ALL NATIONALISM IS FASCISM
Israel's Netanyahu facing off against the supreme court and proposing to limit judicial independence -- and 3 other threats to Israeli democracyBoaz Atzili, Associate Professor of International Relations,
American University School of International Service
THE CONVERSATION
Thu, January 19, 2023
Israelis protest the new government – the most far-right, religiously conservative in history – on Dec. 29, 2022, outside the Knesset, Israel's parliament.
Thu, January 19, 2023
Israelis protest the new government – the most far-right, religiously conservative in history – on Dec. 29, 2022, outside the Knesset, Israel's parliament.
Eyal Warshavsky/SOPA
Democracy is not just about holding elections. It is a set of institutions, ideas and practices that allow citizens a continuous, decisive voice in shaping their government and its policies.
The new Israeli government, headed by Benjamin Netanyahu and sworn in on Dec. 29, 2022, is a coalition of the most extreme right-wing and religious parties in the history of the state. This government presents a major threat to Israeli democracy, and it does so on multiple fronts.
That threat has not passed unnoticed. Tens of thousands of Israelis protested in Tel Aviv during the first weeks of January 2023 against the government’s proposed reform policies. Smaller demonstrations took place in other cities, and organizers promise to keep the heat on.
Perhaps the most important front in the battle is the Israeli Supreme Court. On Jan. 12, court President Esther Hayut gave a highly uncharacteristic public speech in which she warned that the Netanyahu government’s proposed reforms are “meant to be a mortal wound to the independence of the judiciary, and to turn it into a silent institution.”
The clash came to a head when, on Jan. 18, the justices ruled 10-1 against the appointment of Aryeh Deri as a senior minister in Netanyahu’s Cabinet because of what the court said was his “backlog of criminal convictions.” Deri, the leader of the ultra-Orthodox Shas Party, served time in jail, and the judges’ ruling said that he should not be in the government. The ruling means that Netanyahu will either face a coalition crisis or else find a way to circumvent the court’s ruling, which will place the government above the law.
The conflict between the Supreme Court and Netanyahu’s government illustrates one of the four ways that Israel’s democratic institutions, customs and practices are endangered by the new government. Here are those threats, based on policies and legislation that have been proposed or are already in process.
Democracy is not just about holding elections. It is a set of institutions, ideas and practices that allow citizens a continuous, decisive voice in shaping their government and its policies.
The new Israeli government, headed by Benjamin Netanyahu and sworn in on Dec. 29, 2022, is a coalition of the most extreme right-wing and religious parties in the history of the state. This government presents a major threat to Israeli democracy, and it does so on multiple fronts.
That threat has not passed unnoticed. Tens of thousands of Israelis protested in Tel Aviv during the first weeks of January 2023 against the government’s proposed reform policies. Smaller demonstrations took place in other cities, and organizers promise to keep the heat on.
Perhaps the most important front in the battle is the Israeli Supreme Court. On Jan. 12, court President Esther Hayut gave a highly uncharacteristic public speech in which she warned that the Netanyahu government’s proposed reforms are “meant to be a mortal wound to the independence of the judiciary, and to turn it into a silent institution.”
The clash came to a head when, on Jan. 18, the justices ruled 10-1 against the appointment of Aryeh Deri as a senior minister in Netanyahu’s Cabinet because of what the court said was his “backlog of criminal convictions.” Deri, the leader of the ultra-Orthodox Shas Party, served time in jail, and the judges’ ruling said that he should not be in the government. The ruling means that Netanyahu will either face a coalition crisis or else find a way to circumvent the court’s ruling, which will place the government above the law.
The conflict between the Supreme Court and Netanyahu’s government illustrates one of the four ways that Israel’s democratic institutions, customs and practices are endangered by the new government. Here are those threats, based on policies and legislation that have been proposed or are already in process.
1. Hostility to freedom of speech and dissent
Prime Minister Netanyahu has been working for years to consolidate his grip on Israeli media. The new government plans to accelerate the privatization of media in the hands of friendly interests and brand as anti-Israeli and treasonous media outlets its leaders deem hostile. The signs of this delegitimization are already here.
Ministers of Israel’s 37th government wait to have their group picture taken with the president and prime minister at the president’s residence in Jerusalem on Dec. 29, 2022. Photo by Gil Cohen-Magen/AFP via Getty Images
Even before the newly appointed minister of national security, Itamar Ben-Gvir, took office, the police briefly arrested and interrogated journalist Israel Frey after he posted a controversial tweet hinting that the Israeli military may be a legitimate target of Palestinian attacks. The police claimed the tweet incited terrorism, and the arrest showed journalists who favor an open and free press that they might face retaliation.
Ben-Gvir, the head of the Jewish Power party and now overseer of the police, was convicted in the past for supporting Jewish terrorism and for racist incitement against Israel’s Arab minority. In his inauguration speech on Jan. 1, the new minister branded “Jewish anarchists” – a code he often uses for leftists and human rights organizations – as threats that “needed to be dealt with.”
2. Diminishing equal rights
The Netanyahu government appears poised to allow discrimination against the LGBTQ community and women, thus undermining equality before the law, an important democratic principle.
Incoming National Missions Minister Orit Strock said in an interview in late December, “If a doctor is asked to give any type of treatment to someone that violates his religious faith, if there is another doctor who can do it, then you can’t force them to provide treatment.”
Netanyahu condemned Strock and other coalition members who stated that gay people could be denied service by businesses if serving them contradicts the business owner’s religious beliefs. Yet, journalists report that Likud and other coalition partners agreed in writing to amend the law against discrimination to allow exactly such a policy.
During early coalition negotiations, ultra-Orthodox parties demanded new legislation that would allow gender-based segregation in public spaces and events. Netanyahu has reportedly agreed, which means these laws are expected to pass the Knesset. Segregation in educational spheres, public transportation and public events is often translated into exclusion of women and weakening of women’s voices, and hence contradicts basic democratic principles such as freedom and equality.
3. West Bank annexation and apartheid
The new government’s intention to de facto annex the West Bank will turn hollow Israel’s claims of being the only democracy in the Middle East.
In a Dec. 28 tweet, Netanyahu announced that his government’s guidelines will include the principle that “the Jewish people have an exclusive and unquestionable right to all areas of the Land of Israel,” including the West Bank, occupied by Israel since 1967 and populated by a Palestinian majority.
These guidelines, combined with new nominations of far right politician Bezalel Smotrich as the minister responsible for Jewish settlements and Ben-Gvir as the minister in charge of the border police, could provide justification for annexation of the occupied Palestinian territories.
Based on much of the rhetoric of right-wing leaders such as Smotrich, Palestinian residents of these lands will have neither equal rights nor voting rights. This means apartheid, not democracy.
4. Erasing the separation of powers
In the Israeli system, the executive and legislative branches are always controlled by the same coalition. The courts are the only institution that can check the power of the ruling parties and uphold the country’s Basic Laws, which provide rights in the absence of a formal constitution.
But the new government wants to erase this separation of power and explicitly aims at weakening the courts. On Jan. 4, after less than a week in his role, new Minister of Justice Yariv Levin announced the government’s plan for a radical judicial reform, which will include the “override clause.” That clause will allow a simple majority in the Knesset to re-enact any law struck down by the Supreme Court as unconstitutional.
The new Israeli government plans to allow a simple majority in the Knesset to ignore any action by the Supreme Court to strike down a law as unconstitutional. Esther Hayut, pictured here, is the chief justice of the Supreme Court.
Thomas Coex/AFP via Getty Images
This would, in effect, remove all barriers placed upon the power of the majority. The coalition could legislate policies that are not only unconstitutional, but which clearly contradict ideas of human rights and equality that are enshrined in Israel’s Declaration of Independence.
The government’s plan also includes reforms that would allow the coalition to control nomination of judges. In a small country that does not have a strong constitution and in which there is no separation of power between the executive and legislature, this move, again, would weaken the authority of the court and make judges beholden to politicians.
These so-called reforms “threaten to destroy the entire constitutional structure of the State of Israel,” said Yair Lapid, head of the opposition and former prime minister.
This would, in effect, remove all barriers placed upon the power of the majority. The coalition could legislate policies that are not only unconstitutional, but which clearly contradict ideas of human rights and equality that are enshrined in Israel’s Declaration of Independence.
The government’s plan also includes reforms that would allow the coalition to control nomination of judges. In a small country that does not have a strong constitution and in which there is no separation of power between the executive and legislature, this move, again, would weaken the authority of the court and make judges beholden to politicians.
These so-called reforms “threaten to destroy the entire constitutional structure of the State of Israel,” said Yair Lapid, head of the opposition and former prime minister.
The danger of Netanyahu’s woes
All of these threats to Israeli democracy are more likely to materialize because of Netanyahu’s current personal problems.
Netanyahu is an experienced politician who in the past managed to quell the most extreme elements of his coalition partners, and his own Likud party, by paying them lip service while being more cautious on actual policies.
Many analysts do not believe this time will be the same.
The prime minister is facing corruption and fraud trials in three separate cases and is focused on protecting himself through whatever legislative and executive power he can muster. Netanyahu is beholden to his coalition for this task, which makes him vulnerable to their ultra-Orthodox agenda and demands for laws to perpetuate Jewish supremacy.
Any one of these changes present a serious democratic erosion. Together, they pose a clear danger to the existence of Israeli democracy.
Israel will continue to have elections in the future, but it’s an open question whether these will still be free and fair. With no judicial oversight, with constant disregard of human rights, with annexation of Palestinian lands and the disenfranchising of their people, and with a media that normalizes all of these processes, the answer is probably no.
As in Turkey, Hungary or even Russia, Israel could become a democracy in form only, devoid of all the ideas and institutions that underpin a government that is actually of the people and by the people.
This story has been updated to reflect the Israeli Supreme Court’s recent actions regarding the Netanyahu government.
This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts.
It was written by: Boaz Atzili, American University School of International Service.
Read more:
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Prosecuting a president is divisive and sometimes destabilizing – here’s why many countries do it anyway
Read more:
How Israel’s missing constitution deepens divisions between Jews and with Arabs
Israel’s new nation-state law restates the obvious
Prosecuting a president is divisive and sometimes destabilizing – here’s why many countries do it anyway
Top Israeli legal official tells Netanyahu to fire key ally
Israeli Prime Minister Benjamin Netanyahu, right, speaks with Interior and Health Minister Aryeh Deri at a weekly cabinet meeting at the Prime Minister's office in Jerusalem, Sunday, Jan. 8, 2023.
Israeli Prime Minister Benjamin Netanyahu, right, speaks with Interior and Health Minister Aryeh Deri at a weekly cabinet meeting at the Prime Minister's office in Jerusalem, Sunday, Jan. 8, 2023.
(Ronen Zvulun/Pool Photo via AP)
TIA GOLDENBERG
Thu, January 19, 2023
TEL AVIV, Israel (AP) — Israel's attorney general has told Prime Minister Benjamin Netanyahu he must fire a key Cabinet ally, in a letter made public Thursday, following a Supreme Court ruling that disqualified him from serving as a government minister.
The letter, sent shortly after Wednesday's court decision, compounds the pressure on Netanyahu to remove Aryeh Deri from the Cabinet and potentially destabilize his coalition government. The letter by Attorney General Gali Baharav-Miara is also likely to exacerbate a dispute over the power of the judicial system and the government's bid to overhaul it.
Israel's Supreme Court ruled that Deri, a longtime Netanyahu ally who leads the government's third-largest party, cannot serve as a Cabinet minister because of a conviction for tax offenses. The court said Netanyahu must fire him. Deri currently serves as Interior and Health Minister.
“You must act according to the ruling and remove him from his position in the government,” Baharav-Miara told Netanyahu in her letter.
It wasn't immediately clear whether Netanyahu would abide by the court ruling. But as the dust settled a bit Thursday, commentators said they expected Netanyahu to fire Deri and for the new government to somehow survive his absence.
But the court’s ruling only deepened the rift over Israel's justice system.
Netanyahu's ultranationalist and ultra-Orthodox government — the most right-wing in Israeli history -- has made overhauling the country's judiciary a centerpiece of its agenda. It says a power imbalance has given judges and government legal advisers too much sway over lawmaking and governance.
The government wants to weaken the Supreme Court, making it difficult for it to overturn laws it deems unconstitutional. If it somehow does manage to overturn laws, parliament could overrule the court's decision with 61 votes of the country's 120-seat parliament. It has also proposed giving the government more control over how judges are chosen as well as limiting the independence of government legal advisers and allowing lawmakers to ignore their counsel.
Critics say the plans will upend Israel's system of checks and balances, granting the government overwhelming power and stripping it of all judicial oversight. Fierce criticism against the plan has emerged from top legal officials, former lawmakers and government ministers as well as the country's booming tech sector. Tens of thousands of Israelis protested the plan last week, and another protest is expected on Saturday.
Bibi’s Rogue Minister Threatens to Plunge Israel Into Chaos
Noga Tarnopolsky
Thu, January 19, 2023
AMIR LEVY/Getty
Israel skid into constitutional limbo on Thursday as Prime Minister Benjamin Netanyahu declined for a second day to fire a top minister and key ally that Israel’s supreme court barred from holding high office.
On Wednesday, the Israeli Supreme Court ruled that Aryeh Deri, who is serving as Interior Minister and Minister of Health, was unfit to fulfill a ministerial role due to accumulated moral turpitude.
Deri “is a person who in his life has been convicted three times of offenses, and violated his duty to serve the public loyally and lawfully while serving in senior public positions,” wrote Supreme Court Chief Justice Esther Hayut, in response to a petition presented by the Movement for Quality Government in Israel. She added that Netanyahu could not ignore the “accumulation of serious corruption offenses."
Deri, 63, leads the right-wing religious Shas party that traditionally represents Sephardic Jews. He has been a dominant actor in Israeli political life, and in legal circles, for more than thirty years. But his appointment to senior government positions had been restricted by the “Deri Law,” which in 1993 established the court’s standing to order then-Prime Minister Yitzhak Rabin to fire Deri after he was indicted on criminal corruption charges.
“If Aryeh Deri is not fired, the Israeli government is breaking the law,” former Prime Minister Yair Lapid, the opposition leader, said in a video. “A government that does not obey the law is an illegal government…If Aryeh Deri is not fired, Israel will fall into an unprecedented constitutional crisis and will no longer be a democracy and will not be a state of law.”
Netanyahu’s ‘Big Lie’ Will End Rule of Law in Israel
In the early 2000s, Deri served almost three years in jail for corruption and bribery, and was barred from public office for seven years for moral turpitude. He was most recently convicted of tax evasion in January, 2022.
“Having Deri in charge of two of the most important ministries in the government damages the image and reputation of the country's legal system and contradicts the principles of ethical conduct and lawfulness,” Hayut wrote.
The ruling, which was expected, threatens the stability of Netanyahu’s coalition government in his third week back in office after an 18-month hiatus. On Tuesday, as the anticipated decision loomed, Shas legislator Avraham Bezalel warned that "if the Supreme Court rules that Ariyeh Deri is unfit to serve as minister they're shooting themselves in the head, they know where the public stands on this.”
Netanyahu has not commented on the decision, and affected nonchalance on Thursday, meeting with U.S. National Security Adviser Jake Sullivan and calling British Prime Minister Rishi Sunak.
Deri and his followers charge that he has been the lifelong victim of judicial over-persecution due to his ethnic origins as a Sephardic Jew born in Morocco. Speaking on Israel’s national broadcaster on Wednesday after the ruling was announced, Eliad Shraga—who argued for the Movement for Quality Government in Israel, dismissed the charges outright—saying, “Aryeh Machluf Deri is a recidivist crook!”
TIA GOLDENBERG
Thu, January 19, 2023
TEL AVIV, Israel (AP) — Israel's attorney general has told Prime Minister Benjamin Netanyahu he must fire a key Cabinet ally, in a letter made public Thursday, following a Supreme Court ruling that disqualified him from serving as a government minister.
The letter, sent shortly after Wednesday's court decision, compounds the pressure on Netanyahu to remove Aryeh Deri from the Cabinet and potentially destabilize his coalition government. The letter by Attorney General Gali Baharav-Miara is also likely to exacerbate a dispute over the power of the judicial system and the government's bid to overhaul it.
Israel's Supreme Court ruled that Deri, a longtime Netanyahu ally who leads the government's third-largest party, cannot serve as a Cabinet minister because of a conviction for tax offenses. The court said Netanyahu must fire him. Deri currently serves as Interior and Health Minister.
“You must act according to the ruling and remove him from his position in the government,” Baharav-Miara told Netanyahu in her letter.
It wasn't immediately clear whether Netanyahu would abide by the court ruling. But as the dust settled a bit Thursday, commentators said they expected Netanyahu to fire Deri and for the new government to somehow survive his absence.
But the court’s ruling only deepened the rift over Israel's justice system.
Netanyahu's ultranationalist and ultra-Orthodox government — the most right-wing in Israeli history -- has made overhauling the country's judiciary a centerpiece of its agenda. It says a power imbalance has given judges and government legal advisers too much sway over lawmaking and governance.
The government wants to weaken the Supreme Court, making it difficult for it to overturn laws it deems unconstitutional. If it somehow does manage to overturn laws, parliament could overrule the court's decision with 61 votes of the country's 120-seat parliament. It has also proposed giving the government more control over how judges are chosen as well as limiting the independence of government legal advisers and allowing lawmakers to ignore their counsel.
Critics say the plans will upend Israel's system of checks and balances, granting the government overwhelming power and stripping it of all judicial oversight. Fierce criticism against the plan has emerged from top legal officials, former lawmakers and government ministers as well as the country's booming tech sector. Tens of thousands of Israelis protested the plan last week, and another protest is expected on Saturday.
Bibi’s Rogue Minister Threatens to Plunge Israel Into Chaos
Noga Tarnopolsky
Thu, January 19, 2023
AMIR LEVY/Getty
Israel skid into constitutional limbo on Thursday as Prime Minister Benjamin Netanyahu declined for a second day to fire a top minister and key ally that Israel’s supreme court barred from holding high office.
On Wednesday, the Israeli Supreme Court ruled that Aryeh Deri, who is serving as Interior Minister and Minister of Health, was unfit to fulfill a ministerial role due to accumulated moral turpitude.
Deri “is a person who in his life has been convicted three times of offenses, and violated his duty to serve the public loyally and lawfully while serving in senior public positions,” wrote Supreme Court Chief Justice Esther Hayut, in response to a petition presented by the Movement for Quality Government in Israel. She added that Netanyahu could not ignore the “accumulation of serious corruption offenses."
Deri, 63, leads the right-wing religious Shas party that traditionally represents Sephardic Jews. He has been a dominant actor in Israeli political life, and in legal circles, for more than thirty years. But his appointment to senior government positions had been restricted by the “Deri Law,” which in 1993 established the court’s standing to order then-Prime Minister Yitzhak Rabin to fire Deri after he was indicted on criminal corruption charges.
“If Aryeh Deri is not fired, the Israeli government is breaking the law,” former Prime Minister Yair Lapid, the opposition leader, said in a video. “A government that does not obey the law is an illegal government…If Aryeh Deri is not fired, Israel will fall into an unprecedented constitutional crisis and will no longer be a democracy and will not be a state of law.”
Netanyahu’s ‘Big Lie’ Will End Rule of Law in Israel
In the early 2000s, Deri served almost three years in jail for corruption and bribery, and was barred from public office for seven years for moral turpitude. He was most recently convicted of tax evasion in January, 2022.
“Having Deri in charge of two of the most important ministries in the government damages the image and reputation of the country's legal system and contradicts the principles of ethical conduct and lawfulness,” Hayut wrote.
The ruling, which was expected, threatens the stability of Netanyahu’s coalition government in his third week back in office after an 18-month hiatus. On Tuesday, as the anticipated decision loomed, Shas legislator Avraham Bezalel warned that "if the Supreme Court rules that Ariyeh Deri is unfit to serve as minister they're shooting themselves in the head, they know where the public stands on this.”
Netanyahu has not commented on the decision, and affected nonchalance on Thursday, meeting with U.S. National Security Adviser Jake Sullivan and calling British Prime Minister Rishi Sunak.
Deri and his followers charge that he has been the lifelong victim of judicial over-persecution due to his ethnic origins as a Sephardic Jew born in Morocco. Speaking on Israel’s national broadcaster on Wednesday after the ruling was announced, Eliad Shraga—who argued for the Movement for Quality Government in Israel, dismissed the charges outright—saying, “Aryeh Machluf Deri is a recidivist crook!”
Shas’ newspaper announced the decision with a broadsheet headline reading
“THE SUPREME COURT VS THE PEOPLE OF ISRAEL.”
The court’s decision has fast-tracked a constitutional confrontation between Israel’s executive and its judiciary, which began to loom when Netanyahu announced a legislative blitz aimed at overhauling and diminishing the judiciary. The move was deemed “an all-out assault on Israel’s judicial system” and “a fatal blow to Israel’s democracy” by Hayut in a speech she delivered last week.
The proposed legislation includes a constitutional change allowing the Knesset, Israel’s parliament, to override supreme court decisions with a majority of 61 votes. But even such legislation, if rushed through, would be unlikely to have retroactive effect.
Netanyahu cannot take on Deri’s portfolios because he is, himself, on trial for bribery, fraud and breach of trust. He cannot fire Deri without risking his coalition of 64 out of 120 legislators. Shas could let Netanyahu off the hook by appointing other legislators to take over Deri’s roles, but the party is sticking by its leader. And Deri has made it clear he will not resign.
“He simply cannot be a minister,” said Professor Yaniv Roznai of Reichman University’s law school. “There is no way around this. The prime minister needs to remove him now.”
Assuming Deri is compelled to relinquish his positions, any legislation rushed through the Knesset with the aim of facilitating his return to the cabinet would face significant legal challenges.
Israeli Attorney General Gali Baharav-Miara has sent Netanyahu two letters, on Wednesday and on Thursday, informing him that Deri must “immediately” be fired. Only the prime minister has the authority to fire a minister.
Netanyahu calls his planned judicial revamp a “long-needed revision” of a judiciary that has run amok. He claims Israel’s judiciary, along with the media, form a cabal perpetrating a “judicial coup d’état” against him through the indictments, which were served in late 2019.
Critics call Netanyahu’s project an attempted power grab intended to effect “régime change” which will dismantle Israeli democracy.
Netanyahu’s office on Thursday floated the possibility of allowing Deri until Sunday to “consider his options.”
“There are no options,” Roznai said, responding to a question from The Daily Beast.
Attorney Yonatan Green, Executive Director of the conservative Israel Law and Liberty Forum, said the Deri case underscores the need for judicial reform. “We are in a very strange situation,” he told The Daily Beast, in an interview. “The government made a very senior appointment, the court does not argue that the appointment, itself, breaches the law, yet the court can tell the government whether an appointment is reasonable.”
Netanyahu formed an extremist hard-right coalition government with ultra-orthodox Jewish religious parties and with authoritarian nationalists after winning his most recent election in November. Itamar Ben Gvir, his new Minister for National Security, was previously convicted of hate crimes against Arabs and of associations with terror organizations.
Despite the victory, polls published since the government was established show that Netanyahu does not enjoy public support for upending the judiciary and only 20% of the Israeli public approves of Deri’s appointment as minister.
On Saturday, an estimated 100,000 Israelis protested against Netanyahu’s measures in Tel Aviv. Massive demonstrations are planned for this weekend in Tel Aviv, Haifa and Jerusalem.
There is no precedent under Israeli law for a prime minister refusing to comply with court rulings. The closest similar case occurred in March, 2020, when then-Knesset Speaker Yuli Edelstein, a close ally of Netanyahu, refused to hold a vote on his replacement as speaker after the supreme court ordered a vote be held. The crisis was resolved when the court deputized the longest-serving Knesset member to preside over the vote. It is unclear what the court could do if Netanyahu continues to ignore the ruling.
The Daily Beast
