Ex-deputy chief justice talks Netanyahu, elections, saving democracy

Hanan Melcer is a bit of an enigma: An establishment man the establishment did not initially want.

At first, Melcer was rejected by the IDF legal division, but eventually got in and would create a department for dealing with Supreme Court issues. He rose to the high legal division rank of lieutenant colonel.

Former chief justice Aharon Barak reportedly delayed him getting to the bench, but Melcer would become deputy chief justice of the Supreme Court.

He took over as chairman of the Israel Press Council in October, served as Israel’s Election Commission Chairman during the April and September 2019 elections, and was a past legal adviser to Channel 12. All of these roles show beyond doubt someone who is comfortable in the spotlight and knows the media well.

He sat on the Supreme Court for 14 years, which left him hesitant to give interviews, and cautious whether the nuance and meaning of his messages were being understood. Recently, Melcer opened up to the Magazine on a range of issues in his first comprehensive interview in English.

The interview started with questions about the landmark ruling allowing Benjamin Netanyahu to form a government in May 2020, despite already being mid-trial on an indictment for public corruption.  It shifted to Melcer’s concerns that the Netanyahu government and the current government are polluting the country’s Basic Laws.

Melcer openly opposes Justice Minister Gideon Sa’ar’s attempt to give the Knesset powers to override Supreme Court vetoes of legislation. We delved deep into his views about using the Shin Bet during coronavirus, the Israeli-Arab violence wave crisis, and his efforts to protect elections from getting hijacked by social media and foreign influences.

The Netanyahu ruling

Melcer and his former colleagues on the Supreme Court spend most of their time taking heat from the country’s political Right for allegedly being activists. In May 2020, the Supreme Court took its largest ever hit from the Left, who blamed it for paving the way for Netanyahu to remain in power despite an indictment against him.

Melcer stated that the court cannot step in when its intervention is prohibited by law. The Magazine interjected that the Basic Laws were silent about whether the court could block a prime minister from forming a new government (as opposed to forcing a sitting prime minister to resign after a conviction), which gave the court an opening to have nixed Netanyahu. “You can interpret an existing provision, but how do you interpret silence?” he asked. To illustrate his point of the court being deferential to executive power where a statute was silent, he narrated a parallel legal controversy where the law was silent in a previous case.

“The court has written that the prime minister can hold on to additional ministries in addition to being prime minister... The basic law on government earlier had said the prime minister could hold other ministries. The law for direct elections also said this,” he said. “But when they got rid of the direct elections provision, the provision allowing the prime minister to hold multiple ministries disappeared mysteriously from the text. Maybe they forgot it or dropped it intentionally.

“Most judges said [that despite the provision dropping] there was already an established constitutional norm that the prime minister can hold onto other ministries,” continued Melcer. “Which showed their view that deciding an issue based on a statute being silent still needed to be based on past practice and deferred to executive powers. With some limits after eight months they mostly continued the multiple-ministries power, even though the explicit provision authorizing it had been deleted.”

For him, silent statutes are not a place where the court can get creative and block Netanyahu from forming a government any more than they could completely end his holding of multiple ministries.

In a separate twist from the ruling, the Supreme Court allowed Netanyahu to form the next government on condition that his lawyer’s commit that he would sign a conflict-of-interest waiver not to be involved in any appointments or policies which could impact his trial.  

Looking at Netanyahu’s later attempts to wiggle out of the commitment and his eventual rejection of the attorney-general’s order to sign a conflict-of-interest waiver, does Melcer have second thoughts? Was the Supreme Court naïve? Melcer responded, “We did not leave things in chaos. This is part of the process. We issued a conditional order and then a final order. Some of the issues they [Netanyahu and the attorney-general] dealt with by themselves. They understood [Netanyahu] was going against his declaration,” he said. 

Furthermore, he said that the Supreme Court addressed the problem of temporary appointments, eventually stepping in to ensure permanent appointments in several roles.  He noted the prime minister eventually consented to an unprecedented conflict of interest document. Melcer thought the process of closing off Netanyahu’s involvement in legal appointments moved relatively fast and noted that in the US the process would have moved much slower.

Stopping pollution of the Basic Laws

Regarding the Basic Laws where the Supreme Court has not stopped the prior or current governments from making radical structural changes, Melcer said, “I wrote a dissenting opinion by myself. I think of the Basic Laws as one piece – or the basic setting of a future constitution. We need to set down the basic relationships between the branches of government, and between the branches and the citizenry.”

He noted that the Basic Laws already passed have set down some fundamental rights between citizens and the government, but that most can be easily repealed with a majority of 61 Knesset members, which any coalition starts with.

“In the past, there was an accepted norm that if you make a change to the basic governing structure, it would only apply to the next Knesset,” he said.

Melcer disapproved of the recent trend of changing the country’s basic democratic structure as part of coalition deals so that the new structure reflects the coalition that happens to be formed at that moment.  He said, “this is an improper abuse of the tool of Basic Laws, as a matter of managing the country’s democratic character – without even getting into the specific content the most recent coalitions decided on. We need to make a set rule that all substantial changes to our form of government should only apply to the next Knesset. This will reduce the incentive to customize and reinvent forms of government from coalition to coalition because it will prevent the immediate coalition from benefiting from the change.”

Furthermore, he said this would encourage the political class to think long term about their support for laws passed by the Knesset, even when the opposition may be in power. “If people do not know if they will be up or down… they do not know what place they will have… they must think of the other side.  This will reduce the pressure to change the constitutional makeup and will help build the constitution… and would elevate civil discourse on the issue,” he stated. “There is a debate about how much one can intervene with Basic Laws. If there is another basic law potentially contradicting it, who will say whether it is constitutional?”

His main suggestion is that small-brow politics not use Basic Laws as tools to pick away at preexisting Basic Laws, such as the Basic Law: Human Dignity and Liberty (1992).

He has said, “President Hayut had said [only] if someone abuses the Basic Law for the budget, the Supreme Court can veto it. I wanted to broaden this a bit: if you make a different disproportionate abusive change in other areas, it could also be vetoed by the court.”

A Basic Law to prevent an indicted Netanyahu from running again

Another Basic Laws controversy he discussed was the initiative to pass a new law to bar an indicted prime minister, such as Netanyahu, from forming a new government.

Melcer said that originally those pushing the new bill said it would not be limited to the next Knesset and would apply immediately.  “But then, I happened to be interviewed right before it was coming out – and suddenly they asked me about it and I said it was better to only apply it to the next Knesset. Two hours later, the proposed bill came out saying it would only apply in the future,” he said.

Saving elections from social media, foreign influence

Honing in on his time running Israel’s elections, he said, “The position was incredible. There was our excellent director-general Orli Adis. There is a permanent senior staff of around 20 people who work on every election. They are the main human infrastructure to also strengthen the next election.  The group gets broadened when including others who have been involved in the past – sort of like reserve duty personnel in the IDF – along with local committees... at that level we get up to around 200 people.” Moreover, he continued “there is a much wider group of active members which includes around 120,000 people on election day – all paid. There were some problems when they were volunteers.”

In terms of challenges, he noted, “When I was appointed to the post, it was after the first election in the US in which there were early rumors about foreign interventions [in elections], but then reports came out about Cambridge Analytica.”

Calling the mix of social media and aggressive attempts at foreign influence unique, he said he looked into what powers he had to combat these problems and found, “that all of the election laws were outdated. There had been the Beinisch Commission to recommend updates to the law, but the Knesset never approved them because the next election was always either too soon or too far off,” he said with a satirical smile.

Melcer decided he had no choice, but to deal with the new hard issues that others had ignored. “All of the Shin Bet, the Israel National Cyber Directorate (INCD) and other security services efforts happened in parallel but separately. I suggested a new idea: all government bodies would be obligated to assist the elections chairman. I called on all of them to do their separate part, but also in coordination with the chairman,” adding that he used finesse to preempt the disease with a cure.

The caution was needed because technically the prime minister managed the Shin Bet, the INCD and other security services, but everyone knew this would be problematic for electoral purposes. “As far as we know, all attempted foreign interventions failed,” he proclaimed.

Later, he spoke at Harvard University to help provide ideas for improving elections in the US. He gave a knowing smile that Israelis do not usually get to be in that position with Americans. Melcer said that there are still holes in Israel’s election laws and that he had tried to get all the political parties to commit to certain standards, but they could not agree – and that he didn’t have the power to force them.

He did intervene in specific disputes, discussing a poster campaign which said, “See who decides: the voter or those people,” referring to pictures of media personalities – something which violated the election law by attacking reporters. The violation was even more severe because the banners did not say who put them up.

Moreover, he said, “There was a probe and it turned out the Likud was behind it. They had the same banner on social media and they said they forgot to disclose the sponsor and they’ll fix it, but they can do whatever they want on social media.”

He responded to what they said, “It was the same banner, but I said if there is the same principle at stake or very similar and it is paid for by the same political party then the same legal principle must apply to social media.” Academics praised his decision, but said it was impractical to enforce.

He said he found a practical approach, “I invited Facebook and other social media, saying ‘you declared you would learn lessons from the Cambridge Analytica affair – what steps have you taken?’ They were not ready to make too many changes because there were new elections so close and they wanted more time. However, a new protocol was set up for complaint notices and for taking down problematic posts.”

Melcer asked Facebook if they would respect an injunction to take down a post after a customer complaint of abuse of the platform had been ignored. In the end, he said Facebook respected his injunctions and that he reached similar understandings with other social media entities.

Opposing Sa’ar’s Knesset override

Though some like former justice Menachem Mazuz believe they will need to accept some version of Sa’ar’s Knesset override of the Supreme Court, and are hoping that this comes along with other laws making it harder for the Knesset to arbitrarily change the basic rules of the game, Melcer’s opposition to such an override is unequivocal. "That there has been no override law is a major achievement. We don’t need it. The situation is different in other places where an override power exists but parliaments do very few overrides in practice. In Canada, they just don’t use it as they have a certain temperament of respecting the judiciary."

He stated, “I am against it and it doesn’t matter what the override number of Knesset MKs would be. We face problematic Basic Laws which proves we cannot trust ourselves to give the Knesset such an override power.” Acknowledging potential realities, he grudgingly said that if they were to do it, the override needed should be whatever the coalition is, plus 10 or 15 MKs from the opposition.

Shin Bet on coronavirus and the Israeli-Arab wave of violence

Regarding using the Shin Bet to fight the coronavirus, Melcer started by discussing the precautionary principle.  "In areas of philosophy, science and law, the principle dictates caution and freezing the situation when there is an innovation or paradigm shift with potential for causing disastrous harm at a time when extensive scientific knowledge on the issue is lacking." He said he knew of the existing principle in other countries in his capacity heading the court’s comparative research program, but that he was the first to incorporate it into the national security context.

Explaining, he said, “If there is a scenario where a catastrophe is possible, even if you are not sure – the legislative and executive branches can take action to stop the catastrophe by using the precautionary principle. I also applied this to security issues before corona. When corona came, there were waves and no vaccinations. There needed to be some tracking of the infection trends, but no one could do it. Then we got to the tool of the Shin Bet. With the Supreme Court president [Esther Hayut], I wrote about the precautionary principle as a concurring opinion alongside her main decision.”

He stated, “It was for a limited period, then vaccinations came. I was aware where things could lead and there could be deterioration [in privacy rights]. But the Shin Bet did not even want the job. The IDF called up a whole apparatus of reserves to be able to follow the infection developments – so I advocated the precautionary principle, but I said we should use it in a cautious manner.

“We gave them time, but said if the infection rate goes down, they [the Shin Bet] must stop – and they stopped,” he said. “The precautionary principle is the legal answer to the issue of corona. This has been publicized around the world. The existing laws say what we can and cannot do. Read the statutes and our court decisions. You cannot bring the Shin Bet into the picture with mere government decisions. But the attorney-general told them [the government] this. They would need to change the law,” and this required an analysis of constitutional law about which changes might be legal and proportionate, and which might go too far.

Regarding concerns that Shin Bet interventions in the Israeli-Arab violence wave would lead to the agency abusing its power, he said agents were, “helping the police in an ancillary way regarding security issues. Some of the weapons enter the jurisdiction of national security issues, but if it is just regular crime, they [the Shin Bet] will not get involved. Most of the headlines did not properly understand the nuances of what was approved and what was not.”

In terms of being in the headlines, Melcer noted he helped recently convince Eli Azur, owner of The Jerusalem Post, Walla! and Maariv, to bring all three media organizations back into the Press Council, which Melcer now leads.

Returning to his image as an enigma, Melcer described the religious backgrounds of his wife and his family. He said, “I have four sons. My wife is Orthodox and we met in university. I come from a secular background, but my grandfather from my mother’s side was a big rabbi in Krakow. He died in the Holocaust with followers. My mother had an Orthodox background and my father was secular.”

From their disparate backgrounds, he explained, “We needed to get to an understanding. I needed to agree not to break Shabbat and that the education of all of our children would be in Orthodox religious schools." He said their understanding included that he would not have to go to synagogue to pray, but he would need to go to social events. Half-resigned, half-happily he added that, “my wife is involved in many social events.” Notably, for one event he had to walk 10 km. with her due to the restriction against driving on Shabbat.

“In the army, three out of our four kids were in battle units. One was injured in the 2014 Gaza War; one has asthma, so he went into intelligence. Some of our kids took off their yarmulkes in the IDF, but then married Orthodox women, and our grandchildren go to Orthodox religious schools,” he said with a bit of a look of marveling at intergenerational developments. ■