The question, “Is Israel facing a constitutional crisis?” echoed across the country’s airwaves this week.
Arguably, the crisis has existed for a long time – from the days of the 2021 government’s judicial reform proposals and the resulting mass demonstrations, and even further back. There’s a reason, after all, that the reform was raised.
Perhaps Israel is not so much facing a constitutional crisis as facing elections, which must be held by October 27. Political camps need battle cries. On the Left, there are slogans about the end of democracy; on the Right, fears that a juristocracy has taken control, making it impossible for the elected government to rule.
This week’s trigger unexpectedly centered on the decision regarding the Second Authority for Television and Radio regulatory body that oversees commercial broadcasting, which was handling an attempt to buy the relatively small Channel 13.
Due to a wave of resignations when a new council was approved by the government in March, the Second Authority was left without the quorum needed to authorize a buy-out. The government maintains that without the quorum, the Second Authority could not legally approve a purchase (whose backers, not coincidentally, are considered to oppose the Netanyahu government).
Last month, the High Court ruled that the Second Authority can continue to function even without the 10-member quorum, and without the voices of the outgoing members, while it hears the challenges to the new appointments.
Communications Minister Shlomo Karhi and Justice Minister Yariv Levin spearheaded a resolution on Sunday that the government would not recognize the actions of the Second Authority’s old council (without the legally required number of members) despite the High Court’s approval.
Criticism of the government’s resolution was voiced by President Isaac Herzog, embattled Attorney-General Gali Baharav-Miara, and a slew of party leaders from the opposition.
Former and wannabe prime minister Naftali Bennett, who heads the Together joint list with former premier Yair Lapid, issued a statement saying non-compliance with the court would lead to “anarchy in the streets and to the collapse of our state,” adding: “Soon we will fix everything. There will be one law for everyone.”
At the annual Israel Hayom conference on Sunday, Levin said: “With all due respect, the Supreme Court is not above the other two authorities, above the Knesset and above the government. It is equal to them. This is the essence of democracy.”
Trying to avert the crisis, or at least ameliorate it, Cabinet Secretary Yossi Fuchs posted on X/Twitter: “Contrary to reports, there is no word in the statement that calls for non-compliance with the High Court of Justice ruling but rather sharp criticism of a ruling that contradicts the explicit language of the law; the government stated that it will act with all the legal tools at its disposal to annul the decision in the future. How do legal tools become non-compliance with the ruling?”
The crisis, of course, goes way beyond the fate of Channel 13 or the status of pro-Bibi Netanyahu Channel 14, which opposition members threaten to close if elected. It hits at the heart of a dilemma that has been dividing Israel for years. Who ultimately rules the country: the courts or the government?
Since the judicial activism of former Supreme Court head Aharon Barak in the 1990s, the rhetoric has grown stronger but the answer less clear. Barak’s guiding principle was “Hakol shafit,” everything is justiciable. This enabled the courts to assume more power to overturn laws passed by the Knesset.
As a result, the Supreme Court has become involved in decisions which are essentially political ones. It was on Barak’s watch that the Knesset in 1992 enacted two Basic Laws that the courts consider to be a version of a constitution.
Among the hundreds of thousands of demonstrators who took to the streets in the first few months of 2023, rhythmically chanting “Demo-crat-ia,” many if not the vast majority fought against the government’s plans to amend the so-called Reasonability Clause – the clause that allowed judges to strike down a law, government appointment, and pretty much whatever else they saw fit not on the basis of legal facts and precedents but on a subjective, value-laden interpretation of what they judged to be “reasonable.”
There is little doubt that Israel’s enemies perceived Israel to have been severely weakened by the civil unrest – and threats of civil war – ahead of the October 7, 2023, Hamas mega-atrocity and subsequent war on seven fronts. When reservists threaten not to serve, the message is picked up by ayatollahs in Tehran and not just ministers in Jerusalem.
The shock of the brutal invasion and war brought Israelis together, but the politics did not disappear. Neither did the judicial intervention. Just last week, the High Court determined that the four most significant sections of the report into October 7 drawn up by outgoing State Comptroller Matanayahu Englman could not be published; separately, the court ordered a revote by the Knesset of his elected replacement, Michael Rabello, as some MKs recorded themselves despite it being a secret ballot.
Balance between majority and minority
It is at once both the most normal and abnormal phenomenon that Israel is arguing about domestic politics, while still embroiled in a war spreading from Iran to Gaza and Lebanon.
Last week, headlines focused on Netanyahu’s ongoing trial. The judges, for the second time in three years, called for the state prosecutor to drop the bribery charge in Case 4000, the most serious charge of the three cases that the prime minister is facing. In Case 4000, the so-called Walla-Bezeq Affair, Netanyahu is accused of granting regulatory favors to Shaul Elovitch, the former chairman of the telecommunications giant, in return for positive coverage on the Walla website that he also owned.
The claims of “positive coverage” were later changed to allegations of “unusually favorable and responsive treatment,” although it was hard to see evidence that the news site treated Bibi unusually favorably (or even minimally favorably).
The name most frequently raised in the current talk of a judicial-constitutional crisis is Baharav-Miara. Members of this government aren’t the first to propose that the roles of attorney-general and state prosecutor should be split, but Baharav-Miara has provided them with more ammunition.
In several key cases, rather than defending the government that she is meant to advise, she has advocated prosecuting it. Although a government appointee and public employee, she has also refused to resign even though she clearly cannot work with her current boss, Netanyahu.
Several of her decisions have been overruled by the courts, most recently her attempts to prevent the appointment of Roman Goffman as head of Mossad (replacing David Barnea) and David Zini as Shin Bet (Israel Security Agency) head, replacing Ronen Bar, who had been the service’s head on October 7, 2023. Bar, like Baharav-Miara, initially refused to be fired.
The attorney-general even made an attempt to keep Bar on via the courts after he agreed to resign, making the courts play devil’s advocate in a case it did not want, and Bar hadn’t asked for.
The heads of the Mossad and the Shin Bet are not meant to appoint their successors, although they can make recommendations, and the courts and attorney-general aren’t meant to have the last word in determining who holds those sensitive positions. Add to that the situation in which the judges want to appoint themselves, leading to the absurd situation in which Justice Minister Levin refuses to recognize Yitzhak Amit as head of the Supreme Court.
It’s easy to see why the country is in such a mess – and not so easy to see how to get out of it. The country can’t function when the elected government tries to take it in one direction, and the unelected and unimpeachable courts push it in the other. There needs to be a balance between protecting the rights of minorities and the right of majority rule. The politicians and the justice establishment need to step back and lower the flames.
No government will be able to govern if every decision is overruled by the courts and citizens lose faith in the courts if they are perceived to be acting out of political convictions.
Israel’s democracy is not in danger – but neither the judiciary nor the political establishment can be a law to themselves.