Israeli politicians, court fight for survival amid a judicial storm

NATIONAL AFFAIRS: Whether it’s Deri, Netanyahu, the attorney-general or the High Court, there’s bound to be collateral damage in their battles to outlast the current storms.

 A COLLAGE with Prime Minister Benjamin Netanyahu, Health and Interior Minister Arye Deri and the justices of the High Court. (photo credit: YONATAN SINDEL/FLASH90)
A COLLAGE with Prime Minister Benjamin Netanyahu, Health and Interior Minister Arye Deri and the justices of the High Court.
(photo credit: YONATAN SINDEL/FLASH90)

Fights for survival are never pretty.

When individuals or institutions feel that their backs are against the wall and that they are fighting to preserve their very existence, when they think that they are facing the prospect either of victory or of being vanquished, they will often make questionable moral decisions and take drastic measures that they would not have made or taken in less dire circumstances.

The current maelstrom that Israel has entered is a result of powerful personalities and institutions in this country feeling that they are engaged in a fight for survival.

Prime Minister Benjamin Netanyahu feels he is fighting for his survival, as does Shas leader Arye Deri. The High Court of Justice thinks it is fighting for its existence, as does Attorney-General Gali Baharav-Miara.

Few prisoners are taken in fights for survival, and little attention is paid to the destruction that may come in their wakes.

 Health and Interior Minister Arye Deri at the handover ceremony for the Interior Ministry, January 1, 2023. (credit: YONATAN SINDEL/FLASH90) Health and Interior Minister Arye Deri at the handover ceremony for the Interior Ministry, January 1, 2023. (credit: YONATAN SINDEL/FLASH90)

Welcome to Israel, three months before its 75th birthday.

The High Court’s decision this week regarding the appointment of Deri as a government minister should be seen within the context of these fights for survival. Disregard for a minute the legal merits – of which there are many – of the 10-1 decision; it is also a response to threats to the court’s very existence as an independent judiciary.

When Justice Minister Yariv Levin rolled out his far-reaching judicial reform proposals a night before the court was to hear arguments in the Deri case two weeks ago, he was sending a clear message to the court: play ball, or else.

Or else what? Or else the judicial reform may be even more far-reaching.

Shas MK Avraham Bezalel sent an even more blunt message to the court the day before the ruling overturning Deri’s appointment, saying in a radio interview that if the judges disqualified Deri, they would be “shooting themselves” in the head. His message was clear: play ball, or else.

The court opted for “or else.” Why? Because to play ball would be an end to its existence as an independent judiciary.

That sense of fighting for the court’s very survival surely animated Supreme Court President Esther Hayut’s unprecedented attack on the proposed reform last week.

“This is an unbridled attack on the judicial system, as if it were an enemy that must be attacked and subdued,” Hayut said of Levin’s planned reform. “This is a plan to crush the justice system. It is designed to deal a fatal blow to the independence of the judiciary and silence it.”

Wading publicly into the middle of a searing political debate, she said that if the reform was implemented, “the 75th anniversary of Israel’s independence will be remembered as the year in which the country’s democratic identity was dealt a fatal blow.”

Why did she make comments unprecedented for a sitting Supreme Court justice? Because she feels the court is fighting for its survival, and at a time like this all sorts of niceties and adherence to protocol are cast aside.

According to Yediot Aharonot columnist Ben-Dror Yemini, the court could have – had it wanted to – found some extenuating circumstances to allow for Deri’s appointment, just as it found extenuating circumstances 20 years ago enabling then Balad MK Azmi Bishara to run for Knesset.

An 11-member panel overturned the Election Commission’s decision in 2003 to disqualify Bishara from that year’s elections. In overturning that decision, the court ignored then-attorney-general Elyakim Rubinstein’s statement to the commission that Bishara’s overt support of terrorism and his negating Israel’s right to exist as a Jewish state disqualified him from serving in the Knesset under Israeli law. In 2006, Bishara fled Israel after he was suspected of spying for Hezbollah during the Second Lebanon War.

The court, Yemini argued, showed “amazing flexibility” in letting Bishara run for the Knesset. But it didn’t demonstrate any similar flexibility in the Deri case.

Some of Deri’s supporters argue that the judges on the Deri panel did not look for those extenuating circumstances or demonstrate any flexibility, because Deri is a religious minister of Mizrachi descent in a right-wing government, and that the court has a built-in secular, elite Ashkenazi left-wing bias.

A more plausible explanation – beyond the mere legal merits of the decision and the fact that just last year Deri was convicted of a tax offense and also led the court to believe, in exchange for a plea bargain, that he was leaving public service – is that the court feels threatened and is fighting back to ensure its existence. With this decision, the court showed the political echelon that it would not be bullied.

LIKEWISE many of Netanyahu’s recent moves can only be explained – considering that some of them run contrary to Netanyahu’s past positions – as the result of his feeling that he is fighting for his survival.

These moves include the legitimization he gave Itamar Ben-Gvir’s Otzma Yehudit Party; giving Deri both the health and interior ministries; appointing Ben-Gvir as national security minister with authority over the Border Police in the West Bank; making Bezalel Smotrich a minister within the Defense Ministry with responsibility for the Civil Administration in Judea and Samaria; and allowing total funding for haredi schools even though they don’t teach core subjects.

Indeed, Netanyahu is fighting for his political survival. He needs Otzma Yehudit, Shas, United Torah Judaism and Smotrich’s Religious Zionist Party in his coalition for him to remain prime minister. Had any of those parties not joined his coalition or decided to bolt, it would have been the end of this government and possibly Netanyahu’s political career.

His survival, at least political, depends on Deri, Smotrich, Ben-Gvir and UTJ’s Yitzhak Goldknopf, and therefore he has given them – and will continue doing so in the future – most of everything they have asked. No, Netanyahu is no Jacinda Arden, the popular New Zealand prime minister who announced her resignation after five years in office this week. Netanyahu’s recent steps show that he will do anything to survive politically.

Baharav-Miara is also fighting for her survival, but of the four – she, the court, Netanyahu and Deri – she is the least likely to succeed.

Appointed by the previous government, Baharav-Miara is anathema to the current one; in its eyes she is a symbol of appointed officials usurping the authority of the elected ones.

It is difficult to see how Baharav-Miara survives in her position in the current government, even if another issue on Levin’s judicial reform agenda – separating the attorney-general’s current powers into two: the government’s chief legal adviser and the country’s chief prosecutor – is not immediately implemented.

Still, she fights on for her reputation and the independence of the judicial system she represents. This explains her unprecedented speech last month against the judicial reform of the government she is meant to advise.

“Politicization of the law enforcement system will lead to a serious blow to the most basic principles of the rule of law – equality, the absence of arbitrariness and the absence of bias,” she said. “If there is even a sense of politicization of the law enforcement system, it will be a fatal blow to its ability to function and a serious injury to public trust. In a democratic country, it is inappropriate to change the relationship between the political echelon and the law enforcement system with lightning legislation.”

Those are the words of someone despairing of their own survival, yet hoping to rescue the system she represents.

And finally, there is Deri. He, too, is fighting for his political survival, but it is not immediately clear how he will do so or what weapons he has at his disposal.

He could bring masses into the streets to protest, as he did when he was convicted in 1999 of bribery and given a prison term. Shas supporters are framing the court decision as “throwing into the trash” the votes of some 400,000 people who voted for Deri in the last election. This is almost a mirror image of what happened in 1999, when some 400,000 people voted for Shas in that year’s elections – two months after Deri was convicted.

Conceivably, if Deri chooses, he could get as many people demonstrating in Jerusalem or Bnei Brak this Saturday night against the court, as there will be people demonstrating in Tel Aviv in its favor.

Deri could press Netanyahu to push through some legislation to bypass the ruling, or to get himself appointed as alternate prime minister, which would – through a legal loophole – free him from the court’s ruling. Alternatively, he could – like a master puppeteer – turn over his health and interior ministries to other Shas MKs, pulling the ministries’ and the party’s strings from behind the curtain.

Or, as some inside his party are encouraging, he could say to Netanyahu, either you find a solution and a way for Deri to serve in the cabinet, or the party quits the coalition and brings down the government.

That would team Deri’s fight for survival together with Netanyahu’s, with unknown – but potentially dramatic – consequences for the country.

But consequences, or thinking of consequences, has never been Deri’s strong suit. He is a classic Greek tragic hero, an individual of great power and influence with a flaw – often hubris or an inflated sense of self-importance – that blinds him to the consequences of his actions, actions that ultimately bring about his downfall.

The downfall of tragic heroes in Greek drama was often not limited to the heroes themselves, but also had far-reaching ramifications for those around them.

The same could be true in the Deri case as well. •