In Oct 2018, Shabtai hosted Israeli Supreme Court Justice Hanan Melcer at Yale University for a variety of lectures and private talks at Shabtai.
As a final discussion on this historic trip Justice Melcer was interviewed by attorney Steve Susman on the unique contributions of Israeli jurisprudence to International and Human Rights Law.
Gail Victor hosted the Shabtai NYC event at her home in Manhattan.
The event was attended by Israeli Consul General Danny Dayan, internationally acclaimed legal Scholars, human rights activists, leading journalists, attorneys, law clerks, thought leaders, and Ivy league students.
Perez Academy is honored to present this film honoring the State of Israel, eternal homeland of the Jewish people and only democracy in the Middle East.
Civil Rights in Gaza | Israeli Supreme Court Justice Hanan Melcer
The Supreme Court: US & Israel | Justice Hanan Melcer & Steve Susman
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Steve Susman: Justice Melcer was admitted to the bar in Israel in 1977. And I think has the distinction of being maybe the only member of the 15 member Israeli Supreme Court that actually practiced law and had his own commercial law firm for 30 years. But that's to me, as a trial lawyer and also someone interested in courts is a very important qualification because our courts in our country and your country probably need more people who have been seasoned in the trenches of being a advocate for clients.
Hanan Melcer: It's already the first point. I agree with you. Huh?
Steve Susman: Good. And so he has been on the Supreme Court for over a decade now, and last year he was named the deputy president, which is the second highest member of the Supreme Court. When he became a lawyer in 1977, I had already been practicing law for ten years. But I had the great privilege of clerking on our Supreme Court for Hugo Black. And I have seen and witnessed the changes in our court over the last 50 some odd years, which has been amazing changes. Justice Melcer, I'd like to begin by just commenting on the fact that, everyone in this country has become an expert on courts in the last couple of months. They know what petitions are. They know what writs are. They know what law clerks are. They know, and they certainly are familiar with how the Supreme Court gets appointed in this country. We have the controversial and.
Hanan Melcer: Or disappointed.
Steve Susman: Or right. They are disappointed, or not appointed. Time magazine this week had an article commenting on the fact that our court has become so central to our everyday life in this country, to what we can do, to who we can marry, to procedures we can have, to what we can say, that it was bound to end up being a very politicized and divisive institution. And so my question to you, starting question is, is there anything comparable, anything like that in Israel? I mean, is your court I mean, all of us know that the two supreme courts that stand firmest for individual liberty and democratic principles, or our Supreme Court and your Supreme Court, but has your Supreme Court ever gone the way of this divisiveness? That's my first question. Can you imagine something like this happened in this country in the last 3 or 4 months happening in Israel?
Hanan Melcer: Okay, I'll answer your question in a moment. But before that, you know, it's a Jewish tradition that whenever you start talking, first of all, you have to praise the the house and the hostess. So I take the liberty. It's called you have to speak bshvach ha'achsanya. So I take the liberty to thank you for your hostess and to thank John Victor and the whole Victor family. And because it's my last talk in the very short tour that we, Margalit and I made. I want to thank also to the Shabtai organization and all Shabtai members, which brought me here and brought me to the law faculty in Yale, and I had several talks there, and really, we enjoyed it a lot, the hospitality of the Shmully family and Toby. And of Toby and Rabbi Shmully. And I must tell you that what Margalit and I were amazed as the high level, because here are many alumni from Yale. The really high level of the students of Yale, which is incomparable to other universities I have seen. And I've also taught constitutional and administrative law in Tel Aviv University. Really, the students are in a very, very high level not to speak about the professors. So and before I answer the question, the last thank you is to a Mr. Steve Susman and his wife. I must tell you that when we were in New Haven, we went from one one event to the other. But we had the time to see the gallery of Steve's that he donated to the Museum of New Haven. And really, it's magnificent. So now I finished my thanks, and I'm coming to your question.
Steve Susman: Let me ask the question again better than I did.
Hanan Melcer: Better. Okay.
Steve Susman: This is what Time magazine said last week. Quote, in a nation divided left and right, we are coming to view the court less as an interpreter of the law than an activist imposer of moral and political outcomes. Can the same thing be said of the Israeli Supreme Court?
Hanan Melcer: Okay. So the answer is in in the affirmative. We and I must tell you that we have a very strong court. We are criticized by several circles that we are too much activists, and in this area might be that we are even more activist than the US Supreme Court, but I think it's good that we are doing it, because sometimes we save Israel from or the other branches of government from their deeds. And so we are criticized several times by the right wing parties in Israel, sometimes by the left wing parties, which shows you that we are okay because when we are criticized by both sides, it means that law and justice is our purpose and we try to achieve it and we achieve it. But you know, law is such a thing that in every case, per definition, someone loses and the one which loses, always or not always, it's very rare that he accepts the the outcome. So we are criticized by both parties and that's okay. But we are very strong and I hope we will be strong in the next future, because from time to time there are initiatives to limit our power. And for the time being, we have succeeded to block those initiatives. I don't know for how long, but for the time being, that is the situation. And in a moment, probably, I'll give you some examples.
Steve Susman: How many judges are on your court?
Hanan Melcer: Okay. We have 15 justices.
Steve Susman: How are they appointed?
Hanan Melcer: Okay. There is a we have a very special system of appointing judges in all courts, in the county courts, district court and the Supreme Court. There is a committee composed of nine people, nine members. The chairman of the committee is the Minister of Justice, and there is another minister elected by the government to be a member of that committee. The other members are three justices of the Supreme Court.
Steve Susman: Including you.
Hanan Melcer: Including me. And then there are two members elected by the Knesset, by the Parliament of Israel. Usually it is one from the coalition and one from the opposition and two representatives from the bar. Okay, so all together, it's nine. Now, in order to be elected a judge from in the county court or district court, you have to have a regular plurality of five votes out of nine in order to be elected Supreme Court Justice. You have to have seven votes out of nine. And by the way, many countries in the world that have different systems and the United States as well, they really come and to see how it works in our country. And they think that it's one of the best systems for electing judges.
Steve Susman: You know, because if you have a supermajority required to appoint a judge, it's much more likely that the judge is going to be central or centrist, right? In our country, where 50 senators can make the decision.
Hanan Melcer: Exactly. And it's not only that. If you analyze the composition of that committee, you see that five of nine members are professionals and four are politicians. So the profession has the majority in the committee. And due to the fact that you need to appoint a Supreme Court justice, you have to have seven votes. You have to have two more votes besides the five professionals. Of course, sometimes the representatives of the bar are also political people. So you have some kind of a balance. Another thing different from what you have in the United States? We don't have public hearings of the candidates. We have hearings, but they are not public and the hearings are in camera and people are being asked all different questions. Of course, before they are declared candidates, there is a security check out and other clearances that they deserve in order to be candidates. And then there is a hearing. But the hearing is before the committee and not before the public. It's not public hearing. That avoids scenes like we have seen here. Okay. And I don't want to comment any further on what happened here.
Steve Susman: I'm not going to ask you to comment on what happened here. There could not be this kind of hearing on televised television. In other words, a justice on your court, in our country, As you know, some people think they were appointed for life. In fact, our Constitution says they serve during good behavior, not for life. So if they misbehave, whatever that means, they are no longer protected by the Constitution. But what's the tenure of your justices?
Hanan Melcer: Here again, we have I think it's a good system. Whenever you have your birthday of 70. By law, you have to resign or you are resigned by law. So at the age of 70, you stop being a Supreme Court justice. And I think it's good. I have two and a half more years to go, but everyone knows when he will end his term of office.
Steve Susman: When the court sits and hears a case, of course, our court sits en banc. Nine justices sit there. Do your usual cases come before an en banc court or a three judge panel?
Hanan Melcer: Okay. We usually sit in panels of three. In constitutional matters, and in very important cases, we will sit in larger panels of five, seven, nine, eleven and or thirteen justices. 13 justices were just twice. But in the two other justices in that case, and in a moment, I'll explain to you why, are not sitting, because they have to deal with the urgent matters that come before the court. So usually we sit in a panels of three. In very urgent cases when you need to issue a temporary injunction, it comes before one justice, but then it's being transferred to a larger panel. And here you have- in order to make a fair comparison, the US Supreme Court hears about 100 cases per year. After you get a leave to appear before the Supreme Court, guess how many cases we are hearing per year?
Steve Susman: Actually, you mean actually hearing argument- oral argument on it.
Hanan Melcer: That's right.
Steve Susman: Several hundred.
Hanan Melcer: Okay. We hear, oral argument, all oral arguments in 4000 cases per year.
Steve Susman: Wow.
Hanan Melcer: Now beside that-.
Steve Susman: How much do lawyers get? Three minutes each.
Hanan Melcer: No. So we are so. But to be fair in the comparison, due to the fact that you usually sit in in panels of three, you have to understand that every judge is almost sitting on about 1500 cases per year. But and as a matter of fact again, we really refer many times to the US, let's say history, legal history and to your decisions. We didn't have yet a justice like Chief Justice Taft, which made a reform in your system and said that in order to appear before the Supreme Court, you have to get a leave, because before justice Taft, Chief Justice Taft came into office. And you have to remember, he came into office after he was the president of the United States. So people thought he has still the power of a president. So he made- once he came into the court, he said, it's really not reasonable that we here by way of right all the cases. And he said, I gave an ultimatum. Again, he thought he is still the president of the country, and you have to change the system so that you can come before the court. Just when you get a leave.
Hanan Melcer: In Israel, every aggrieved person can come before the Supreme Court by way of right, as a way of right and you don't need to take a leave or to get a leave. So the work load is terrible. But that is the difference. And I think here that the US system is better. Now, we wanted to change it several times, but in Israel, in order to change it, you have to change the law. And in order to change the law, you have to get a consensus between the court, the Minister of Justice, the government, the parliament and the bar. And you can imagine that such a consensus cannot be reached. And as a matter of fact, first of all, we are Jews mostly there. So it's very difficult to get such a consensus. And beside that, let me put it delicately, let's say many organizations do not want us to be as the US Supreme Court because the US Supreme Court is dealing just with the heavy important cases. And there are some elements that would like us to to deal with the small cases as well, or basically with the small cases.
Steve Susman: Of the 1500 cases, say, you would hear maybe 1500 cases. Of those cases, how many will be decided by a written decision?
Hanan Melcer: All of them.
Steve Susman: All of them.
Hanan Melcer: All of them.
Steve Susman: So in our country, where you have less than 100 cases, maybe 80 cases orally argued, thank you. Where you have 80 cases orally argued a year, each of the nine justices has four law clerks. And they have become very kind of divisive, I would say. There are huge number of dissenting and concurring opinions written. And does the Israeli Supreme Court, do you write many dissents or concurring opinions?
Hanan Melcer: So first of all, that is something similar to what you have in the United States. Every Supreme Court justice has four law clerks. Then, by the way, it wasn't so when I came to the court due to the fact that I came from the private sector and I saw the workload, I told them that it's nonsense not to have more clerks. And it was a small reform that I had had initiated. And again, it's another sign why it's good to have someone coming from law firms into the public sphere, because they understand that, you know, to get more law clerks is nothing in comparison to all the expenses that the court has. So it has a things go in Israel. It's not like you run, ran and run a very big law firm. In my eyes, I told them in my law firm I would make the change within a day. It took two years to convince them that it should be made and then two years later, to implement it. So you understand that's the difference between the private sector and the public sector. But still it was done. So now every justice who is coming to the court, first of all, he comes to my chambers and say thank you.
Steve Susman: But. Well, let me ask you now.
Hanan Melcer: Now about the majority and the consensus. We have, I would say that about 65% of the judgments are by consensus, 35% are by dissent. And if just 5% if we are sitting in panels of three, there are three opinions, just in 5%. Usually it's two against one.
Steve Susman: Two, one.
Hanan Melcer: Two, one. And in the constitutional matters. Sometimes I know already what will be or I think what will be your next question. So I'm telling you, usually in large panels, there are still two main opinions, and there is the majority and the minority. It's very rare that there are three opinions in large panels.
Steve Susman: So in our country it, this has changed too, it's very easy to identify the justices who are on the right and the justices who are on the left. That division is 5 to 4 today.
Hanan Melcer: It was five four.
Steve Susman: It was.
Hanan Melcer: It will not be any more five, four.
Steve Susman: Okay. Yeah. So can you identify is that can that people say the same thing about the Israeli Supreme Court or the 15, how many would you consider a Ruth Bader Ginsburg's and how many would you consider Samuel Alito's or Scalias? Okay.
Hanan Melcer: Okay.
Steve Susman: I bet you can name them.
Hanan Melcer: No, no, no. Okay. I'll tell you. First of all, due to the different system, it's not a political appointment, right? So I described already how the selection committee is composed of and how it works. So it's not political. The nominations are not political. However, to be quite frank, the politicians in the committee try, whenever they are in the coalition, to try to bring. And I must tell you. And the same goes in the United States, very professional justices, but who tend to be on more or less on their side. Now, it happened in Israel and in the United States as well, as you may know, that Justices who had the nomination were, let's say, were.
Steve Susman: Leaning left.
Hanan Melcer: Leaning to the left.
Steve Susman: Switch to the right.
Hanan Melcer: Switched to the right, and vice versa. And and the reason is that that, you know, we have to decide according to law. Now, in the United States in the last I don't want to comment too much, but I'm quite familiar with what is going on in the United States Supreme Court, that tendency that sometimes a judge that was nominated by the Republicans tended later on to be a liberal, and vice versa. In the United States, it is less and less now. In Israel, still we are let's say, if you compare in the era before the era you had in the United States. So, for instance, Chief Justice Roberts, he voted for the Obamacare plan. We have such cases in Israel as well. As a matter of fact, if you- about a month ago, I was not on the panel. There were three there were several women from Gaza who had cancer and their husbands were active in the Hamas terror organization, and they wanted to get a medical treatment in Israel, in Israeli hospitals. But the and you have to understand that there is a lot of tension now in Gaza against Israel. And they wanted and their husbands were military activists of the Hamas, which is a terror group, and they wanted to to get in. Now, the military commander didn't allow them in, and a panel of three judges decided that they should be let in. Now, why I'm mentioning it? For two reasons: one, in this panel, there were two justices who were nominated as right wing justices, and they decided to let them in. The second reason I'm mentioning it, because the Supreme Court of Israel is the only court in the world that allows people from Gaza and from the West Bank to file petitions directly to the Supreme Court.
Hanan Melcer: No other court in the world allows it. And really, Jews from all over the world are coming to see this miracle because, for instance, in the United States, people that are captured, for instance, in Guantanamo cannot appeal to the system of the legal system of the United States and we allow it. And we are really very unique in this feature. And, you know, now the Palestinians say that we are so smart that we allow it because once we allow it, the Palestinians cannot go to international tribunals because they get their remedy in Israel. But I must tell you that the Palestinians who do not recognize Israeli authorities and Israeli organs, the only organ that they are willing to accept is the Supreme Court of Israel. And they are filing petition to the Supreme Court because they feel and that is the only organ that they accept because they feel that in our Supreme Court they get justice. Now, whenever we make a decision in their favor, we get a lot of criticism. So was the case in this judgment that I just described. And if we deny their petitions, then we get criticism from the left side. So still, it's the only court in the world that allows it. And getting back to your question in this panel that decided, there were two justices out of three that were considered to be conservative, to be from the the right wing, but they said they saw that international law and humanitarian law allows it or they should get help in Israeli hospitals because they could not get help in any other hospital. So that shows you something.
Steve Susman: So [inaudible] more basic because I don't really understand how it works in Israel. But we have our justices are in charge primarily of interpreting our Constitution, which is a document that's over several hundred years old. And, you know, there's this big argument in this country on the court about whether you should be an originalist and go back to what the Founding Fathers meant when they wrote the document. You don't have to go back that far in Israel, but I assume, well, you don't have a constitution. Do you have a constitution? That's my question is-.
Hanan Melcer: Okay. I'll explain. As a matter of fact, we don't have a full constitution. But once the State of Israel was established, the first elections for the Knesset were aimed to form a constitution when the country was established. After the people were elected into the Knesset, then Ben-Gurion and the religious parties thought, it's not a good idea to have a constitution at that moment, basically because of two reasons. First of all, no one, no government likes to be constrained by a constitution. No, no one in any other country in the world. And so was Ben-Gurion. Beside that, the question of the relationship between the religion and the state came up. So what they decided as a compromise, and it's called the first legal revolution of Israel. What was decided that there will be a constitution, but not in this the term of office of that Parliament. But a Constitution will be drafted within a period of time. They didn't define the period of time, but chapters by chapters and every chapter will be called a Basic Law, and the Basic Laws will have the force of chapters in the Constitution to come. So now we have about 15 basic laws. I say about because there is a difference. There is a dispute of 1 or 2 laws, whether they are basic or not. But we have those basic laws. And the next step was whether we can declare a regular law unconstitutional because it contradicts the basic laws. And 20 years ago, more than 20 years ago, our court, the Supreme Court, decided that, very much like the US Supreme Court in Marbury versus Madison, decided that we have the power to declare a law unconstitutional and if it contradicts the basic laws.
Hanan Melcer: Now, it's very interesting because we made the same move like the US law. And if you know the US Constitution and the US Constitution, there is no provision saying that the Supreme Court of the United States is allowed to declare a law unconstitutional. So we made the same move. We cited Marbury versus Madison, and and then that was decided on the principle. Then the question was, who will be the first one to have a law declared unconstitutional? And many jurists wanted to be the first ones. And as being a litigator - in a moment - I had the privilege to be the first one to make a petition to the court and to declare several provisions of the law unconstitutional. And just to tell you that when the clients came in and asked me to represent them in court, they wanted a reduction in the fees and I didn't. I told them, you'll get the reduction. I didn't tell them that even if they would have asked me to do it pro bono.
Steve Susman: You would have done.
Hanan Melcer: I would do it because I knew that a good case to be the first case to declare a law unconstitutional. So later on, we made a party. And then I told them that I was willing to do it for free.
Steve Susman: Sure, they were delighted to hear that.
Hanan Melcer: And I gave the money for public purpose.
Steve Susman: So let me ask you about let's go to the individual rights, an American and Israeli, an American under the First Amendment enjoys the right to freedom of speech. Is there a similar right in Israel guaranteed by written basic law?
Hanan Melcer: It's a good question and we have several rights written in. We have a basic law called the Basic Law of Liberty and Dignity. Now, we don't have something similar to the First Amendment as far as free speech is concerned. So what we did in order to safeguard free speech, we said that free speech is a total right from the right of dignity. And by the way, here is the Consul General of Israel. His nephew. I think it's your nephew. My cousin.
Hanan Melcer: Your cousin. We based it the principle to, first of all, the principle to declare laws unconstitutional. We did by citing Marbury versus Madison. And here it's connected on the technique that we made the right of speech. A daughter right from the right of dignity. We did it in several ways. One way we based ourselves on the doctorate thesis that, I'm sorry.
The doctoral thesis in Yale. Yeah.
Hanan Melcer: It's just that she made in Yale, and now she is not practicing law, but she is probably the most well known journalist in Israel. But one of the-.
I Protest the word probably.
Hanan Melcer: Okay, so that was the way. So the technique was that whatever rights are not written directly in the, let's say, the chart, our charter, we say they are a part of dignity. They are either part of dignity or liberty And now we have already daughter rights, and we have all we have now formed, even grand daughter and grandchild children of that right. So that is the technique. By the way, other Supreme courts made the same technique. If something is lacking, if you have two basic rights like liberty and dignity, you can put into it other rights. So you are much stronger in the First Amendment, but we can manage with it as well.
Steve Susman: But freedom of press too is covered under free speech. But of course, freedom of religion. How about freedom of religion? We have. Okay, I better stay away from religion.
Hanan Melcer: Okay.
Steve Susman: Let me. Let me go.
Hanan Melcer: No, but let me say something about freedom of the press. We have now a case I am presiding. It's nine judges, but we didn't issue yet a judgment, so I don't want to comment. By the time till now, we just declared the freedom of speech as a total right of the right of dignity. The parties argued before us and we are going to issue a judgment. But of course I can not comment
Steve Susman: Let me ask you. So I assume the Second Amendment is the right to bear arms, but Israelis carry guns around most of the time anyway, don't they? So that's not totally equivalent. How about our Fourth Amendment literally guarantees the right to be free from unreasonable searches and seizures. And the court, our court, has implied from that a right of privacy, and implied from that a right of a woman to choose whether to, you know, end a pregnancy or not, or to take contraceptives, all derived from the Fourth Amendment. So in Israel, for example, do women have the right to choose or not?
Hanan Melcer: Okay. So first of all.
Steve Susman: Protected by law.
Hanan Melcer: First of all, we have in this a basic law of liberty and liberty and dignity. We have a specific right of privacy in the Basic Law. So as far as privacy is concerned, we have it in the Basic Law. Now in Israel we are very liberal and women have the right to choose their way, in those matters and in all gender matters, we are probably the most liberal court in the world. And again, I don't want to comment any more because there are still two cases to be decided, but with women the right to choose what to do with pregnancy, we are very liberal, very liberal in, let's say, in comparison to other jurisdictions and in other matters of gender, we are also liberal. I don't know whether we are the most liberal country, but we are very liberal.
Steve Susman: Okay. How about, do you have anything here in Israel? Well, how about. So I read in the New York Times last week that there is a 22 year old woman who went to Israel to study, who has been ordered deported because she was active in an organization in her university in Florida that was supporting the boycott, the boycott.
Hanan Melcer: BDS.
Steve Susman: BDS?
Hanan Melcer: Yes.
Steve Susman: Okay. And there's apparently some law that says that you- in our country, they don't have any right. They are deported without a hearing, without their children, and incarcerated with mostly without a lawyer. I'm from Texas, so I know what's going on at the border. But this woman apparently is going to get some kind of hearing in your country. She has actually, the deportation has already been stayed, according to the article. So how could that case come before your court?
Hanan Melcer: Okay. So first of all, I will update you because on my way here, there's a. Okay, I'll update you because on my way here, I got a piece of news from my court about that. So first of all, and you are right, it's different here and in our country because here the immigration officer can tell such a woman that he is deporting her. He doesn't have to give any reasons. And she doesn't have any legal remedy whatsoever. In Israel, she can make a petition, first of all, to a quasi judicial person from the Ministry of Interior, then go to the district court, sitting as an administrative court and then to appeal. So she has three chances and then to appeal to the Supreme Court. Now she was denied by the quasi judicial officer from the Ministry of Interior. She was denied by the District Court of Tel Aviv. And today, today in the morning in Tel Aviv, in Israel, she had made a petition to the Supreme Court and her deportation was stayed. And a panel of three will hear her case on Wednesday, so.
Steve Susman: Pretty damn quick.
Hanan Melcer: Still, I don't want to, you know, to say any further because due to the fact that I'm going back on Wednesday, I'm not on the panel because it's most likely would have been that I would be on the panel, but they might be- after if the answer will be in- whatever answer there will be, someone may ask for a larger panel. We have such a procedure en banc, so I don't want to refer any further, but it shows you how things are being dealt in Israel in comparison to what is done in such cases in the United States.
Steve Susman: How about jury trials? This is my favorite subject as you know. So are there jury trials in criminal cases.
Hanan Melcer: No no. No. We don't have any jury trials. Neither in criminal cases nor of course in civil cases. And I must tell you that once such a suggestion was made to to to bring jury trials to Israel, but it wasn't accepted. And you have to understand, it's very difficult because here people who are sitting as jurors, they are elected and they have to sit as reserve duty in Israel, we have enough reserve duty. So, you know, beside having people going to the Army as reserve duty to and even from this point of view, to add more duties on the citizens is difficult. And there is also criticism about the knowledge of the people of the law. By the way, I'm not so sure that in criminal cases, let's say regular, reasonable people will not have the same logic that the judge has because as far as facts are concerned, not legal matters. So but still, we don't have any. The answer is we don't have any juries.
Guest: A Jewish jury would be a nightmare.
Hanan Melcer: Okay. Okay. Okay.
Steve Susman: So here's so here's the final question. Then I want to throw it open to the audience. When I was clerking for the Supreme Court, it's public approval rating was they didn't have a Gallup poll, but my assumption was about 80% of Americans approved and had confidence in the job the Supreme Court was doing. That dropped about six years ago to as low as 40% of the Americans, I would have thought that it was even lower today. But in a Gallup poll conducted this summer, the approval rating is up to 53%, so it's recovered from the all time low. No poll has been conducted since the Kavanaugh hearings, but my suspicion is it's down in the toilet again. That approval rating. Is there any comparable opinion poll done in Israel? And what degree of confidence does the Israeli citizens have of your court?
Hanan Melcer: Once it was, first of all, we have something similar. Once it was 80%. We went down into about 65%. And I hope from now on, we'll will go up, but it went down to 65%. I don't want to analyze now all the reasons for that. And I hope and we are as far as we are concerned, we are trying to do the best, the utmost so that it will come to 80% as well. We have a problem that several politicians are really attacking the court very firmly and not politely. And one of the members of the Knesset said that a D9 should be sent to the court in order to ruin the court.
Guest: The bulldozer.
Hanan Melcer: A bulldozer, a bulldozer.
Steve Susman: A bulldozer.
Hanan Melcer: Yes. And then to finish the Supreme Court. He apologized later, later on. But now he came back to those words. That helps-
Steve Susman: Disrespect.
Hanan Melcer: To disrespect the court. For the time being, they are not too many like him, but of course it causes harm to the court. And you have to understand there should be dialogue between all branches of the government, of the state, the Parliament, the court and the Parliament, the government and the court. The problem is that this dialogue should be handled politely, and once it's just politely from our side, it's a it may. It's difficult to handle. And in spite of the fact that he said what he said, we didn't react. And we do it our way and we speak by our judgments. But might be that in some, if it will go on like this, we'll have to react as well. For the time being, we are gentlemen and-.
Steve Susman: We have something to learn from you.
Hanan Melcer: And we are ladies as well, because there are about four. Before there were, there were five women justices in the court. Now there are four. So we behave like gentlemen and ladies and we do not react. But it might be that we'll have to react.
Steve Susman: Now, any questions for Justice Melcer? Anyone's got some questions? Yes, sir.
Ian Sapolsky: One thing that I'm thinking.
Hanan Melcer: Can you tell us who you are?
Ian Sapolsky: My name is Ian Sapolsky, and I was invited here as a guest of somebody that attended Yale. And I've been involved in Jewish book publishing in the US for about 20 years. So my question is, it seems that if somebody brings a case, there could be a permutation of three different groups of three of you your justices deciding it. So isn't it very possible that that case, depending on which group it goes to, could have a different outcome? And is there any way that the case could be manipulated to go before a certain group that they would prefer?
Hanan Melcer: I got your question. First of all, it might happen, but not the manipulation, because we have a very firm system of how the justices are being delegated to each case. So there is no mean of manipulation, but due to the fact that there are five panels, it might happen that there will be two contradicting judgments. In that case, that is the one, a cause whereby if such a thing happens, that's one cause that you can ask for a larger panel. And that we took from the Continental system. And in such a case then, almost for sure, then either the Chief Justice or me, we decide to enlarge the panel and to have the justices of both panels in the panel, plus another three justices. So altogether nine and they hear de novo the case. Okay. So that is the system that.
Steve Susman: Is similar to our courts of appeal where there are panels of three judges but if they disagree there is an embankment.
Hanan Melcer: Exactly, exactly.
Steve Susman: Procedure.
Hanan Melcer: Exactly.
Steve Susman: Yes, ma'am.
Guest: So I'm John Victor's mother. And Stephen Victor, too. Well, because he's the Stephen Victor is. John's brother is here with us.
Steve Susman: Okay.
Guest: Gail's sister. All right. So my question is, I'm a lawyer, so I'm thinking about certain cases in this country that that get a higher investigation or strict scrutiny. I guess Steve would maybe frame the question. So what kind of cases would take a very serious review from the Supreme Court?
Hanan Melcer: Okay. First of all, constitutional matters get usually from the beginning large panels. For instance, in order to declare a law unconstitutional, you have to have a large panel of at least seven justices. Okay. So whenever the comes before the court, a constitutional question or a question whereby a law can be declared unconstitutional, we see it at least with seven justices and sometimes even more justices. 9, 11 and so I told you twice 13. Now, other cases there are, you know, sometimes there are very light cases. Then we hear them in panels of three and they are very- we get written arguments and the oral argument is very short. And in major cases, in every case we we get written arguments. But in heavy cases we hear arguments for about an hour. And Constitution matters may happen that we hear arguments for a day and sometimes even two days.
Guest: I think what I'm thinking of is like a law that's passed that bridges somebody's freedom of religion. I mean.
Hanan Melcer: Those, those.
Guest: Race or gender or.
Hanan Melcer: Those cases will be either. First of all, they'll be heard usually by larger panels, and at least we'll hear the case beside the written arguments for about an hour, sometimes more than that.
Brandon Hellwig: Okay, so we mentioned- my name is Brandon Hellweg. I graduated Yale, just.
Hanan Melcer: Graduated Yale in what?
Brandon Hellwig: In May? I studied ethics, politics.
Hanan Melcer: Sorry.
Brandon Hellwig: I studied ethics, politics.
Hanan Melcer: Okay. Ethics, politics and?
Brandon Hellwig: Economics.
Hanan Melcer: Economics.
Brandon Hellwig: Okay, so most justices on the Supreme Court today served on a circuit court and have a pretty typical path up to joining the Supreme Court. But in the past, including Justice Black, who you said you clerked for and Taft, who we mentioned earlier, there are other paths into the Supreme Court. You mentioned your service in the or your work in the private sector as well. What's the typical path people take up into the Israeli system?
Hanan Melcer: Okay. So we have a in those 15 justices, we have a very interesting combination. The majority are justices that came, as you said, from the circuits or from the district court. So they are usually there are 7 or 8 justices coming from the system and coming from the system during the years. Now, beside that, usually there are 2 or 3 coming from the academia, professors, law professors, two, usually two are coming from the attorneys general office and they are pro, let's say they take the criminal attitude. And two are coming from the private sector. Now, one of the justices that came after me from the private sector, after ten years, he has resigned because of the terrible workload. And he said, ten years, it's enough. And I hope if I'll be healthy enough to resign at my 70 years birthday. But I think that because now I'm just one justice coming from the private sector. And, you know, there is a Hebrew proverb saying tov shnayim min echad, it's better to have two rather than one. I hope that later on another justice will come from the private sector and at least one. And when I resign, I hope someone will replace me also from the private sector. Now this cocktail gives a good combination because everyone has his knowledge and his experience and his attitude that he has formed during the years. So I think that it's good to have this combination, and it's good that the majority of the judges are coming from the inferior courts. But still, you need to have the academia, the attorney general. As far as I'm concerned, I think there there should not be more than two from the private sector.
Steve Susman: Our Supreme Court, by the way, is not supposed to be a fact finder. Facts are found by the trial judge. I gather that your Supreme Court does more fact finding than we do, for example, just for example, one of the controversial decisions- I googled you and I found out about his controversial decisions. One was when the court he was on a panel of three judges that authorized the Israeli Defense Forces to use live ammunition at the barrier between Israel and Gaza, in which a number of people were killed recently. So is that right? Did I get it right? You did. You were on that opinion and it was some notoriety there. So tell us about that.
Hanan Melcer: Okay. So first of all, you are right saying that we are more flexible with the facts rather in comparison to the US Supreme Court. Secondly, you have to understand again, there is something very special and unique in our Supreme Court that in such cases you can file a petition. It's not like in the United States that it goes from downwards to down- up. You go straight to the Supreme Court in such cases. And in a moment, if we'll have time, I'll explain why it is like like that. And it has historical reasons as well. But usually we do not comment on our judgments. And I wrote the main judgment there in this case. And you have to understand the situation. And we got affidavits. And so we had fixed facts there. And you have to understand, in that case, it just happened to be that thousands of Palestinians made demonstrations on the fence between Gaza and Israel. And, you know, it looked as if it's civil demonstrations. But they didn't come with with flowers. They most of the people didn't come with ammunition, with guns. But there were active military, a Hamas people in the crowd. And Hamas organized all those demonstrations. Now, you have to understand when about 15,000 people are demonstrating near the fence and and trying to go in by, they called it a civil demonstration.
Steve Susman: Disobedience.
Hanan Melcer: And or disobedience. And once they start running into the fence, the question is what you have to do according to law, there was no such it. Now, my judgment is a worldwide precedent, because such a case never, ever came before any Supreme Court before. I based my case. It's very interesting. There was a Red cross conference, and a professor has raised this question theoretically. What happens? And he said in this Red cross conference that in such a case, if it will occur, I don't know whether they got the idea of the professor. He made a theoretical question, but then the answer was that in such a case, you are allowed to shoot the people in the theoretical case. And I based my judgment on the theoretical case. Now, they have claimed that it's just a civil disobedience. But we found out and that the people who were killed about. Sometimes you miss, but 80% of the killed people just happened to be were officers of the Hamas so and that we knew when we heard the case. So first of all, I based my case on Red cross conference, which and was adopted by the Red cross. Secondly, the fact was that innocent people were not found killed. Just I say 20% were. Let's say it's either we didn't find who they were or they were they about 80% of the killed people were Hamas officers.
Hanan Melcer: And in such a case, you have to decide what to do because the other alternative is to let them in and then they can, you know, kill the settlers in the other side or army soldiers. So that is the dilemma that we had. By the way, that case you have asked we it was filed, the petition we filed to the court, we heard it and within three days we issued a full judgment with 50. I didn't sleep at all, though, but we issued the judgment within another week. And now it's been cited all over the world. And I can tell you that the many US jurists in the universities support our judgment. There is, of course, there is also criticism. I wouldn't deny the fact that there is also criticism. But and then we said that in the other 20% of the cases that we don't know whether the people it's ex post facto. We don't know whether they were military, activists of the Hamas. Still, if there was a mistake or they you know, sometimes you miss the target. It also happens. All those cases that should be checked by the Army in order to improve the checks and balances next time and to draw lessons from what happened there and really later on.
Hanan Melcer: First of all, for a while it stopped. Unfortunately, in the last week it started again. So in heavy numbers, but that is the situation. And it's true that in such a case we have to to fix the as much as we can, the facts as well. And again, you have to understand that in those cases, it's something that never, ever existed in any other court in the world. During the time of so-called quasi war, the Supreme Court is hearing the case. And you don't have it in any other court from many other doctrines like unjust disability or because, you know, some of the organizations, you know, one petitioner was the civil rights organization of the Gaza people. And I didn't ask them in this case, but in a prior case, I asked them in Gaza, you have a court to you are an organization for Civil Rights. What are you doing in Gaza as far as civil rights are concerned? What are you doing with our the dead bodies of our soldiers whom you keep and you even do not disclose whether they are in your hands or not. Are you active there as much as you are active in our jurisdiction? Being an organization for civil rights who is organized in Gaza and just make petitions in Israel and not in Gaza, but I'm just leaving it like that.
Steve Susman: Yes, sir. Let this be the last one right here.
Jack Wiener: Okay. Thank you. I'm Jack Wiener, and I'm an attorney, but I.
Hanan Melcer: And a professor of law.
Jack Wiener: Yeah. Okay. And one thing I teach is the law of war. I wonder if you could speak to the following interesting mismatch. There's a mismatch at times between how the Israeli Supreme Court might view an issue, and how either the international legal community or a specific country's judicial system might view it. So how does this come up? An example would be Spain decides, oh, we think that Israel is engaged in war crimes. In our view, we believe we have jurisdiction. So if Bibi Netanyahu happens through the airport, we'll grab him and we'll try him for war crimes. How do you see this moving forward? The ability of countries to say, I think another country that I'm not involved with has committed a war crime, but we're not going to defer to their Supreme Court on the issue. We'll just take it into our hands. What do you see the way going forward?
Hanan Melcer: Okay. First of all, we do our best to decide the case according to the Israeli law and according to the Humanitarian international law as we understand it. Of course, there may be any disputes, but as you are an international law professor, you understand that for the time being, there is no one jurisdiction that decides on those issues. And there is no such a forum. There is a criminal court that in some cases can hear such cases. But again, the there should be a consensus and we are not yet there, whereby there is one form that is considered the ultimate form to decide. So we do our best and unfortunately we have more experience than most of the courts in the world in terrorism matters.
Hanan Melcer: And in cases like that, as I told you, in the case that you have mentioned, we were the first one in the world to tackle such a problem. And unofficially, I can tell you that many courts in the world, supreme courts, whenever they tackle new problems, they organize a seminar. So it's called with us to hear how we deal with a problem. It's an unofficial seminar, how we deal with matters that didn't come before them before, but they have to deal with them, usually in Europe. I don't want to go any further, but I'm telling you that many courts as such, or justices personally are interested in our experience and in our judgment. Here when I see the Consul General of Israel, we ask many times that the Ministry of Foreign Affairs will translate all our judgments in those matters into English, because, as you know, again, my suggestion was that we'll do it immediately after we issue such a judgment. So they said, okay, but it takes about a year or two till it happens. And it's unbelievable that we need the help of several universities in the United States in order to have those judgments translated. And whenever there is such a request for a different court, then we get a special budget for translating the cases. So that is the truth and that is the fact.
Steve Susman: Thank you.
Danny Dayan: I would like, first of all, if you allow me also to to thank the hostess and to say that I was looking at the beautiful view from your window. And I had two options whether to look right and get angry at the United Nations, or to look to the left and be proud of the Technion Israeli Technion campus here in Roosevelt Island, which is really one of the sources of pride that we have here in New York as Israelis. So I opted for the left. It's not usual. It's not my usual choice.
Hanan Melcer: Or to look in this building and to look at Trump.
Danny Dayan: But I would like to say that I have some observations about what Justice Melcer said
Hanan Melcer: That shows us that we are independent.
Danny Dayan: Exactly. Yeah. But I will say that, as Justice Melcer said, you know that the Israeli Supreme Court justices and justices at all, they don't have public hearings in the Knesset, in our parliament. But I can assure you that if we had, even though I don't know what Justice Melcer did as the high school student, he would be approved unanimously. And you know that there are justices of the Supreme Court whose 70th birthday are celebrated by all the population of Israel. Justice Melcer's 70th birthday will be celebrated only by Margalit.
Hanan Melcer: Thank you.
Steve Susman: Thank you very much for coming. Thank you. Thank you. Enjoy.