Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.
Q. Last Thursday, the High Court of Justice ruled by an overwhelming majority that Shas party leader Aryeh Deri may not serve as a minister in the government. Shas and the Netanyahu coalition in general reacted angrily and vowed to accelerate their effort to legislate new laws that reduce the High Court’s authority. What is metaphorical about this?
A. Taken together, the case brought against Deri along with the High Court decision and the angry right-religious reaction express a very dangerous dynamic. Israeli society, deeply divided, threatens to cease functioning as a democracy. The social, religious and political faces of the Deri affair are in many ways those of Israel as a whole. They embody the most controversial aspects of the Netanyahu government’s plan to ‘reform’ Israel’s judicial branch of government.
Q. Why social and religious?
A. To understand why, we have to look at the Likud and Shas through a sectorial lens. The Likud originally rose to power by championing the disadvantaged Sephardic and other Eastern Jewish (Mizrachi) sectors of Israel. In the last election, two-thirds of Likud voters came from these sectors. Note, by the way (a separate but sociologically related issue), that the Likud’s leader has always been Ashkenazic--Begin, Shamir, Sharon, Netanyahu--and its voters have consistently found ways to rationalize this anomaly.
Shas originally emerged as a strictly Sephardic and Eastern Jewish party of Orthodox, Haredi and traditional Jews from the lower socio-economic brackets, with a heavy emphasis on Moroccan Jewry. Shas is the only political party that openly represents an ethnic sector of Jews. It has consistently run on a platform of grievance and victimhood regarding the standing in society of Eastern and particularly Moroccan Jews--a very large ethnic community in Israel. Yet only about 20 percent of Eastern/Sephardic Jewry voted for Shas in the last election.
Deri, Shas’s leader, has been twice convicted on financial corruption charges and has served a term in prison. Upon his second conviction, last year, he agreed to leave politics in a deal that enabled him to avoid another prison sentence. But he promptly did an about face, returned to Shas and led the party to an 11 mandate achievement in the November 1 elections. The High Court case that was decided last week involved an appeal to disallow Deri as a minister based on his plea deal.
The High Court panel of 11 judges that ruled on Deri’s standing by a 10 to 1 margin consisted of nine Ashkenazim, one Arab and one Sephardic judge. The lone dissenter was the Sephardic judge, Yosef Elron, who offered a compromise solution to the issue at stake.
So it is not surprising that Shas cried foul. The High Court decision is “anti-Mizrachi”. How can the will of 400,000 Shas voters led by Deri be ignored? (Note that voters voted for Shas as a party list; they did not vote for ministers, who are chosen by the prime minister.)
“The attempt to carry out a revolution in governance has generated a culture war,” wrote Yediot Aharonot’s Nachum Barnea on Friday with reference to Shas’s grievance against this High Court decision. In turn, the Court’s decision merely put wind in the sails of the coalition’s extreme judicial reform proposal. Two of the premises of that proposal hold that the elected Knesset, representing the public, should be able to overrule the High Court regarding any and all issues of ethics, values and constitutional principles, and to appoint High Court judges.
President Isaac Herzog is reportedly working day and night to bring about compromise and consensus in order to heal this dangerous rift--thus far, without success. Herzog’s political background in the Labor party places him ostensibly in the anti-‘judicial reform’ camp. If his compromise initiative fails, will he be silent or might he try to apply the prestige of his office to that camp’s cause of thwarting or at least radically modifying the coalition’s initiative to downgrade the judicial branch?
Q. Where if at all does Deri’s second corruption conviction figure into this dynamic?
A. If you ask the High Court, the issue the judges ruled on was Deri’s moral integrity or lack thereof. Half of the ten who ruled against Deri cited the simple fact that he had reversed himself after giving his word last year to the lower court that convicted him. In other words, he lied to the lower court. The other half cited PM Netanyahu’s lack of a reasonable basis for appointing Deri in the first place, in view of his conviction and his subsequent behavior. Notably, three of the ten judges who ruled against Deri and Netanyahu are conservatives elevated to the High Court by Likud-led governments seeking to introduce more political ‘balance’ in the Court’s deliberations.
If you ask Shas, Deri, the Likud and the ultra-Orthodox and messianic-Kahanists in the coalition, you will hear a variety of justifications for rejecting the High Court’s reasoning. The lower court judge “misunderstood”. The High Court should simply have no jurisdiction to overrule the prime minister. The two messianic-Kahanist ministers Smotrich and Ben Gvir, both veterans of numerous brushes with the law, understandably are lying low on this issue. The Ashkenazic ultra-Orthodox are notoriously inattentive to issues of democracy.
The entire coalition has now, in response to the Deri decision, vowed to hasten legislation designed precisely to muzzle the High Court in instances like this: for instance, to do away entirely with the concept of ‘reasonableness’ in adjudicating constitutional issues, meaning that the most ‘unreasonable’ political appointment cannot be challenged.
On Sunday, Netanyahu obeyed the High Court and fired Deri from his two ministries. That the two obeyed the Court is good news. But they both indicated that they will look for alternative ways for Deri--who in the eyes of many is a very wise and reasonable politician, however corrupt--to remain an influence on government decisions. And of course they hope and plan for ‘judicial reform’ to be legislated soon and to enable Deri’s reappointment.
For the time being Deri, no longer a minister, continues to sit in the Cabinet and to run his two ministries. Perhaps this is because without Shas’s 11 mandates, the Netanyahu government falls.
Q. So is this justice vs. corruption? Ashkenazim vs. Mizrachim? Or, as Justice Minister Levin would put it, is this an arrogant, undemocratic system of justice vs. a brave reform attempt that will prioritize the will of the people as embodied in the current Knesset majority?
A. The Deri decision brings us directly to the Levin judicial reform initiative now before the Knesset. Levin, backed by the indicted Netanyahu, is campaigning against justice as understood by the courts in democratic countries. He would exonerate corrupt politicians based on an amorphous, populist will of the people. His approach to the traditional concept of balance of power among the branches of government is to favor a skewed imbalance that puts the executive (Netanyahu) and the legislative (the Knesset), meaning the politicians, well above the judicial.
At the ethnic-sectorial level, the Ashkenazic-Sephardic balance in the High Court is truly unfortunate. Note that the Likud is just as ‘guilty’ over the years of appointing Ashkenazim rather than Mizrachim as are the liberal and left-wing parties. (This is not the case regarding gender: currently the president of the High Court and the attorney general are both women.) Other sectors of the Israeli establishment such as the security sector have made far more progress advancing Mizrachim to the most senior positions.
The point here is that the High Court judged Deri based on principles of justice that have nothing to do with the sectarian divide. And it is this that Netanyahu’s coalition, representing half the electorate and currently spearheaded by Shas, its largest party after Likud, refuses to acknowledge.
Q. Is the sectarian divide in Israeli society between Ashkenazim and Mizrachim really still that unbalanced?
A. Not in most areas. As noted, most Eastern Jews did not vote for Shas, the only ethnically-identified Jewish party. Polls taken over last weekend indicate broad public backing, even among a good portion of Likud voters, for the High Court decision. Intermarriage between Ashkenazim and Mizrachim proceeds apace. Still, Shas and Deri have managed, through skillful cultivation of their image as victims of prejudice, to introduce new energies to the Netanyahu government’s drive to downgrade justice in Israel.
Q. Bottom line?
A. The leading sectors of Israeli economic life--retired governors of the Bank of Israel, captains of high-tech industry--are warning loudly that downgrading and sidelining Israel’s judicial branch will deter investors and thereby badly hurt the economy. Last week, US National Security Adviser Jake Sullivan reportedly warned Netanyahu personally about the damage that will be incurred internationally by a downgrading of Israel’s democracy and a consequent blurring of liberal ‘shared values’. Ever larger mass demonstrations throughout Israel are sounding the alarm.
Is anybody in the Netanyahu government listening?