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A Note from Michal Sella: New Elections, New Assaults on the Judiciary
Analysis from Michal Sella, Director of the Shatil Center for Policy Change
There is one obvious advantage to holding two elections consecutively within the span of months. The second time around, everyone knows what the candidates real intentions are.
At the end of the last election campaign, two weeks before the final tally of the 2019 election, Prime Minister Netanyahu went on live television and said he would not try to gain immunity from the corruption charges against him. But the moment the elections were won–he did.
In his effort to form a coalition, the only rule he laid down was that all coalition members commit to passing an amendment that would give him a clear path to immunity and prevent the High Court from overruling that decision. The override clause at the center of these negotiations was revolutionary: it was explicitly designed to overturn the power of judicial review over Knesset legislation and decisions, critically weakening the independence of the judiciary. This is a fatal blow to any democracy — and the familiar mark of creeping authoritarianism. Netanyahu sought this extreme measure (though he had himself spoken out against such a measure for years), a measure that meant causing irreparable harm to Israel’s democratic system, for one reason: to avoid standing trial–in other words, to save his own skin.
But as fate would have it, Yisrael Beiteinu chairman Avigdor Lieberman refused to join the new coalition, and Netanyahu decided to dissolve the Knesset and hold new elections, rather than face the prospect of a competitor forming a coalition in his stead. This time around it’s clear to all that Netanyahu and his partners have their sights set on the powers of the High Court.
Now, Prime Minister Netanyahu has begun a series of appointments for the transitional government, valid only for few months, until the September 17 elections and the next government is formed. Netanyahu was looking for a justice minister who would deliver a compliant judiciary. And he eventually found one.
But before he did, the Union of Right-Wing Parties’ MK Bezalel Smotrich (a self-declared “proud homophobe” who in 2006 organized a “beast parade” in protest of the LGBT Pride Parade and who suggested segregating maternity wards in Israeli hospitals between Jewish and Arab mothers) demanded the Justice Ministry for himself. But Netanyahu did not entrust this power to Smotrich. “The next justice minister will hold the key to the legal fate of the prime minister and his family, so there is no chance that you will receive this key. Forget it,” said Natan Eshel, a close confidant to the Netanayhau family.
Instead, MK Amir Ohana, a member of the Knesset from the Likud’s back benches, was appointed to the interim position. In his first speech as Justice Minister, addressing the Israeli Bar Association, Ohana characterized the judiciary as “the least democratic” of the country’s three branches of government in Israel because judges are not directly elected by the people. In his first interview, the official now in charge of Israel’s entire justice system said: “not every [Court] ruling needs to be enforced, just as not every law needs to be enforced.”
In response to his comment, the Chief Justice of the High Court, Esther Hayut, offered an uncharacteristically public response: “The path is short between such a worldview and the anarchy of ‘every man doing that which is right in his own eyes’,” she said referring to a biblical passage in the Book of Judges. When the Justice Minister suggests that not all decisions of the High Court of Justice must be followed, it is not hard to imagine that the challenges that justice system has faced so far are likely to escalate in the lead-up to elections in September.
This time, however, Netanyahu will no longer be able to credibly say what he said last time: that he will not try to subvert the judiciary to save his skin. We’ve already seen him try.
We now know that in the months ahead, Netanyahu and his ministers will raise doubts about the integrity of the judicial system and the High Court. In fact, that’s already on display. In response to the conviction of his wife, Sara Netanyahu, in a plea bargain over her misuse of public funds, the Prime Minister sounded a familiar theme. Echoing his earlier heated attacks on the judiciary in connection to his legal battles earlier this year, Netanyahu blasted the prosecution of his wife as a politically-motivated “witch hunt.”
Needless to say, we now know the direct connection that exists between loose talk undermining the legitimacy of the judicial branch and the actual laying of the groundwork for policies that can do so. This is not just election-time rhetoric. The rule of law and Israel’s legal institutions rest in the hands of the next government. We already know the stakes.
What Happened This Week.
- Likud MK Amir Ohana was appointed Minister of Justice this week. This is noteworthy for two reasons: First, Ohana is the first openly gay member of Knesset to serve as a minister. Second, he openly attacked the legitimacy of the High Court of Justice. Ohana remarked that that not every court ruling should be enforced by the government.
- Sara Netanyahu, wife of Prime Minister Benjamin Netanyahu, was convicted of criminal misconduct. Last week, in a plea bargain, Sara Netanyahu was convicted of misuse of public funds. Sara Netanyahu admitted to the charges levied against her. She spent $99,300 (NIS 175,000) on outside catering while falsely claiming that there were no cooks available at the Prime Minister’s residence. Similar to the way in which Netanyahu attacked the judiciary in connection to his own indictments, he attacked the justice system on his wife’s behalf, using the familiar phrase of a “witch hunt” to label her prosecution It is safe to assume that the assault on the legitimacy of Israel’s judiciary will continue.
- The White House unveiled the “economic aspects” of its Middle East Plan. The Trump administration released a 38-page document detailing the “economic aspects” of its Middle East Plan. Largely a compilation of past recommendations for improvements in the Palestinian economy, the plan was harshly criticized for failing to address the political aspirations of Palestinians, and for proposing $50 billion of investment and development in the private sector when the Trump adminstration has cut core aid programs. The document was met with fierce criticism by Palestinian leadership in Ramallah who characterized the Trump approach attempting to end the idea of two states and the fullfillment of Palestinian national aspirations and to replace it instead with economic incentives. “The American administration has proposed a solution based on Arab money, in order to destroy the Palestinian people’s political will,” was the response offered by Fatah spokesperson Munir Jaghoub. Meanwhile Prime Minister Netanyahu criticized the Palestinians for opposing the plan and committed to “hear the American proposal in a fair and open manner.”
The Run-Down: Shifts and Splits in Party Politics
New elections mean new party lists. Parties have until August 2 to formulate new lists, each according to their own internal rules. What can we expect?
- JOINT ARAB LIST: The Arab-majority parties have committed to re-unification. Many credit the poor performance of the Arab-majority parties in the last election to the breakup of the 2015 Joint Arab List combined with the potent effect of voter suppression and delegitimization of Arab political participation. The leaders of the four Arab factions announced this week that they are committed to reestablishing the Joint List ahead of the upcoming September 17 election, however they have yet to reach a formal agreement.
- LABOR AND MERETZ: The Labor Party and Meretz are discussing running on a joint list (while preserving separate party structures) to ensure that neither fails to pass the threshold. This will likely improve the chances of both parties, since the allocation system, mathematically speaking, gives an advantage to larger parties.) Both will face internal primaries.
- MERETZ: While Meretz Chairwoman Tamar Zandberg endeavored to maintain the party slate as it is currently formulated for the upcoming elections, the Meretz party convention decided that it will hold primaries for party leader on June 27, and that it will determine its party list on July 11. Contenders for party leadership include incumbant chairwoman Tamar Zandberg and former MK Nitzan Horowitz.
- LABOR: Labor will hold a primary on July 2 to select a new chairperson, while otherwise maintaining its existing party slate of candidates. Avi Gabbay, who brought Labor to record lows in the April election, announced his resignation. Amir Peretz, a past Labor Party leader, Stav Shafir and Yitzhak Shmuli are now in contention to lead the party.
- BLUE AND WHITE: It appears that the largest opposition party, Kachol Lavan (Blue and White), led by former IDF Chief of Staff Benny Gantz, will run with its list intact. This week, rumblings within the party indicated some strain among its leaders. Key sources of tension related to the rotation agreement between Kachol Lavan leaders Benny Gantz and Yair Lapid and the party’s relationship with ultra-Orthodox parties.
- UNION OF RIGHT WING PARTIES: On the right, the question is whether the Union of Right Wing Parties, a list that was orchestrated by Prime Minister Netanayhu to expand the size of the right wing bloc — and which included overtly racist Kahanist parties — will run again in its current form. The Jewish Home Central Committee met this week and approved by an overwhelming majority a decision to run the party’s list in its current form in the next Knesset. Meanwhile, Jewish Home Chairman Rafi Peretz has called for broadening the Union of Right Wing Parties to include all parties to the right of Likud. He offered Ayelet Shaked the number two spot on that list. Itamar Ben Gvir, threatened that his party, Otzma Yehudit would secede from the list and run independently if he were not placed at a realistically high spot on the Union of Right-Wing Parties’ joint list.
- NEW RIGHT: We can expect the return of Ayelet Shaked and Naftali Bennett whose New Right party failed to clear the electoral threshold in April’s election. Discussion is focused on whether Naftali Bennett and Ayelet Shaked will fit into the structure of the right wing bloc. Bennett is focused on appealing to more moderate religious right voters. Early speculation suggested that Shaked would try to run as part of the Likud Party, but when Netanyahu fired both Shaked and Bennet from their respective posts as Education and Justice Ministers, he closed that pathway to her — for now. Bennet announced that the New Right would run in the September elections.
- LIKUD: The Likud Party is incorporating former Finance Minister Moshe Kahlon’s Kulanu party into its list. The Likud court, approved the decision to reserve slots on the Likud list for Kulanu party members and determined that a primary to select a new party chairman — i.e. to vote on whether to replace Netanyahu — was not required.
- YISRAEL BEITEINU: Yisrael Beiteinu Chairman Avigdor Lieberman, whose refusal to join the Netanyahu government led Netanyahu to dissolve the Knesset and forced new elections, said for the first time to Kan Radio that he would insist on a national unity government between the Likud Party and Kachol Lavan (Blue and White) that excluded Haredi (ultra-Orthodox) parties.
- NEW PARTIES: Former Labor Prime Minister and Defense Minister Ehud Barak is rumored to be establishing a center-left party that will run in the September 17 elections. Reportedly, Barak has been trying to recruit former generals and other former politicians like former Justice Minister Tzipi Livni and Likud Deputy Prime Minister Dan Meridor to his ticket, along with Adina Bar-Shalom, the daughter of the late Shas leader Rabbi Ovadia Yosef, who registered a political party called Ahi Yisraeli (My Israeli Brother) last year.
NIF Issues in Play
OCCUPATION AND ANNEXATION
In the first 2019 election which concluded in April, the issue of annexation of West Bank settlements became a major theme, with parties on the right endorsing annexation in various forms. Most notably, on the eve of the elections, Prime Minister Netanyahu announced on Israel’s Channel 12 News that he would begin to extend Israeli sovereignty over the West Bank. His announcement, a departure from prior stated positions, reflects growing pressure within the right flank of the Likud and especially among the party’s right wing competitors, to apply Israeli sovereignty to area C of the West Bank, where most of the Jewish settlements sit. With new elections — and an effective green light from the Trump administration — candidates and parties continue to reiterate and clarify their positions on annexation:
In reaction to comments made by the U.S. Ambassador to Israel David Friedman to the New York Times, in which Friedman noted that Israel had a “right” to annex the West Bank, Israeli candidates have taken positions:
- Senior Likud Party member Gidon Saar: “Recent statements by senior US officials indicate that there’s an extraordinary window of opportunity to apply Israeli law to our Settlement in Judea, Samaria, and the Jordan Rift. We’ll do everything not to squander [the opportunity].”
- Yoaz Hendel, ninth on the Kachol Lavan (Blue and White), “The Trump administration approaches the conflict with a sober lens,” and that Friendman’s comments aligned with past Israeli plans (the Allon Plan proposed by Yigal Allon in 1967) to annex most of the Jordan Valley, West Bank hill ridge, East Jerusalem, and the Etzion bloc.
- Meanwhile senior Kachol Lavan (Blue and White) Party member and former Chief of Staff Moshe “Bogie” Yaalon distinguished his party’s position from the open annexationist position of the far right by saying, “We understand that there is no chance of permanent arrangement in the foreseeable future, but we do stand for separation, and we do not want to get to the state that [Bezalel] Smotrich is trying to lead to (and also has led Netanyahu to, as a tail wags a dog) as if there are no Arabs and go to a bi-national state.”
- The newly appointed interim Minister of Transportation Bezalel Smotrich (Union of Right Wing Parties) announced that intends to use his new ministerial post to advance annexation: “The refreshing gusts of wind that we’ve heard in the corridors of the US administration about applying Israeli sovereignty in Judea and Samaria are encouraging and oblige all the ministries to do preparatory work.” Smotrich also announced his intention to establish an outpost of the Ministry of Transportation in the West Bank that would be responsible for paving roads and operating public transportation there.
- On June 16, at the Jerusalem Post Conference in Jerusalem, deputy foreign minister Tzipi Hotovely (Likud) declared: “We must stop using the word occupation. There is no occupation. We call on the UN to stop using this term. All land west of the Jordan River is Israel.”
EQUALITY AND INCLUSIVE CITIZENSHIP
A state of all its citizens?
Controversy ensued after MK Yair Lapid (Blue and White) stated that “Israel is a state of all its citizens,” and quickly recanted his remarks after he was criticized for endorsing the notion of equal citizenship for all Israelis. Lapid corrected the record by saying, “I have been absolutely against having a state for all its citizens my entire life. Israel is a Jewish and democratic state, and so shall it remain.” He clarified that his comments referred only to “LGBT rights.”
MK Yisrael Katz (Likud) characterized the notion that “‘Israel should be a state of all its citizens” as “a seriously anti-Zionist and outrageous remark.”
Meanwhile, Arab candidates were harshly critical of Lapid’s retraction. MK Mtanes Shehadeh (Balad) said via Twitter, “According to Yair Lapid, the state belongs to all its citizens, provided those citizens aren’t Arabs…”
RELIGION AND STATE
It was Avigdor Lieberman, Netanyahu’s former Defense Minister, and staunch rightist leader of the Yisrael Beiteinu (Israel is Our Home) Party who refused to join the coalition — forcing the collapse of Netanyahu his effort to form a government. He did so, apparently, on principle. Lieberman refused to enter a government premised on an alliance with the ultra-Orthodox that would have allowed yeshiva students to continue to evade the draft. His refusal exposed a rift in the right: between the secular, ultra-nationalist right and the ultra-Orthodox, and put conflicts over religion and state center stage.
In the national religious camp, MK Bezalel Smotrich (Union of Right Wing Parties) made comments in favor of instituting biblical religious law in place of Israel’s civil law. Following a public outcry, Prime Minister Netanyahu issued a clarifying statement saying that the “State of Israel will not be a halakhic state.” And though, Smotrich did not receive the Justice Ministry (which went instead to Likud MK Amir Ohana) the question of to what extent religious Jewish law should govern a secular state continues to reverberate in Israeli political discourse. Kachol Lavan (Blue and White) Party Chairman Benny Gantz criticized Netanyahu for appointing Peretz and Smotrich saying, “Traffic laws are being replaced by halachic law.” MK Yair Lapid (Kachol Lavan) mocked the concept of a halakhic state by saying: “I wonder how the security cabinet worked in King David and Solomon’s day.”
Conflicts over the Sabbath
From the Union of Right Wing Parties’ list, Rafi Peretz of the Jewish Home was appointed interim Education Minister, and Bezalel Smotrich was appointed interim Transportation Minister — but they disagree about conducting work on public infrastructure (building highways, bridges, railroads) on the Sabbath. Interim Minister Smotrich said that his policy will be to “maintain the status quo.” He said on this issue: “I don’t intend to change anything and I don’t intend on setting any fires or stepping on any landmines.” But Rafi Peretz is adamantly opposed to allowing work on the Sabbath. Peretz told Yedioth Ahronoth: “I think that we have to maintain a strict status quo. It’s unthinkable that it be violated. This work on the Sabbath is a violation of the status quo.”
It is yet unclear how the new Transportation Minister and National Union chairperson Bezalel Smotrich will handle the issue of public work on Sabbath, which comes under the purview of the Transportation Ministry.
DEMOCRACY AND THE RULE OF LAW
The newly appointed interim Minister of Justice Amir Ohana (Likud) announced in an interview that there are rulings of the High Court which the government is not obligated to fulfill: “In my view,” he said, “the primary responsibility of every state is for the safety and security of its citizens…When there is a clash between the lives of the citizens and the soldiers of the state and any other value, the latter must cede ground to the former.” In other words, there are considerations that supercede the rule of law.
Ohana’s comment was met with uncharacteristically direct criticism from the Chief Justice of the High Court, Esther Hayut, who warned that interim Justice Minister worldview approached “anarchy.” She called his view “unprecedented and irresponsible” and spelled out the implications of such a stance: “Any party [in a court case] can from now on, with the blessing of the Justice Minister, choose which ruling he should follow, and which ruling he does not need to follow.”
During the 2019 election in April, amid a high pitch campaign against the judiciary, MK Ohana attacked the legitimacy and independence of Israel’s legal authorities over the Netanyahu investigations. He characterized them as contrary to the will of the Israeli public. “This is what happens when elements who are chosen by the public and do not have to ask for its trust once every four years decide to take the reins of the state for themselves,” he said.
Meanwhile, newly appointed Transportation Minister Bezalel Smotrich (Union of Right Wing Parties) said Thursday at a conference held at Ariel University in the West Bank, that the issue of the “override clause,” (the amendment effectively neutralizing the Court’s power of judicial review) would be “at the heart” of coalition talks of the next government. Smotrich defended the proposed change to Israel’s balance of powers by saying it would “remedy democracy and create a proper and healthy balance between the three [government] branches in the State of Israel.”
Trends We’re Watching
This unexpected election finds most political players exhausted. Political parties and civil groups spent money and resources on the last elections, and we can expect this weariness to influence the tenor of these déjà vu elections. Furthermore, a significant portion of the campaign will take place during the summer and Jewish high holidays, when many Israelis are abroad. But these new elections come after the right-wing camp suffered an unprecedented blow. Netanyahu’s failure to assemble a coalition can only be seen as his most magnificent failure. Netanyahu faces the most serious battle of survival in his political life. Israelis can expect to see a doubling down on the maneuvers they saw in the last month of the recent election including:
- Voter suppression targeting Israel’s Palestinian citizens;
- Political campaigns premised on racism, incitement against and political delegitimization of Arab participation in Israel’s democratic system;
- Bots networks activated to influence the election;
- Foreign meddling, fake news and other threats to Israel’s electoral integrity;
Democracies all over the world are figuring out how we can best protect democracy from these troubling trends. This time we know what to watch. As the leading defender of liberal democracy in Israel, the New Israel Fund will be watching closely for the telltale signs of anti-democratic practices to make sure Israelis have a free and fair election. We will be fighting back against the hallmarks of illiberalism and authoritarian populism. We know what we are fighting for — during the election and on the day after.