by Alex Traiman
While the Israeli left has had no choice but to concede the government to a voter base shifting to the right, it is unprepared and unwilling to give up control of state institutions.
In “A crisis of judicial proportions explained, Part I: Reforming the court,” we explored
the reasons Israel’s new government put advancing judicial reform at
the forefront of its right-wing policy agenda. Here in Part II, we
explore the underlying tensions behind the opposition to judicial
reform.
Five elections in three years
Israelis were forced to go to the polls five times in the last three
and a half years. Each of the elections was essentially a referendum on
whether embattled Prime Minister Benjamin Netanyahu was fit to continue
serving, after 15 years in office—12 of them consecutive.
Each of the elections was stained with announcements that Netanyahu
was being investigated for corruption, then about-to-be indicted for
corruption, then indicted, and then brought to trial. Cherry-picked
details of the cases were illegally leaked to the press throughout the
election cycles, without repercussions.
‘Crime Minister’ protests
Toward the middle of the election cycles,
anti-Netanyahu protests began to emerge outside the Prime Minister’s
Residence in Jerusalem, and elsewhere. When the pandemic took the world
by storm, Israel—under Netanyahu’s leadership—enforced overly strict
lockdowns, for a period preventing individuals from traveling more than
500 meters from their house.
For several weeks, Israelis could basically go to one of two places:
to buy essential goods, including food from supermarkets and hardware
stores; or to the anti-Netanyahu protests, which were protected by law.
The protest movements featured expensive printed signage, stages and
sound systems. Slogans changed from week to week, with focus testing
used to determine which would galvanize the most support. Some protests
were themed “De-mo-cra-cy.” The slogan that stuck was “Crime Minister.”
Many of the first protesters against judicial reform over the past
month, and certainly the political leaders and agitators at the
forefront, were present at the anti-Netanyahu protests during the
election cycles.
Flimsy corruption charges
The cases against Netanyahu are considered by many on the right to be
a classic example of prosecutorial overreach and the further
politicization of the judicial branch. The alleged crimes would not
carry weight in American courts. One case involves Netanyahu’s receipt
of gifts—most notably cigars, champagne and suits—cumulatively totaling
over $270,000, over a period of more than 10 years. This is considered
the least severe of the charges.
The second and third cases involve Netanyahu seeking favorable media
coverage in exchange for regulatory favors. The problem with these
charges is that politicians and publishers routinely trade favorable
media coverage for political favors—including regulatory or legislative
favors. No leader in a democratic country has ever been charged with
bribery for such an exchange.
Furthermore, in one of the cases, the prosecution openly acknowledges
that the quid pro quo discussed between Netanyahu and the publisher
never actually took place. Yet in Israel, a bribery charge can be
leveled even if a bribe never actualizes.
Moreover, the evidence against Netanyahu was discovered during an
elaborate fishing expedition whereby members of Netanyahu’s inner circle
were investigated and only then were the alleged crimes
discovered—evidence that would be inadmissible in American courts.
State witnesses have claimed they were blackmailed by prosecutors.
Once the trial started, the court forced the prosecution to amend its
charge sheet three times. Each such incident would have constituted a
mistrial in American court. The prosecution listed 300 potential
witnesses, ensuring that regardless of the verdicts, the cases would be
tried over a period lasting several years, enabling the media to
continuously state that Netanyahu was on trial for corruption.
The ‘change’ government
The constant protests, ongoing criminal proceedings and pounding by a
predominantly left-wing media had a significant political impact. With
each election cycle, new defectors from among Netanyahu’s longtime
right-wing allies joined the opposition in hopes of permanently removing
Netanyahu from office.
Three elections ended in deadlocks, with Netanyahu just a few seats
shy of forming a right-wing government. Yet the opposition, comprising
primarily left-wing parties, Arab parties and right-wing defectors was
similarly unable to form a blocking coalition. After the third
election—and spurred by one of the worst examples of judicial overreach,
in which the court forced Knesset Speaker Yuli Edelstein to resign so
the opposition could advance bills that would retroactively invalidate
Netanyahu from serving—Netanyahu and challenger Benny Gantz formed an
emergency unity government to prevent the bills, end the consecutive
election cycles and deal with the onset of the COVID crisis.
The Netanyahu-Gantz unity alliance lasted barely a year.
After a fourth election, the opposition finally managed to cobble
together a blocking government. It consisted of every member of Israel’s
left wing, and a self-proclaimed anti-Zionist party, Ra’am, which is
affiliated with the Southern Chapter of the Muslim Brotherhood. To form
the government, the left, led by Yesh Atid Party leader Yair Lapid,
needed to lure additional defectors from Netanyahu’s right-wing bloc. To
do so, Lapid offered right-wing party leader Naftali Bennett the only
seat he could offer him to get him to join such a coalition: the
premiership.
Abuse of democracy
Bennett had stated in campaign interviews that it would be
undemocratic for a party leader to become prime minister with fewer than
10 mandates. He had also signed a written pledge on live television
that he would not sign a rotation agreement with Lapid, as “he was right
and Lapid was left.” He lied. Essentially, 95 percent of the country
voted for someone other than Bennett, but that didn’t matter to an
opposition willing to take Netanyahu out by any means necessary.
In one of the worst abuses in Israeli democracy to date, Lapid used a
presidential mandate to form a government that he himself could not,
and essentially crowned Bennett prime minister, though his right-wing
Yamina Party had won only seven of the Knesset’s 120 seats.
Bennett and Lapid signed a rotation arrangement, and for the first
time in 12 years, Netanyahu was no longer prime minister. The campaign
to oust Netanyahu had finally succeeded.
Despite being knocked out of the prime minister’s residence,
Netanyahu refused to resign. He opted instead to become head of the
opposition and vowed to collapse the “change” government.
The new ruling parties were united ideologically only by their desire
to keep Netanyahu out of office. It wasn’t enough. Barely a year to the
day after forming the government, Bennett resigned, as members of his
own party refused to continue voting with a coalition that they
perceived as overly left-wing, even with their own party leader at the
helm.
Netanyahu’s return
In the fifth election, right-wing voters flocked to the polls.
Together, they demanded an end to the non-stop election madness. They
rejected the opposition’s attempts to block Netanyahu’s return,
prosecutorial overreach, incessant media bias and a parliamentary
putsch. With their votes, they demanded that the candidate who had
consistently received the most electoral support throughout five
consecutive elections actually form a government. And they would send
every last one of Netanyahu’s opponents into the opposition.
In particular, voters punished the right-wing defectors who
previously campaigned for their votes only to gift them to a
predominantly left-wing opposition. Likud defectors including Gideon
Sa’ar were forced to fold their nascent New Hope Party into Benny
Gantz’s left-wing National Unity Party. Bennett, who had completely
spurned his voter base, did not even bother to run. Bennett’s longtime
colleague Ayelet Shaked and the remainder of the Yamina Party failed to
cross the minimum electoral threshold.
Netanyahu and his remaining loyal right-wing coalition partners scored a stunning victory.
Netanyahu’s opponents suggest that the popular vote between
pro-Netanyahu and anti-Netanyahu voters was much closer to 50-50. The
spin is that they combine the left-wing and Arab blocs into one. But
there aren’t two blocs in Israel. There are three; right-wing, left-wing
and Arab.
The seat breakdown represents a right-wing landslide. The right won
64 seats, the left 46—an 18-seat gap. Arab parties collected 10 seats.
Sixty-four Knesset members recommended Netanyahu as premier. By
contrast, only 28 members nominated challenger and now head of the
opposition Yair Lapid.
Full right-wing government
In Netanyahu’s 15 years in office, he had almost always formed
governments including both right- and left-wing parties, essentially
governing from the political center. This time, following the fifth
election, parties that had consistently campaigned on an “anybody but
Netanyahu” platform refused to sit with their political nemesis.
For the first time, Netanyahu was able to (and for that matter forced
to) form a full-fledged right-wing government with the religious and
nationalist parties. Not only had Netanyahu returned to power against
the will of the opposition, the prosecution and the media, he now had a
full right-wing government, no longer bound by the constraints of
left-wing coalition partners.
Anti-progressive, not anti-democratic
For Netanyahu’s right-wing allies, the victory represented a
first-time-in-a-generation opportunity to finally advance fully
right-wing and religious-friendly policies without political obstacles,
and to roll back some of the progressive policies advanced while Bennett
and Lapid were briefly in office.
The Netanyahu government is without question anti-progressive. Yet
progressives who now claim to be the flag bearers of democracy are thus
claiming the government is anti-democratic.
The rise of Itamar Ben-Gvir
They are also claiming that the government is extremist. This despite
the fact that most of the parties in the government are coalition
mainstays.
One of the biggest surprises in the fifth election cycle has been the
rise of the staunchly nationalist Otzma Yehudit (Jewish Strength)
Party, led by political firebrand Itamar Ben-Gvir.
Ben-Gvir is a former disciple of then-banned MK Meir Kahana, who was
accused of promoting Jewish terrorism. Ben-Gvir claims to have tempered
his ideology and has served for years as a successful civil rights
attorney, even trying and winning cases in Israel’s Supreme Court.
Ben-Gvir ran on a platform of restoring law and order. This included
promises to restore personal safety for Jews living in Judea and
Samaria, increase the number of civilian gun permits and clamp down on
Bedouin crime in Israel’s Negev desert, where Bedouin routinely settle
illegally, and run mafia-style protection rings aimed at extorting cash
from local Jewish businesses.
Otzma Yehudit ran on a joint ticket with the Religious Zionist Party
led by Bezalel Smotrich, who had served as transportation minister in
Netanyahu’s previous government without much fanfare. The joint ticket
was brokered by Netanyahu, who wanted to ensure that right-wing votes
did not splinter. The joint party scored a major right-wing victory with
14 seats, making it the third-largest party in the government.
From the moment the election results were announced, Smotrich
demanded to be named defense minister and Ben-Gvir demanded to be named
National Security Minister, in charge of the police department.
U.S. intervention
The United States was insistent that Netanyahu name a moderate
defense minister with significant military credentials, and also
cautioned against appointing Ben-Gvir National Security Minister.
Netanyahu succeeded in pivoting Smotrich to the post of Finance
Minister, and instead named Likud Party member and former candidate for
IDF Chief of Staff Yoav Gallant as defense minister.
Ben-Gvir, on the other hand, had too much leverage and so was named
national security minister, to the dismay of the United States. U.S.
officials have been completely boycotting Smotrich and Ben-Gvir,
refusing to meet with them in Israel or in Washington.
The U.S. boycott has carried over to many mainstream Jewish
organizations, which have similarly refused to meet with them.
Meanwhile, the media are magnifying each of their statements to inflame
tensions and public views of the pair as extremists.
The religious parties
Left-wingers claim to resent the religious parties on the basis of
army exemptions for eligible men, who opt instead to study in
state-funded institutions (some of which are accused of not enforcing
rigorous attendance and excellence standards), and control over national
religious institutions that refuse to adapt to progressive trends.
Several left-wing parties campaign on platforms aimed at reducing
religious influence.
Yet, the left would gladly sit with the religious parties if only they were willing to defect from Netanyahu’s right-wing bloc.
Meanwhile, Aryeh Deri, the head of Shas (a Sephardic religious party)
has twice been convicted of corruption and forced to resign his posts.
He is back to leading the party after a suspended sentence permitted him
to avoid jail time.
Netanyahu appointed Deri head of the interior and health ministries.
Yet the Supreme Court ruled that it was “unreasonable” for Deri to serve
in these posts due to his convictions, even though the law states
explicitly that one cannot serve as minister only if one is sentenced to
prison.
The coalition had sought to effectively reverse the court’s decision
with legislation aimed at making the law more explicit, and in
forbidding the court to intervene in the premier’s appointments as
members of his cabinet.
The so-called Deri Law, along with other suggested legislation that
would allow ministers to accept certain gifts, are furthering opposition
claims that Netanyahu and company are legislating for their own
benefit.
Alternate visions
The policy gaps between Israel’s right and left are fueled by competing visions of what Israel is meant to be.
Generally speaking, the right views Israel as a unique nation that
stands alone, the world’s only Jewish state, that must protect Jewish
traditions and nationalist ideology against foreign influences; that
should provide adequate funding to Torah institutions; that supports
Jewish rights to live and develop vibrant communities in the disputed
biblical territories of Judea and Samaria; that opposes the creation of a
Palestinian state likely to morph into a copy-cat version of failed
enemy states such as Lebanon and Syria.
By contrast, the left views Israel as a progressive, modern democracy
that is culturally Jewish on the basis of its Hebrew language and
“Israeliness,” but predominantly secular.
Uncomfortable with Jewish nationalism, left-wingers see Israel as a
liberal extension of Western Europe on the Eastern Mediterranean. They
are the driving force behind much of Israel’s hi-tech startup scene. And
many would prefer the creation of a Palestinian state in Judea and
Samaria (commonly referred to in the international community as the West
Bank), in an attempt to rebuff claims of occupation.
Demography, not democracy
For Netanyahu’s left-wing opponents, their stunning electoral defeat represents a deeper and worrying demographic turning point.
Religious and traditional right-wing voters typically have more
children than secular left-wing voters, a trend that is not likely to
change in the years to come. And for the first time, right-wing voters
out-totaled left-wing and Arab voters combined to form an exclusively
right-wing government.
While the right is now free to implement the policies it has long
sought to, the left fears that if the right governs successfully, it may
be in power for many years to come, leaving the left glued to the
backbenches of the Knesset opposition.
Right-wing policy outline
The Israeli right seeks to continue building housing and
infrastructure for growing Jewish communities in Judea and Samaria. They
insist on personal security for Israeli citizens in the face of growing
terrorism. They prefer to isolate the Palestinian Authority, and reject
the prospect of negotiations.
On complex and controversial religion-and-state issues, they seek to
preserve the integrity of religious institutions and long-held norms,
including a ban on public transportation on Shabbat. For Netanyahu in
particular, neutralizing Iran’s nuclear infrastructure is a primary
objective.
In order to advance their agenda, they first seek to strike a new
balance of power between the government and the judicial branch of
government.
The right asserts that the court for years has consistently meddled
in governmental affairs. They claim the court is a self-selecting, elite
left-wing oligarchy that has effectively served as a check on
right-wing policies.
The left asserts that the court must remain the protector of
democracy and through its rulings maintain governmental checks and
balances in the absence of a constitution.
The right is effectively calling the court’s bluff.
Historical turning point
Historically, for the first 30 years of the state’s existence, until
the election of Menachem Begin in 1977, the left controlled the
government. In those three decades, they established all of the state’s
major institutions. And while the right has been the principal force in
the government over the last 30 years, the major institutions, including
the judicial system, top echelons of the military, labor union,
academia, medical establishment and the media remain dominated by the
left.
While the left has had no choice but to concede the government to a
shifting voter base that favors right-wing policies, the left is
unprepared and unwilling to give up on its control of state
institutions.
And as Netanyahu, his allies and his voters are learning, those
institutions are not only extremely powerful, but together, can be
significantly more powerful than the government.
It is this complex web of political developments over the past four
years that immediately preceded, and hangs as a dark cloud over the
rollout of judicial reform legislation.
Note: Part III will delve into the anatomy of the protest
movement, and the sequence of events that nearly led Israel to a
breaking point.
Alex Traiman is CEO and Jerusalem Bureau Chief of JNS.
Source: https://www.jns.org/opinion/a-crisis-of-judicial-proportions-explained-part-ii-precursors-to-the-protest/
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