Who are you going to listen to, your mother or your father?
That’s a predicament most parents don’t want to place their children into: it’s a sure recipe for emotional difficulties certain to show up later in life.
Now take that question, conflate it and drape it over a nation.
Then the question becomes, who are a nation’s citizens supposed to listen to, the High Court of Justice or the legislature? What if the government says one thing, the court says the opposite, and the parliament rejoins that the government no longer needs to abide by what the court says?
That is a dilemma that most countries realize they never want to place their citizens into because it’s a sure recipe for domestic disaster. For a country to work, it must have a clear hierarchy, a clear chain of command, a clear set of rules regarding who has the final say.
If a country does not have consent on this, then it is facing a constitutional crisis. And that is a path Israel is hurtling down much sooner than anyone imagined when the new government and its vague promises of judicial reform was sworn into office just seven weeks ago.
Israel is heading for a constitutional crisis
The Knesset this week is expected to move forward on legislation that would block the High Court of Justice from being able to hear appeals against Basic Laws, and to pass the “Deri Law,” which would be an amendment to a Basic Law blocking the court from intervening in ministerial appointments.
This is happening just three weeks after the court ordered Prime Minister Benjamin Netanyahu to remove Arye Deri from his position as health minister and interior minister, saying that these appointments were “extremely unreasonable” because of Deri’s criminal history, including a conviction on tax fraud last year, and because he misled the court during a plea bargain by indicating he would leave politics.
The court ruled that Deri was unfit to serve; now the Knesset is on the verge of passing a bill saying that the courts can’t rule on ministerial appointments. If this legislation passes, there will in all likelihood be an appeal to the High Court, which will likely strike down the law. The government will then say that the court does not have the authority to do this, since the Knesset passed a law saying that the court can’t rule on Basic Laws.
In other words: the government said Deri can serve, the court said he can’t, the Knesset will this week likely say that the court can’t decide, and the court will likely then probably overturn that Knesset legislation. Then what? Can Deri serve as a minister? Who has the upper hand?
Welcome to Israel, winter of 2023.
And that scenario is a relatively tame one. Consider this scenario, one that the philosopher Micah Goodman suggested in a recent podcast could happen if Justice Minister Yariv Levin’s judicial reform proposal passes as is, effectively canceling the power of the High Court of Justice to cancel decisions of the Knesset.
Imagine that the government orders the IDF to demolish an illegal Palestinian structure in Area C and that the Palestinians petition the High Court of Justice against the move.
Imagine then that the court rules in favor of the Palestinians, and tells the government it can’t do this. But imagine then that the government replies that the court no longer – as a result of the judicial reform – has the right to overturn these decisions anymore.
What will the army do in such a case? Who does Chief of Staff Lt.-Gen. Herzi Halevi listen to? His mother, or his father?
That is a recipe for disaster. Israel is not there yet, but it is running there full speed ahead. What happens this week with the Deri law is a good appetizer of things to come.
Israel's chain of command will break down
This breakdown of the long-accepted chain of command in this country, of a hierarchy agreed upon by all, has permeated elsewhere as well.
Last month, for instance, tensions between Defense Minister Yoav Gallant and Finance Minister Bezalel Smotrich, who is also a minister in the Defense Ministry, boiled over when Gallant ordered the IDF to raze the unauthorized Or Chaim outpost, and Smotrich told the Civil Administration, over whom he was supposed to receive authority as a result of the coalition agreement, to halt the evacuation.
The IDF listened to Gallant, which led Smotrich to boycott the next scheduled cabinet meeting.
This time Gallant got the upper hand, but what will happen next time? And there certainly will be a next time.
A similar “who is in charge here” dynamic was on display over the weekend, this time involving National Security Minister Itamar Ben-Gvir.
After a few hundred protesters blocked streets in Jerusalem on Thursday night to protest the judicial reform plan, Ben-Gvir, clearly unhappy, said he was going to summon the head of police in Jerusalem Doron Turgeman for “clarification” over his handling of the incident. Police Commissioner Yaakov (Kobi) Shabtai responded by praising Turgeman for his conduct.
So what was Turgeman to think? Was he being disciplined or praised?
And then, after the terror attack in Ramot, Ben-Gvir went to the site of the attack and called for an “Operation Defensive Shield 2” in east Jerusalem, hearkening back to the large-scale military operation in 2002 when the IDF moved back into the Palestinian cities in order to put down the Second Intifada.
A senior government official responded to Ben-Gvir’s call for a second Operation Defensive Shield by saying “these decisions are not made at bus stops following terror attacks.”
So who is setting policy? Should the police clamp a closure around Isawiya, as the national security minister says, or not? Who gives the orders? Who should be listened to?
Netanyahu spoke of the demonstrations and acts of protest against the judicial reform at the start of Sunday’s cabinet meeting.
“I call on the opposition to act responsibly,” he said. “It is possible to argue and to have dialogue. It is possible to suggest alternatives, this is necessary, but redlines cannot be crossed. Redlines have been crossed in recent days by extremist elements that have one goal: To intentionally bring about anarchy.”
He is right, some of what the opponents of the reform are suggesting – certainly threats to use arms and calls for a civil rebellion – crosses redlines and could lead to anarchy.
But anarchy in this country will also be caused if the rules of the game are no longer clear, and it is unclear who has the final say.
Anarchy will result if the police are put into a position of having to decide whose orders to follow: those of the national security minister or of the police commissioner. Anarchy will ensue if Deri returns to his ministries based on a law that the High Court of Justice may very well say is invalid.
And anarchy will ensue if the army has to decide who it listens to: the High Court of Justice or the government.•