Will Netanyahu's government adhere to High Court rulings?

INSIDE POLITICS: The question of whether the government will or will not comply with the High Court’s decisions only strengthens and fuels the opposition protest movement further.

 HIGH COURT justices hear petitions against the Incapacitation Law. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
HIGH COURT justices hear petitions against the Incapacitation Law.

To obey or not to obey? That is the question that Prime Minister Benjamin Netanyahu chose to have the world ponder during a blitz of interviews he had with American media during the past two weeks.

Netanyahu, who consistently evades tough questions from Israeli journalists, preferring the more respectful and less informed foreign interviewers, remained equally consistent in avoiding a question that should have been relatively trivial and straightforward: Would he respect a High Court ruling to step aside or nullify the laws of the judicial reform?

“I hope it doesn’t come to that,” Netanyahu replied, in one form or another, every time he was asked this question, never offering a clear answer. Instead, he reconfigured the equation, placing the expectation on the High Court – or perhaps even giving a warning – that it should not interfere with the Basic Law and move into uncharted territory, which could send the country into a tailspin. 

He didn’t say this by accident, or as a last-minute thought. Netanyahu’s vague message in English was expressed by his colleagues in the Likud and the coalition in a Hebrew version that was much more direct and threatening. 

“The governments of Israel have always made sure to respect the law and the High Court’s rulings, and the High Court has always made sure to respect the Basic Laws,” read a message from the Likud that was disseminated last week, after the High Court announced that a full 15-judge panel would hear petitions against the coalition’s reasonableness law. 

“Any deviation from these principles will severely damage Israeli democracy.”

This past week, when the High Court issued an order to the government regarding the so-called ‘incapacitation law’, and scheduled further deliberations with an expanded panel, the heads of the coalition parties issued a joint statement repudiating the authority of the High Court to annul basic laws or even delay their enactment, arguing that it amounted to “nullifying the results of the elections.”

In tweets and interviews, government ministers took these messages one step – or even 10 steps – further, and warned the judges that if they intervene in the basic laws, they will become nothing less than enemies of democracy.

 Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting in the prime minister's office in Jerusalem, 30 July 2023. (credit: Abir Sultan/Pool via REUTERS)
Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting in the prime minister's office in Jerusalem, 30 July 2023. (credit: Abir Sultan/Pool via REUTERS)

Constitutional crisis 

The more radical and extreme members of the coalition explicitly declared that if the High Court nullifies the laws, the government will not be obliged to respect its ruling.

For seven months now, since the current government was sworn in, and the judicial reform was initiated, everyone has been warning of an impending constitutional crisis. And indeed, when a prime minister refuses to commit to obeying the High Court’s ruling without adding reservations, and senior members of his coalition publicly threaten that they will not comply with it, it is clear that the constitutional crisis is already here, and is quickly approaching its peak.

As the Knesset adjourns for summer recess, the location of the wrangling has simply shifted from the Knesset plenum and the Knesset Constitution, Law, and Justice Committee, to the High Court, where a blitz of hearings has begun on the appeals and judicial reform that the government has undertaken in recent months. The climax is expected to arrive in mid-September when an expanded panel of 15 justices will adjudicate the appeals against the suspension of the reasonableness law.

Behind closed doors, Netanyahu told his close associates that he intends to respect the High Court’s decision.

However, publicly, he is leading a campaign to delegitimize their authority. The words, “They will not take our voice away,” appear on hand-held placards for the massive right-wing protest that Netanyahu’s close associates are organizing for next month.

These placards include images of High Court President Esther Hayut, her deputy Uzi Vogelman, and Attorney-General Gali Baharav-Miara. Netanyahu’s son, Yair Netanyahu, has been posting on social media, urging supporters to show up.

Senior members of the coalition admit that their preliminary messages were deliberately meant to discourage judges from intervening. “If we announce right now that we will honor all court decisions, we will essentially be giving the High Court legitimacy to intervene, and it would then be easier for the judges to nullify Basic Laws,” admitted a senior source in the Likud party. 

“For that reason, we are highlighting the fact that the attorney-general has never taken such a step before and that doing so would place responsibility for the constitutional crisis on the High Court.”

However, in the meantime, the prime minister, and the government's refusal to comply with the High Court’s rulings, comes with a hefty price tag: It exacerbates the legal, cultural, and political power struggle, and increases the lack of trust breaking down Israel’s society, economy, and military, instead of working on their recovery.

JUST TWO weeks ago, after the bill to cancel the reasonableness standard passed in a 64-0 vote, Netanyahu addressed the nation, saying, “It is now possible to reach a broad consensus.” He also won over foreign journalists by telling them about efforts being made to reach a broad consensus. 

However, in reality, according to sources both within the coalition as well as in the opposition, no negotiations or dialogue – or any discussion even remotely resembling agreement on any topic – are taking place. In the meantime, in an attempt to hamstring the opposition, Netanyahu is mentioning that the government could still resort to unilaterally enacting laws, demonstrating that he doesn’t really need them after all.

This week, in another interview, Netanyahu declared that he only intends to push forward legislation to change the committee that selects judges – and that’s it. However, that “only” constitutes the lion’s share of the original reform proposed by Justice Minister Yariv Levin – the very reform that drove hundreds of thousands of Israelis to the streets in protest in the first place.

As long as Netanyahu refuses to take the judges seriously and continues to threaten unilateral legislation, the protests are unlikely to cease. In fact, the question of whether the government will or will not comply with the High Court’s decisions only strengthens and fuels the opposition protest movement further.

SINCE THE law to cancel the reasonableness standard was approved in the Knesset at the end of July, the resulting social, economic, strategic, and security-related damage of the first phase of the judicial reform plan is becoming clearer. Nevertheless, Netanyahu is choosing to deepen the crisis. 

One after another, credit rating agencies have issued warnings about Israel’s lack of political stability, and the Bank of Israel has warned of the risk to Israel’s economy. Israel’s healthcare system is facing a dire crisis, since hundreds of doctors and specialists have reported that they’re seeking relocation overseas. 

Presidents of Israeli universities have reached out to the prime minister, citing the projected damage to academic research and Israel’s hi-tech sector. The Education Ministry’s director-general resigned from his position. The acute crisis unfolding in Israel is also increasingly affecting the IDF as well, which could potentially lead to the destabilization of its reserve forces and compromise of its regular forces, as well as the units that newly conscripted 18-year-olds are meant to join.

Netanyahu and Defense Minister Yoav Gallant have been working diligently to conceal the extent of the impact this has had on the IDF’s reserves, and they persistently assert, partially for the ears of Israel’s enemies, that there has been no impairment to Israel’s military readiness. 

However, reports of significant disruptions, and quiet messages about the cessation of volunteering for reserve duty in air force units, intelligence units, and special forces are accumulating, resulting in substantial and deep damage to the military’s preparedness.

“They are counting the trees instead of discussing the overall situation of the forest. The issue is not dry mathematics, a headcount of how many reservists did or did not show up this week for training, or the IDF’s level of military readiness at any given moment,” wrote a group of former members in IDF special operations and offensive cyber units who led the protest last week.

The problem is much more extensive than just the judicial reform, the IDF reservists explain. It’s also the calls to burn down Huwara, the madness in the hills of Judea and Samaria, and the fact that these Jewish terrorists are getting pats on the back. It’s the attacks on senior security officials by the extreme settlers within the coalition, and the politicization of Israel’s police force.

The Netanyahu-Ben-Gvir-Smotrich cabinet is experiencing a deep crisis of trust that over time will affect Israeli citizens’ willingness to volunteer, fight, and put their lives at risk for their homeland. Security experts estimate that the damage caused to the IDF will take quite some time to repair.

Netanyahu could have made an effort to restrain the escalating crisis and capitalize on the summer parliamentary recess to initiate damage control. Instead, he is continuing to flex his power and wage an all-out war on the judiciary. His inability to respect the High Court’s decisions is only deepening the people’s lack of trust in him and his government, which is fueling the ongoing protests that have continued throughout the summer. 

It is a government that refuses to adhere to the High Court’s rulings; ignores the advice of the attorney-general and security experts; declines to meet with the IDF chief of staff and top military officials to discuss the ramifications of the judicial reform on Israel’s security; and disregards and ignores petitions, protests, and demonstrations. Thus, it undermines its own ability to campaign against conscientious objectors, since the government itself appears to be the main intransigent.

Moreover, the government will also find it difficult to pass the conscription law, which the haredi factions are demanding be proposed the moment the Knesset reconvenes in October. The coalition parties realize that this is a terrible time to address the exemption of haredim from military service and that the backlash by protesters will only intensify.

Translated by Hannah Hochner.