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Israel’s courts are under attack from the right-wing

Michael Ben Ari, the leader of the Jewish Power party on 23 December 2010 [GALI TIBBON/AFP/Getty Images]
Michael Ben Ari, the leader of the Jewish Power party on 23 December 2010 [GALI TIBBON/AFP/Getty Images]

This week, Israel’s Supreme Court ruled to ban Michael Ben Ari – the leader of the extreme-right-wing Otzma Yehudit party – from running in the country’s upcoming general election on 9 April. Onlookers breathed a sigh of relief, congratulating the court on making “the right decision” and narrowly avoiding the electoral inclusion of a man who openly expresses racist, ultra-nationalist views.

Yet in deciding to ban Ben Ari, Israel’s Supreme Court has only dodged a short-term bullet. As reactions from the Israeli right have already shown, a much bigger war against the power of the Israeli judiciary is on the horizon, and the attack dogs have just been handed their smoking gun.

The Otzma Yehudit saga

Following Israeli politics in the past few weeks has, even by its own melodramatic standards, felt like watching a telenovela. The saga began when, in late February, Israeli Prime Minister Benjamin Netanyahu orchestrated a deal to tie Otzma Yehudit to the Union of Right Wing Parties (URWP), an alliance comprised of right-wing, religious-Zionist parties Jewish Home and the National Union.

Facing the prospect that several of his long-time allies might not pass the 3.25 per cent minimum threshold required to sit in the 120-seat Knesset, Netanyahu’s deal was seen as a desperate attempt to sure-up the right-wing bloc that has secured him almost a decade in power. Under the deal, Netanyahu agreed to set aside two cabinet posts for the URWP in return for it taking Otzma Yehudit under its wing. Crucially, the deal would also see the URWP work to secure Otzma Yehudit a seat on the Judicial Appointments Committee, which selects Israel’s judiciary.

Posters of candidates for Israel's upcoming general election in April, on 23 January 2018 [Jack Guez/AFP/Getty Images]

Posters of candidates for Israel’s upcoming general election in April, on 23 January 2018 [Jack Guez/AFP/Getty Images]

Rightly so, the spectre of Otzma Yehudit obtaining any role in a ruling coalition spooked Israel’s liberals and left-wing. The party is a self-described ideological descendent of rabbi Meir Kahane, an Orthodox Jewish-American who founded the Kach party. Kach advocated for the forcible removal of Palestinians from Israel and the occupied Palestinian territories (oPt) and, after being elected to the Knesset in 1984, was declared racist by the Israeli government and banned from future political participation. Kahane’s teachings also inspired Baruch Goldstein’s 1994 Ibrahimi Mosque massacre, in which 29 Palestinian worshippers were shot dead in the West Bank city of Hebron.

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Despite its protestations to the contrary, Otzma Yehudit’s ideology is equally abhorrent. Ben Ari has repeatedly called for the “enemies” of Israel to be expelled, defining these enemies as anyone who “supports Hamas or the PLO [Palestine Liberation Organisation], someone who supports terrorist groups, anyone who doesn’t want a Jewish state, anyone who thinks we are occupiers here, anyone who thinks it is forbidden for Jews to live in every place of the Land of Israel”.

The Likud-orchestrated deal and Otzma Yehudit’s extreme ideology prompted left-wing party Meretz and Israeli Labor Knesset Member (MK) Stav Shaffir to file petitions against the party, calling for Ben Ari to be banned from electoral participation. The petitions were heard by Israel’s Central Elections Committee, the body which oversees the country’s electoral process and is made up of MKs from each political party.

Ofer Cassif, The Israeli-Arab alliance Ra’am-Balad and Hadash’s only Jewish candidate [Wikipedia]

Ofer Cassif, the Israeli-Arab alliance Ra’am-Balad and Hadash’s only Jewish candidate [Wikipedia]

The left-wing’s attempts to disqualify Ben Ari prompted a series of counter-petitions against Israeli-Arab alliance Ra’am-Balad and Hadash-Ta’al’s only Jewish candidate, Ofer Cassif. In what quickly became a charade that exposed the election committee as beholden to its members’ political agendas, the body ignored the recommendations of Israel’s Attorney General Avichai Mandelblit and allowed Otzma Yehudit to run in the election. It simultaneously banned Ra’am-Balad and Cassif from participating, claiming they rejected Israel’s character as a “Jewish and democratic state”.

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When the Supreme Court is the right-wing’s stage

When the Central Elections Committee’s decisions were handed to the Supreme Court for a final verdict, Israel held its breath. Finally, after days of intense debating in which a full bench of nine Supreme Court judges heard the petitions, the court ruled on Sunday to ban Otzma Yehudit’s leader Ben Ari. For their part, Ra’am-Balad and Cassif were allowed to run on 9 April.

Yet despite this apparent victory, what the Supreme Court hearings in fact provided was an opportunity for Otzma Yehudit, and indeed Israel’s right-wing parties in general, to air their views on an Israeli, and indeed, global stage. And perform they did.

Speaking ahead of the hearing, Otzma Yehudit’s number two Itamar Ben-Gvir said: “We hope that the court will do what is right and reject outright the request to disqualify me and Ben Ari. Any reasonable person understands that this is a ridiculous petition […] which constitutes an attempt [by the left] to influence the opinion of the judges in an improper manner.”

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Otzma Yehudit’s allies also saw the hearing as a chance to shine. Bezalel Smotrich – the head of the National Union party and number two on the URWP’s slate – claimed that his party “represents the sovereign people” and that the court acts “with disdain” for the Knesset and the elections committee. In one particularly heated exchange, Smotrich shouted at Chief Justice Esther Hayut: “I respect the court, and I ask you to respect the Knesset and its representatives.” In turn, Hayut silenced Smotrich and instructed him not to speak without being called on.

When the decision to ban Ben Ari was announced, this rhetoric reached new heights. Ben Ari himself slammed the verdict, saying it was the result of a “legal junta” led by Attorney General Mandelblit, who, in Ben Ari’s estimation, has “taken over” Israel. “This isn’t a democracy,” he told journalists on Sunday: “The legal junta took power and are trying to control our lives.”

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Israel’s Justice Minister and co-founder of the New Right (Hayemin Hehadash) party, Ayelet Shaked, also saw in the ruling an opportunity. Shaked said in response to the decision: “The judges of the High Court have turned themselves into a political factor. Their decision to disqualify Ben Ari and authorise parties that support terror [Ra’am-Balad] is a blatant and erroneous intervention in Israeli democracy. Tomorrow I will publish my plan for the completion of a judicial revolution in my next term.”

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The right-wing charge against the judiciary

It should come as little surprise that Shaked was quick to lambast the Supreme Court’s verdict; restricting the power of Israel’s judiciary has been a pet project of hers since she was appointed justice minister in 2015.

Eyebrows were raised in October when Shaked warned the Supreme Court not to accept any petitions filed against the controversial Nation-State Law, which in July declared Israel the “national home of the Jewish people” and effectively relegated Israel’s some 1.8 million-strong Palestinian community to second-class citizens.

Shaked has also openly admitted to moulding the judicial system in favour of Israel’s illegal settlers. Commenting on the issuance of a legal opinion which would pave the way for expropriating a West Bank outpost in December, she said:

From the beginning of my current term [as Minister of Justice] I have set a goal of normalising the lives of [illegal Israeli settlers in the West Bank] and normalising as many communities as possible. We have gone from a discourse of eviction to a discourse of normalisation.

To help her achieve this goal, Shaked has sought friends in high places. In January, she came under fire when a sex scandal involving some of the most senior members of the Israeli judiciary was exposed by the Israel Police. The scandal saw the head of the Israel Bar Association, Efraim (Efi) Nave, arrested, after it was alleged that he helped appoint a female judge in return for sexual favours.

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Nave was a powerful ally of Shaked’s, both being members of the very same Judicial Appointments Committee in which Otzma Yehudit is seeking a role. Shaked’s political opponents claimed she had allowed Nave to abuse his power under her watch in order to promote her own political interests, calling for her to resign in the wake of the scandal.

For her part, Shaked hit back at her “haters”, just this week releasing a campaign video in which she models a perfume called “fascism”. In an admittedly-slick black and white video, Shaked quotes the criticisms levelled against her: “Judicial revolution, activism restriction, appointing judges.” She then “corrects” these criticisms, instead pointing to her support for “governance, separation of powers [and] Supreme Court restraint”. The video concludes with Shaked saying that the “fascism” perfume “smells like democracy to me,” before she promises “the next revolution is coming”.

A smoking gun

Observers ignore Shaked’s campaign promises at their peril. Unlike Otzma Yehudit, whose ideology has long been considered beyond the pale of acceptable rhetoric, Shaked is a central figure of the Israeli right and, frankly, her views are becoming mainstream. She inspires support from a largely-secular portion of the electorate that is otherwise repulsed by religious Zionism. She has played to her strengths as one of only a handful of female election candidates, softening the appearance of a right-wing so often dominated by her male colleagues.

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Though Otzma Yehudit’s post-electoral fate is, as yet, unclear, Shaked is guaranteed to win a seat in the Knesset on 9 April. The New Right party is currently polling at around six seats and, given her place as number two on the party’s slate, Shaked will not disappear from the political arena any time soon. By her own admission, she may even run for prime minister one day.

What Shaked and her like-minded allies therefore represent is a threat to Israel’s judiciary. Though this threat is not new, and of course should be considered in relation to the power of a now 70-year-old state institution, it must not be underestimated. Raising eyebrows will do little to stop the right-wing’s methodical steps to curtail its power.

The predicament currently facing the US may provide a useful analogy. US President Donald Trump has, in many ways, ripped up the presidential rule book, using unconventional tactics to deliver on his lavish campaign promises. Liberals and the left-wing have consoled themselves with the fact that, even if he is re-elected in 2020, President Trump’s term will not last forever.

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Yet as the appointment of controversial judge Brett Kavanaugh to the US Supreme Court in October demonstrated, the “Trump effect” could last for many years to come thanks to his policy of stacking the judiciary in his favour. To date, this legacy includes 89 judges that Trump has nominated to serve at all levels of the US court system. The worry for liberals is that these judges “will now shape American life according to the narrow conservative vision of the elite, predominantly white and male groups guiding Trump’s hand as he makes his picks,” an impact that promises to set the US’ agenda long after he is gone.

Though Israel’s ruling elite may not be exclusively white or male, the hand that guides Netanyahu’s government – or indeed any government should his re-election bid be unsuccessful – is right-wing. Focusing attention only on the most extreme manifestation of this bloc, Otzma Yehudit, is to ignore the much wider problem that a group bent on curtailing the power of the judiciary and stacking what remains of Israel’s court system in its favour represents.

Israel’s Supreme Court made the right decision in banning Ben Ari, but in the longer battle for the heart of the judiciary, its fight is only just beginning.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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