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New Israeli Government Faces “Constitutional Crisis”

By: David Parsons, ICEJ Vice President & Senior Spokesman

Rather than another close nail-biter as expected, Israel’s recent elections ended with Benjamin Netanyahu—already Israel’s longest-serving prime minister—securing a surprisingly easy path to form a right-of-center government with a comfortable margin of 64 Knesset seats. Since taking office, however, the new government is running into a growing protest movement against its proposed judicial reforms that is shaking Israel’s democratic foundations. The heated dispute is quickly making the nation’s three recent years of political deadlock almost seem like “the good old days.”  

Most Israelis were undoubtedly relieved that the political impasse that drug the country through 5 elections in 43 months broke and that a strong, proven leader like Netanyahu was back in power. After all, the nation has been trending rightward for quite some time, with 62 percent of Israelis identifying themselves as right-wing, according to a study by the Israel Democracy Institute. 

But some elements of Netanyahu’s coalition are too Far Right for many in Israel and abroad. They are especially troubled by the intolerant views of certain religious Zionist leaders on the Arab minority, the LGBTQ movement, and even Christians. Netanyahu himself helped the Far Right unite and gain political legitimacy, but he surely did not foresee them winning 14 Knesset seats to become such a powerful player in his government. 

Netanyahu’s new government has been passing a flurry of legislation to solidify its position, with a particular goal of reining in the Israeli courts. Many on the Right feel the more liberal judiciary has gone too far in its expansive review and reversal of numerous laws and government decisions over recent years. Thus, the new Minister of Justice, Yariv Levin of Likud, announced a sweeping series of judicial reforms, which the coalition intends to pass in the coming weeks, including a measure banning unelected judges from nullifying laws passed by the elected members of parliament. Even how judges are selected is set for significant changes. 

This has triggered panic on the Left, warning that these reforms will destroy Israel’s democracy by crippling its most principled and widely respected branch of government. They are vowing to launch a nationwide uprising that will dwarf the bitter “black flag” protests against Netanyahu of recent years—a threat that the Right is labeling an “insurrection” and attempted “coup d’état.” 

This heated debate has been brewing for some time now, ever since the Israeli courts began in the early 1990s to invalidate Knesset laws without any clear authority to do so. The underlying problem is that the judiciary cannot rightly declare a law “unconstitutional” because Israel has no constitution. Thus, there are no enshrined checks and balances regulating relations between the legislative and judicial branches. 

One commonly heard explanation for Israel’s lack of a constitution is that the ultra-Orthodox originally objected to such a document because the Torah should be considered modern Israel’s constitution. But it was actually Israel’s founding father, David Ben Gurion, who quashed the idea, arguing that the young nation was poised to be a model of progressive socialism and did not need such a rigid legal document impeding the path forward. Some on the Right say the Left has no grounds to complain and that true democracy is letting elected officials make the most important decisions, while the courts should only interpret the laws. 

At the heart of the current “constitutional crisis” also lies a tug-of-war over the character of Israel as both a Jewish and a democratic State. For decades, the largely liberal judiciary has borrowed heavily from court decisions in other Western democracies to expand and protect minority rights and individual democratic freedoms in Israel. Many on the Right see this as judicial overreach that is undermining Jewish majority rule. 

The religious Right is further concerned that too many recent immigrants are not truly Jewish according to halachic law and thus wants to change the Law of Return. The Right’s distrust of the courts also prompted them to pass the contentious Basic Law on Israel as the Nation-State of the Jewish People in 2018, just to remind judges of the “Jewish” part of “Jewish” and “democratic.” 

The raging dispute over the proposed judicial reforms is rapidly coming to a head as Israel’s Supreme Court just overwhelmingly ruled that Shas party leader Arye Deri is barred from serving as a cabinet minister due to his two past convictions for financial crimes while in public office. Netanyahu needs Deri’s faction to keep his new government afloat and must find a way around this sudden political crisis—or plunge Israel into yet a sixth snap election in a row.