A glimpse of the Israeli judicial system

As part of the Beverly Hills Bar Association's recent travel delegation to Israel, I assumed we would be observing a routine day of Israeli legal business when we visited the Supreme Court and the Knesset (Legislature). We apparently walked into what we in the U.S. might term a constitutional crisis. But it wasn't, because Israel has no constitution.

As background, in May 1948, when the Israeli Declaration of Independence was written, the founders called for a constitution to be completed by Oct. 1, 1948. Unfortunately, that never happened.

We asked why to the many Israeli dignitaries we met, including Radzyner School of Law Dean Amnon Lehavi; Knesset Member Rachel Azaria; former Chief Justice of the Supreme Court Dalia Dornen; Tel Aviv District Court Chief Justice Eitan Orenstein, former Attorney General Jonathan Livny. The fact that we never received an answer led to speculation by our group.

Religion is omnipresent in the Israeli judicial system. It starts with the doorway of each courtroom, which displays a Mezuzah. Above the bench where a panel of three Supreme Court justices sit, is a round skylight shedding sunlight on the panel. Our court guide described that light as a "holy presence." The benches resemble pews in a house of God. Behind the bench is a seven-branch Menorah, which is prominent in the Israeli seal and in Jewish tradition, that number represents one's orientation to space and time.

In divorce cases, conducted in the lower courts, both civil courts and rabbinical courts have jurisdiction over property, alimony, custody and child support, resulting in a race to the courthouse. Only rabbinical courts, however, have the authority to grant the divorce itself to Jewish men. No matter the situation, women have no right to obtain a divorce if the husband objects or cannot be found. It doesn't matter if he beats, rapes, deserts her or cheats. That's where the race comes in. Due to recent work of women's rights groups, under certain circumstances the woman can sue for money damages if her husband refuses to give her a divorce. Coexisting with this patriarchal system, there is almost unlimited opportunity for a woman in secular Israel. Women can be fighter pilots, Supreme Court justices or prime minister. They just can't obtain a divorce when a husband objects.

There are also Muslim Sharia law, Druze and Christian courts, which all have jurisdiction over family law matters affecting Israeli citizens belonging to those religious groups. A few days after visiting the Israeli Supreme Court in Jerusalem, we met with a member of the Muslim court in Haifa. Surprisingly there was a Mezuzah at the doorway and a seven-branch Menorah over the Muslim judge's bench. The court administrator said the Menorah was required by the government, but explained they installed the Mezuzah "to make Jews feel at home in our court."

I suspect there is no constitution in Israel because secular authors of such a document would focus on rights of the individual, whereas religious contributors would solely look to the divine and demand that the religious courts and laws remain viable in order to preserve the religious power in Israel. Many of the dignitaries we met with made a point of stating that Israel is a Jewish state.

Back to the crisis: Jewish settlers, sanctioned by the Israeli government, built homes and organized communities in an area Israel took from Jordan after the 1967 War. The land was considered spoils of war. Sometime thereafter, Palestinian owners produced legitimate deeds to that land. Apparently realizing a mistake had been made, the Israeli government offered generous monetary compensation to the property owners. But the Middle East being the Middle East, according the Jerusalem Post, if compensation had been accepted and settlement with Israel reached, that would amount to an offense punishable by death for the Palestinian property owners under their laws.

Not surprisingly, the property owners declined a monetary settlement and sued for return of the property. Eventually the matter reached the Israeli Supreme Court. In 2014, the high court ordered the property to be turned over to the Palestinian deed holders and for the Israeli settlers to vacate it by Dec. 25, 2016.

The Knesset got involved in the issue. Some members argued the Supreme Court had no authority over the Knesset, while others contended the Supreme Court has the final word when it comes to the law. A bill was proposed to legitimize the Israeli settlers' occupation retroactively, which would have the effect of overriding the Supreme Court's decision.

When our delegation went to the Supreme Court, we were addressed by Dalia Dornen, a 90-year-old retired Supreme Court Chief justice. She mentioned the term "judicial independence" at least four times. An hour later, we were at the nearby Knesset in a conference room with Knesset Member Benny Begin, who avoided answering questions about the concept.

The next day, we read in the Jerusalem Post that Cabinet members disagreed about what should be done. Later we heard that a statutory fix was being considered. Politically astute Israelis on the street all spoke about the situation. One woman said, "It is disgraceful for these politicians to get involved; our Supreme Court has spoken." The next day, our driver told us, "They are going to remove the settlers, and it will be ugly."

As we left Israel for Petra in Jordan, there had been no resolution. Possible solutions included the government compensating the settlers, the settlers taking to the barricades, or perhaps the Supreme Court granting a continuance. Our group surmised that Israel, with its coalition government would try to delicately balance its many competing interests. According to the Daily Sabah, the Israeli Supreme Court did, in fact, postpone the Dec. 25 deadline on Dec. 23, the same day the United Nations resolved that Israel cease all settlements in the occupied Palestinian territories.

Back home now, I take comfort both in knowing we have our Constitution as well as Justice John Marshall's analysis in Marbury v. Madison. Our separation of church and state isn't bad either.