Photo: Netanyahu and Deri toasting in happier days (vinnews.com)

By: David Parsons, ICEJ Vice President & Senior Spokesman

Since taking office in late December, the new Israeli government led by Prime Minister Benjamin Netanyahu has been running into a growing protest movement against its proposed judicial reforms that is shaking Israel’s democratic foundations. The heated dispute is quickly making the nation’s three recent years of political deadlock almost seem like ‘the good old days’.

Netanyahu’s new government has been passing a flurry of legislation to solidify its position, with a particular goal of reining in the Israeli courts. Many on the Right feel the more liberal judiciary has gone too far in its expansive review and reversal of numerous laws and government decisions over recent years. Thus, the new Minister of Justice, Yariv Levin of Likud, announced a sweeping series of judicial reforms which the coalition intends to pass in coming weeks, including a measure banning unelected judges from nullifying laws passed by the elected members of parliament. Even the way judges are selected is set for major changes.

This has triggered panic on the Left, which is warning these reforms will destroy Israel’s democracy by crippling its most principled and widely respected branch of government. They are vowing to launch a nationwide uprising that will dwarf the bitter ‘black flag’ protests against Netanyahu of recent years – a threat which the Right is labelling an ‘insurrection’ and attempted ‘coup d’état ’.

This heated debate has been brewing for some time now, ever since the Israeli courts began in the early 1990s to invalidate Knesset laws without any clear authority to do so. The underlying problem is that the judiciary cannot rightly declare a law ‘unconstitutional’ because Israel has no constitution. Thus, there are no enshrined checks and balances regulating relations between the legislative and judicial branches.

One commonly heard explanation for Israel’s lack of a constitution is that the ultra-Orthodox originally objected to such a document because the Torah should be considered modern Israel’s constitution. But it was actually Israel’s founding father David Ben Gurion who quashed the idea, arguing that the young nation was poised to be a model of progressive socialism and did not need such a rigid legal document impeding the path forward. So, some on the Right say the Left has no grounds to complain and that true democracy is letting elected officials make the most important decisions, while the courts should only interpret the laws.

At the heart of the current ‘constitutional crisis’ also lies a tug-of-war over the character of Israel as both a Jewish and a democratic state. For decades, the largely liberal judiciary has been borrowing heavily from court decisions and traditions in other Western democracies to protect and expand minority rights and individual democratic freedoms in Israel. Many on the Right see this as judicial overreach which is undermining Jewish majority rule.

The religious Right is further concerned, for instance, that too many recent immigrants are not truly Jewish according to halachic law and thus wants to change the Law of Return. The Right’s distrust of the courts also prompted them to pass the contentious Basic Law on Israel as the Nation-State of the Jewish People in 2018, just to remind judges of the ‘Jewish’ part of Jewish and democratic.

The raging dispute over the proposed judicial reforms is rapidly coming to a head as Israel’s Supreme Court just overwhelmingly ruled on Wednesday this week that Shas party leader Arye Deri is barred from serving as a cabinet minister due to his two past convictions for financial crimes while in public office. The court grounded its decision on the terms of a plea bargain Deri made in a tax offense case last year in which he promised to stay out of politics – a pledge he craftily insists was only meant to apply to the last Knesset.

Israel’s Supreme Court did show restraint by not basing the Deri ruling on other available grounds that go to the essence of the current dispute. For instance, the private petitioners against Deri urged the justices to exercise their power to review the “reasonableness” of government decisions, and also to strike down a brand new law specifically passed for Deri which allows someone to serve in the cabinet if their sentence is suspended. Both of those options represent the sort of self-expanded judicial powers that has the government seeing red.

Netanyahu needs Deri and his faction to keep his new government afloat, and must find a way around this sudden political crisis or plunge Israel into yet a sixth snap election in a row.