Court tells Netanyahu to fire ally, intensifying fight over democracy

Other than Prime Minister Benjamin Netanyahu, the most consequential figure in Israeli politics today is Aryeh Deri, a senior minister in the country’s hard-right religious and nationalist government and head of the ultra-Orthodox Shas party, Mr. Netanyahu’s biggest coalition partner.

His pivotal role in the political constellation that is testing the strength of Israel’s democratic institutions was confirmed Wednesday as the Israeli Supreme Court transformed a theoretical battle over Israeli democracy into a practical one early in the life of the three-week-old government.

In a not entirely unanticipated yet bombshell decision, it ruled that Mr. Deri’s appointment as both interior and health minister was “unreasonable in the extreme” due to his repeated criminal convictions. And it instructed Mr. Netanyahu to fire him.

The case is a microcosm of a larger anticipated battle as the Netanyahu government pushes forward with plans to radically alter the country’s judicial system, undermining the independence of institutions like the Supreme Court and, according to critics, likely handing unchecked power to the government and parliament.

In an unprecedented primetime speech last week, Esther Hayut, chief justice of the Supreme Court, declared that the government’s plans would “deal a fatal blow” to the country’s democratic identity. President Isaac Herzog, whose political power as a largely ceremonial head of state is limited, warned that a “historic constitutional crisis” is looming.

Already, tens of thousands of Israelis have taken to the streets of Tel Aviv and elsewhere in protest against the government, with more mass demonstrations planned.

“Will of the people”

Mr. Netanyahu’s coalition of Jewish ultranationalist and religious parties, which secured a 64-seat majority in the 120-seat Knesset in last November’s election, reject talk of a crisis and maintain that they are simply implementing the “will of the people” and restoring “sovereignty” to the voters – as opposed to unelected and “activist” legal officials.

This approach was on full display as coalition leaders responded swiftly to the Deri verdict, vowing in a statement late Wednesday to “correct the injustice and severe damage caused to the democratic [process] and the sovereignty of the people,” including “over two million citizens, the majority of the people, who voted for a government led by Benjamin Netanyahu in which Aryeh Deri will play a central and significant role.”

Mr. Deri, whose faction currently has 11 members in the Knesset, has been a mainstay in Israeli politics for over three decades. He has led the Shas party – its name is a Hebrew acronym for Sephardic Torah Guardians, indicating the ethnic base of its support – into nearly every governing coalition and personally filled senior cabinet posts. Yet legal troubles have bedeviled him since the late 1990s, when he was convicted of bribery and spent two years in jail. More recently, he pleaded guilty to tax fraud early last year and ostensibly promised the courts he would retire from public life in return for a lenient sentence.

The Supreme Court this week determined that it was “unreasonable” for a twice-convicted felon to serve as a cabinet minister and also that Mr. Deri had effectively misled the lower courts.

In their decision, the justices referred to Mr. Netanyahu’s powers as prime minister, writing: “Broad discretion does not mean unlimited discretion … even decisions concerning the appointment of ministers … are not immune from judicial review.”

Checks and balances

The Supreme Court’s independence and powers of judicial review are precisely what the Netanyahu government plans to curtail via legislation, including creating the ability to overrule the court’s decisions with a simple parliamentary majority and placing the judicial appointment process in the hands of the government.

“It’s hard to be more concerned,” says Professor Yaniv Roznai, a constitutional law expert at Reichman University, who calls the government’s proposed legislation “a terrible plan.”

“They will take away all the limits, like the courts and the ministerial legal advisers,” he says, “and then the government will have absolute power.”

The Israeli system of government lacks any effective checks and balances like a formal constitution, an upper house of parliament, a president with veto power, or a federal division of authorities, Professor Roznai notes.

“We have nothing, only one parliament controlled by the leadership of the coalition,” he adds. “It’s a blank check for the government.”

Legal and political analysts expect Prime Minister Netanyahu to uphold the court’s decision and fire Mr. Deri, although the case is expected to act as a catalyst for the broader judicial reforms already planned – which may now include, as a first order of business, trying to find a way to reappoint Mr. Deri as minister.

As one Shas parliamentarian put it prior to the verdict being announced, if the Supreme Court disqualified his party leader “it would be shooting itself in the head.”

Yet for Mr. Netanyahu and his far-right and religious allies, the stakes clearly go further than just Mr. Deri.

“There are people who ideologically never wanted a strong power like the Supreme Court and legal system as a whole to limit what they want to do,” says Dan Meridor, a former justice minister from Mr. Netanyahu’s own Likud party who has become an outspoken critic of the prime minister.

“They don’t want limits on the power of the government and the majority [even] when it infringes on minority rights,” including instances involving illegal settlement construction in the West Bank, LGBTQ rights, or gender equity.

For Mr. Netanyahu the judicial reforms appear more personal. Analysts are convinced that subsequent steps will include weakening the post of the attorney general, the country’s highest legal official, with an eye to halting Mr. Netanyahu’s ongoing corruption trial on charges of bribery and fraud.

“Netanyahu loves Israel ... but he loves himself more,” adds Mr. Meridor, who served under Mr. Netanyahu for several years, including as a deputy prime minister. “When it comes to a conflict, he would destroy the system if [he believes] the system is after him.”

For opposition, few tools

Current and former legal officials, opposition leaders, and much of the public view the judicial reforms as a majoritarian power grab that would fundamentally alter Israel’s democratic system.

Yet legal experts are unconvinced that there are genuine political or legal tools to stop the Netanyahu government, save perhaps for a major public outcry. Last Saturday night an estimated 80,000 people demonstrated in the cold and the rain in Tel Aviv, amid Israeli and LGBTQ and Palestinian flags.

“You didn’t get a mandate to destroy our democracy,” read one sign with Mr. Netanyahu’s visage.

An even larger set of demonstrations is planned for this coming weekend in Tel Aviv and other cities, and civil society groups have begun pushing for a general strike, an unprecedented step in Israeli Jewish politics.

Mr. Netanyahu for now appears unmoved and undaunted, declaring earlier this week: “Two months ago there was a huge demonstration in Israel, the mother of all demonstrations: Millions of people took to the streets to vote in the election. … We received a mandate – and we will carry it out!”

However opinion polls going back over a decade conducted by the Israel Democracy Institute, a nonpartisan think tank, show majority public support for the Supreme Court having the ability to strike down “undemocratic” laws.

And in the case of Aryeh Deri, one poll taken by Channel 12 News this month was even more clear-cut: 65% of the public was against Mr. Deri being appointed a minister and only 22% was supportive, with even voters from Mr. Netanyahu’s own right-wing camp split on the question.

If the government does choose to press ahead with Mr. Deri’s reappointment, along with its wider agenda to overhaul the judicial system, there may come a moment in the coming weeks where a “real showdown and a huge [constitutional] crisis” between the branches of government will occur, warns Professor Roznai.

“I really hope we don’t find ourselves in that situation,” but rather that the independence and power of the courts and the rule of law are upheld, he says.

Mr. Deri, for his part, has pinned his hopes on what he perceives as the will of the people and the parliamentary majority enjoyed by his ally Mr. Netanyahu.

“If the door is locked, we’ll come in through the window. If the window is shut, we’ll break through the roof,” he said late Wednesday in his first response to the Supreme Court ruling. “It is good the court has had its say and that this [is] all over. [Now] the nation will judge, and we’ll see what happens.”