands in conflict to this entrenched basic law of human dignity and freedom.
Okay. But and here I come to the issue of religious freedom and the status of religion in the state.
There still are two major problems with protection of human rights, even under the basic law of human freedom and dignity.
One, it does not include all of the recognised of the commonly recognised human rights.
So it protects some of them, but it does not protect explicitly freedom of religion or equality,
which is a very basic human right included in every bill of rights that I know.
But it is not included in a this a basic law.
However, the basic law has a provision of human dignity,
and the court subsequently interpreted it to include these rights, at least to a certain extent.
But as I said, there's another basic problem with the basic law.
It has a grandfather clause. A grandfather clause means that all previous legislation so all legislation up to 1992 is protected.
It cannot be challenged under the basic law. New legislation.
Yes. So if the Knesset after 1992 legislates in a way that breaches the protected rights the court.
Again, depending on the circumstances, but will have the ability to strike it down, but not any existing legislation.
That's quite a big exception. Right.
And especially in the area of religion and state.
Why? Because since again, 1948.
Since the establishment of the state. Jurisdiction in certain matters.
So all issues of marriage and divorce was given to religious courts of the different religious communities that existed.
So if you're Jewish, it will be a rabbinical court, an orthodox rabbinical court.
If you are Moslem, it will be a Sharia court and etc.
You don't have a choice in that. You cannot say, I was born Jewish, but I'm not Jewish.
I don't want to have my issues decided in a religious court.
It's a given jurisdiction, even in other matters pertaining to family law.
And I know this is not a lecture for lawyers.
I'm not going on to the technicalities of that. But there are other matters in all in the area of family law,
where there is jurisdiction to a secular court, the regular state court, the family courts.
But they might still have to apply religious law.
So religious law, not just Jewish law, but religious law of the different communities, is part of the law in Israel and the area of family law.
You might have to be subject to it.
You will have no option. The only option is to convert to another religion, but then that other religion would apply to you.
And also, that's not really an option for most people who do choose to belong to the community of birth.
So all of that is protected. Under the basic law.
Because this is old legislation, pre-existing legislation,
even though there is a significant breach here, both of freedom of religion and of non-discrimination.
Okay. So freedom of religion, because you don't have a choice, you have to be subject to this religious age restriction.
It's also a breach of equality because the substantive law of the different religions is, in many cases, discriminatory against women.
And I'll say something about that in a minute. I just for historical context, especially, there might be storylines here.
I will mention that this arrangement I thought it was in the beginning from 1948, but in fact,
Israel inherited it from the British mandate which existed in Israel under the British mandate.
The King's Palestine Ordering Council, in fact, solidified the position of the religious communities as the sole.
Judges the sole communities to which the jurisdiction in all matters of family law aim exists.
Israel changes the law to some extent, especially in regard to a Jews.
But again, those are technicalities that basically remain the same. The bridges themselves.
Had kept what was the legal position beforehand under the Ottoman Empire.
So the Ottomans had what is called the millet system,
which again means the religious communities each have the jurisdiction over their own law and family matters.
And the British, as they did elsewhere, for example, in India,
very quickly changed the law when they arrived in commercial matters and criminal matters.
So they wanted the English law to apply, but they did not want the conflict with the religious communities.
It was just easier to leave that as it is, and that's how we came to the position,
which as I say, there are some changes but substantially is the same.
I've mentioned that it's a discriminatory aim against women and in fact Israel had is a
member of the UN Convention on the Elimination of All Forms of Discrimination against Women,
but had to enter what we call a reservation in international law.
That means I'm party to a treaty, but certain provisions don't apply to us.
So Israel had to enter a reservation because of the religious courts to say certain provisions won't apply to us.
So it's Israel, the Islamic countries, and India also has a similar a similar reservation.
Now, so far, I've set up the. What the legal position is.
A But I want to go into that a little bit more and I want to examine what the relationship is between the religious courts of the different religions.
But for our purposes, especially the rabbinical courts and.
The state courts. So these courts are the religious courts are part of the state systems.
They're funded by the state. Judges are appointed by the state.
They are part of the state. And of course, the law is state law, as I've explained.
In that system. The highest judicial instance is the Supreme Court.
All authorities, both the judicial authorities and other public authorities, of course, must comply with the rulings of the Supreme Court.
That's it. There's nothing unusual about that.
But with religious courts, there is a problem here, because differently from any other court, a state court and other other public authorities,
as far as the state is concerned, of course, the authority of the religious court stems from law.
There is a law that says you will have the authority in family matters, etc., etc.
But from the point of view of the religious courts, they don't take their authority from the state.
That's not their normative basis. The normative basis is in the religion.
And that raises a problem. For example, I said there is discrimination against women,
but the state has tried to combat that police to some extent through secular legislation in family law that will or should apply everywhere,
both in a secular court and in a rabbinical court or any a religious state religious court.
The most important of which is community property.
So community property is the idea that when there is a marriage, again,
I won't go into the technicalities, but if that marriage is dissolved and divorce,
the assets of the marriage doesn't matter in whose name they are registered, but they are divided between the spouses.
That is state law, but it's obviously not the religious law.
The Supreme Court had occasion to discuss that and said that should apply in a religious court as well.
But we have seen problems in the application of this in religious courts because from their point of view,
clearly they have to apply the religious law and not the law that is imposed upon them.
So this raises a conflict here that in some ways there is no way to settle.
Obviously, in the end, they have to comply with it, but the normative conflict exists.
I will show another example of a conflict and that is.
What has happened for many years in Israel that religious courts, at least the rabbinical courts, would act as arbitrators.
So arbitration, I'll just explain for those who are not familiar.
So if you and I have a any dispute, a commercial dispute, any dispute, we might say, well, we would rather not go to court.
Let's go to Yaakov, who will be the arbitrator, and we'll make the decide any decision that he sees fit,
we might say, according to which law we would like it decided, or just his discretion.
We sign an arbitration agreement. That's absolutely fine. That person, that arbitrator.
There is no reason that it won't be a religious person or even a religious court.
So, for example, in the U.K., you can sign an arbitration agreement and people do that, that your dispute will be settled in a rabbinical court.
And that's absolutely fine.
But the problem is, in Israel, again, because of this duality that the rabbinical courts are organs of the state, they are courts of the state.
It would be unthinkable either in the U.K. and Israel, in any other country, that a court would take upon itself a role of arbitrator.
That is something that a private person can do. Why it?
Any arbitration here would be coloured with this colour of authority of the state, which it is not.
It is something very different. So this was a practice, controversial practice for many years.
And finally, this came to the Supreme Court in Israel, which said no, religious courts cannot do that.
They are organs of the state. For the reasons I explained, they cannot act as private arbitrators.
Again, that would be absolutely fine if the Abedini said, actually, Dalia did a would do that because it's not a state organ.
But those who are state organs cannot cannot do that.
So here. I will maybe come to where we are now with this aim.
Constitutional revolution. This is a plan of the new government, which is progressing at a speed that I can only call phenomenal.
There are new aspects of that, new parts of that that are being pushed through the system every day.
And it's even difficult to respond to all of them in a timely fashion.
I have myself witnessed this. I've in the past, participated many times in discussions as an.
I'm at the past in the past as a representative, but no expert in the Constitution Committee of the Knesset.
And I've never seen anything being pushed so fast with such disregard for all the experts that are coming in and saying,
what are the problems with this and how this will undermine Israeli democracy?
So what is this plan? We don't, in fact, know because there are.
The justice minister, Yariv Levin, has said there are four parts to it, but we only know the first one at this point.
So stage one deals with judicial review exactly what I talked about today.
So this is legislation that's already going through the Knesset that will do several things.
One is to do with appointment of judges. I won't talk about that, but basically bring that more into the hands of the government.
The second is reduce very much the ability of the court to judicially review legislation.
What I've explained that the court can review legislation if it's against an entrenched provision in a basic law,
especially basic law of human freedom and dignity. It will greatly reduce that because it will have to be a unanimous decision.
And for 15 judges, it's very difficult to get 50 other judges to agree.
And even if they make that decision, that.
A law must be struck down because it is does not conform with the basic law of human freedom and dignity.
The Knesset will still be able to override it, so we'll be able to re legislate and say, well, we're doing it.
But over notwithstanding this decision of the court, we're overriding it.
So there's really not much point in striking it down because unless it can just be legislated against their will,
the court will not be able to at all review the basic laws themselves, which at this point the court has never really done.
But it has said that should there be a basic law that undermines in a very fundamental way, Israel as a Jewish and democratic state.
They could they could intervene even in that. That will be impossible after this legislation and some other also restrictions
on the ability of the court to review actions of the government as well.
So this is stage one is of greatly reducing the power of the courts to judicially review anything that the government does.
So what we are concerned about is that stages two, three and four will involve the actual rights,
so will involve an actual reduction in the protection of human rights,
maybe amendments to this basic law of human dignity and freedom, maybe other things.
As I've already explained to you, even where we stand, the protection of human rights in Israel,
the legal protection is very limited because of the grandfather clause,
because not all the rights have been legislated, etc., but it would reduce that even more.
We know, as I said, we don't know what everything that is coming in the next stages,
but we do know some things that are already, again, in in some in the pipeline in the Knesset.
So one of which is exactly this issue of arbitration of the religious courts that I've mentioned to you.
And it will, in fact, overturn this decision of the court.
And we'll say again that religious courts, this time it would be quite explicit.
Religious courts can be arbitrators.
It's that's a problem for the reasons that I explained, but maybe even more so because now when this will be explicitly allowed,
you might see not just two people who have a dispute saying, okay, let's go to this rabbinical court.
But in fact, this might be included in many contracts where one side might agree because they
don't really have a choice because of a power difference between two sides.
If we can think of landlords and tenants, for example, if the landlord puts that in the agreement, maybe the tenants really don't have much a choice.
So it would not even be this free choice to go to a religious arbitration, but born out of of of power disparity.
So that's just one of the of these issues.
The concern is that a lot of them will have to do with protection of religious freedom.
There's now a minor issue, but also important that's again,
in the pipeline and that will forbid prohibit people from bringing into hospitals commits during during Passover.
But there could be much greater changes ahead.
Of course, this will not just affect religion and laws that are centred on and focussed on today, but other rights.
So for example, again, already something that's kind of in the pipeline restrictions to the right to strike that are being pushed through.
And there's also some appears to be neo capitalist agenda behind maybe some of the later changes that the Torah about it to in common.
And yes that is a one of the other areas where this could even have an effect.
There certainly will be an effect on equality.
Again, something that is already in the pipeline is.
So as I've explained, there is no general equality provision in the legislation.
But some areas there is equality legislation.
So for example, there is non-discrimination in employment, there is non-discrimination in services that are open to the public.
So I'll explain what that means. It's public accommodations called.
So if I have generally if I have a private business, I can decide who.
I want to do business with and no one can tell me they have. I have to treat all religions equally.
But if I have a business that's open to the public, for example, I have a bed and breakfast and I'm advertising it to the public.
I cannot say, well, but I'm not going to take Jews into my bed and breakfast.
There is specific legislation about that.
And if it were otherwise likely, as I said, even under the human dignity provisions, that the Supreme Court would say that's still protected.
We know that there is an intent to change that and to allow businesses, even businesses that are open to the public to discriminate.
Whether examples have been given away that are particularly concerning against maybe same sex couples,
I would say maybe the biggest concern is Arab citizens of Israel that could be discriminated against.
So this is further issues of equality that I haven't really touched upon are probably just as just as
concerning in those maybe are the basic issues of the this constitutional revolution that is taking place.
These include the way that it's done through amendments to basic laws, which the Knesset can pass with a regular majority.
Currently, the government has 64 votes in the coalition, and therefore it looks like they have no difficulty with the votes to aim to pass that.
So there are hearings in the Knesset Constitution Committee generally.
Such hearings are used really to understand what experts are saying, how things should be, may be changed, maybe what ideas are not such good ideas.
But here I cannot say that this is really a process that is taking place.
Experts are coming, but I don't see much that is that will be changed in the committee itself.
Certainly that has made, I think, a big impact on the public.
And that's maybe not not something that I particularly talk about, because what I do is law and not not politics.
E But we can we can see that in taking place there.
I've said that if this is an anti in constitutional revolution, that will undermine democracy.
And I'll explain, maybe it's self-evident, but in Israel it's it's not self evidence why that is the case.
So at the very least, we will end up with an illiberal democracy.
And I'm using here a term that was coined, I think by Viktor Orban, certainly uses it.
And not coincidentally, I'm making that comparison.
So there is no suggestion that elections will be denied or hampered in any way.
Those still be free elections, but that's if that is democracy.
It's a very thin conception of democracy that does not protect minorities,
individuals whose rights might be infringed, doesn't have proper checks on government, even on an elected government.
And we keep hearing that we are an elected government. So this is democracy is for us to push our agenda through.
And certainly it's one of the branches and indeed policies made by the executive branch and law is it made by the legislative branch?
But this will leave those branches almost without any regulation.
The only recourse will be every four years to vote a government out.
And again, especially I am concerned about minorities.
I would say structural minorities like the Arab citizens of Israel who are always going to be on the minority side and will never be able to push,
you know, have their agenda be taken into account politically.
But it's also true, as we've seen, even with individuals who belong to majorities, could be secular Jews who up to these this day,
for example, are subject to religious law and whether they like it or not, in in certain instances.
That is why this first stage, which really only deals with the judiciary, is so concerning, because once this is passed,
it will be much easier to pass whatever next stages will be and affect minority rights and human rights and.
It will no longer be the same recourse to the courts.
So I think that those are the issues that I wanted to talk about and very happy to discuss and answer.