I have a friend who says, in a variety of situations, tongue in cheek but with considerable wisdom:
“We knew it wasn’t going to be easy, but does it have to be this tough?”
Where our new government is concerned, no, it shouldn’t be. But it is, and we must deal with it, one aggravating problem at a time.
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Since there are multiple issues right now, I want to do triage and select one topic to focus on here, with more to follow very soon. (If I focused on multiple issues at once, it would give me a headache – as there is not much to say that is positive – and probably make your heads, collectively, swim.)
Today we return to judicial reform and related highly contentious matters. I have already touched upon this issue of judicial reform and provided legal arguments for it. You can see the posting here:
https://arlenefromisrael.info/from-israel-politicized-and-calculated-hysteria/
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In that posting, I referred to a major left-wing demonstration in Tel Aviv held on Saturday night, January 14th, against the government. It should come as no surprise that there was another one, even larger, again in Tel Aviv, against judicial reform, this past Saturday night, January 21st.
At the protest, Yair Lapid (Yesh Atid) declared: “We won’t give up until we win.”
Win? He’s a bit dense. Will someone please explain to him that the election was held already, and his side, the left, lost. This continues to sound uncomfortably like insurrection.
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I had been thinking about an example of the Supreme Court over-stepping its legitimate bounds, when a situation arose that demonstrates it with great clarity.
Last Wednesday, the High Court of Justice, responding to multiple petitions, ruled – by a vote of 10 to 1 -– that MK Aryeh Deri, chair of Shas, could not hold the positions of minister of the interior and minister of health, positions to which he had been appointed by Netanyahu in coalition negotiations.
https://www.jpost.com/israel-news/article-728898
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In announcing its ruling the Court drew upon the “Reasonableness Clause.” This was not a matter of law – an all-important point. The justices had determined that what the Knesset had done in placing Deri in his positions was simply “unreasonable.” But granting Deri these positions was something for the Knesset and the governing coalition to determine. Anything can be declared “unreasonable,” and thus overturned, if points of law need not be invoked. This gives the Court excessive power.
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The background on this situation: Deri is serving a suspended sentence for tax offenses. “Basic Law: The Government” prohibited someone who had been convicted of such offenses from serving in a ministerial role. In December, the Knesset added an amendment to the Basic Law that said if the convicted individual never served prison time for this conviction – which was the case with Deri – he would not be prohibited from serving in the government. This cleared the way for Deri to hold ministerial positions.
It was in the Knesset’s right to pass this legislation and the Court has no jurisdiction to rule on that law. And in due fact, the Court did not – although the petitions to the Court had sought review of the legislation. The law stands. All the Court had jurisdiction to do was to rule if a specific action was in contradiction with the law. But this was not the position of the Court. It simply said making Deri a minister was “unreasonable.”
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When he received that suspended sentence – which came as part of a plea bargain requiring a fine – Deri withdrew from politics. The Court maintained that he made a commitment never to return. Deri is adamant that he never said this and intended no such thing.
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A political firestorm erupted when the Court ruling was announced. Deri said that the 400,000 people who voted for him were disenfranchised by this ruling.
There were, as well, suggestions that the Court was biased (not exactly a surprise to many of us), that the ruling was influenced by Deri’s right-wing political stance. It has been pointed out – e.g., by Ben-Dror Yemini – that when there have been challenges regarding the suitability of an (anti-Zionist) Arab Israeli to sit in the Knesset the Court has “bent over backwards” in efforts to not disqualify him.
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Said Professor Eugene Kontorovich, director of international law at the Kohelet Policy Forum:
The ruling proves that the Supreme Court “seeks to exercise power over every aspect of Israeli life, even the outcome of elections.
“That the Supreme Court can dismantle an elected coalition based not on the law, but on its own notions of propriety, powerfully illustrates the need for urgent reform.”
Kontorovich additionally had comments regarding the behavior of Court President Esther Hayut, one of the 10 who voted to remove Deri from office. The week prior she had publicly attacked Justice Minister Yariv Levin for his proposals to reform the Court. This was an unprecedented attack against a ruling coalition that was “horrific” and “dangerous,” said Kontorovich. Of all the attacks against the movement for reform, he said that the “most dangerous rhetoric” came from Hayut herself.
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And so, more than ever, it is clearly understood within the government that judicial reform is urgently needed. Levin will be moving on this with alacrity.
Additionally, Simcha Rothman (RZP), Chair of the Constitution, Law and Justice Committee, has announced that he is advancing his own judicial reform bill that would make it even more difficult than Levin’s bill for the Court to overturn legislation.
We will be watching this closely.
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After the Court ruling, there were a good number of predictions and propositions. Some suggested that Netanyahu not honor the ruling, which would have been a mistake. And there were threats (foolish) from members of Shas that if Deri were removed they would leave the government.
In the end, and properly so, today at the Cabinet meeting, the prime minister did relieve Deri of his ministerial responsibilities.
In a statement he read at the Cabinet meeting, he said:
“I intend to look for any legal way in which you can continue to contribute to the State of Israel from your many experiences and skills, in accordance with the will of the people. It is with a heavy heart, with great sorrow, and with an extremely difficult feeling that we are forced to transfer you from your position as a minister in the government…”
This undoubtedly offered reassurance to Deri that he would be supported. Netanyahu had gone to see him after the Court ruling and I would assume plans are in the works, at least tentatively, for what will come next.
Deri, for his part, said:
“…I hear in your voice the sadness over the court’s decision and its consequences…
“I have an iron commitment to the 400,000 people who voted for me and the Shas. No judicial decision will prevent me from serving them and representing them.
“I intend to continue to contribute with all my might to the public and the coalition, I intend to continue to lead the Shas movement, to continue to participate in the meeting of the leaders of the coalition factions and to help promote the important legal moves that this government was elected to promote to strengthen and strengthen the governance, and to preserve the Jewish identity of the State of Israel…”
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Deri is still in the Knesset. As Shas still controls the ministries Deri had briefly headed, from behind the scenes he will clearly have very significant influence. (He has been given high marks in his capacity to serve effectively as a minister.) It remains to be seen who will assume the positions he has vacated. It is certainly within the realm of possibility that Deri will return to ministerial positions after judicial reforms have been enacted.
And in the meantime, there is much discussion about what non-ministerial positions might be offered to Deri by Netanyahu.
This is, as is often the case when I write, a dynamic situation.
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After the Cabinet meeting, the heads of the factions of the coalition met in Netanyahu’s office, as they do weekly. The message that was released was that “All party heads were present at the meeting, and it took place in a pleasant and warm atmosphere.”
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© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.
