Netanyahu’s Dilemma: Domestic Unrest vs. Regional Power Play

Painful sanctions set in place by the Trump Administration have crippled the Iranian economy, and following the American military withdrawal from Iraq and Afghanistan, Israel is emerging as a key leader in a regional alliance against Iranian influence.

Iran requires partners.

Iran supports proxies in Syria, Yemen, Iraq, Gaza, and Lebanon, which is an impetus for countries like Jordan, Saudi Arabia, UAE, and Bahrain to formally recognize Israel. Rather than submit to Persian-Shiite regional dominance, the Sunni Arab states hope that Israel can serve as a counterbalance against Tehran. Prime Minister Benjamin Netanyahu has been carefully up-playing Israel’s potential to lead a regional counter-Iranian block in the Middle East, offering regional partners access to Israeli banking and tech industries as a part of a larger campaign for diplomatic recognition.

But, Israel is going through a painful period of internal instability. Netanyahu is Israel’s longest-serving Prime Minister and opposition to his continued tenure is fierce. Netanyahu has increasingly had to bend to demands from the right for judicial reforms in order to keep his fractious coalition together. Netanyahu’s coalition feels strongly that the Supreme Court has seized power for itself and is nakedly partisan. However, proposed reforms are causing a visceral backlash from Israel’s liberal left and creating painful domestic political instability that frustrates Israel’s capacity to solve regional problems abroad.

The independence of Israel’s Supreme Court is a hallmark of the separation of powers postulated by French philosopher Baron de Montesquieu. Though its implementation and preservation are generally lauded by the world’s politicos, it has a destabilizing effect. This political destabilization is playing out in real-time in both Israel and the United Kingdom, and as Israeli parliamentary democracy was based on the British model, the emerging crises make for a fascinating case study.

In the Beginning…

When Israel emerged from the 1948 Arab-Israeli War as an independent nation, it chose to follow a parliamentary democracy model based on the United Kingdom. Israel’s President is the Head of State in place of a King, but like the British Monarch, his powers are largely ceremonial. The President merely presides over the political process. Instead, Israel’s executive authority rests on the Prime Minister and his cabinet. And as is the case of the UK, Israel’s legislative authority resides in Parliament (called the Knesset in Israel). As the Prime Minister and his cabinet are members of Parliament, executive and legislative powers are effectively concentrated in a single institution.

Israel actually lacks a formal constitution. After observing the United Kingdom’s wonderful political stability (Rule of Law, healthy discourses on civil rights, recognition of civil liberties), Israel’s founders chose to base their own government on the English Parliamentary and Common Law traditions. Over approximately 900 years of consensual government, the English observance of Common Law traditions had coagulated into something of an oral constitution, and the Israelis hoped that something similar would happen in their own country.

Unlike French or Roman Civil Law, in which judges must interpret the precise text of the Law on paper and apply it on their own to an isolated case before them, Common Law requires judges to read the rulings and opinions of other judges adjudicating similar cases. Once the presiding judge understands how others have interpreted the Law and applied it, he must then make a determination on how to apply their logic to the present case and make a ruling. The great benefit of Common Law, especially as it was applied in the English system, is that judges cannot follow their own whims and desires. The entire judiciary is bound together in a cohesive and consistent application of the Law, regardless of the sympathies, instincts, or agenda of the presiding judge.

Montesquieu’s Curse

Israel adopted what is known as the Basic Law—14 quasi-constitutional declarations that require a supermajority in the Knesset to change. This formed the first precedent for the Israeli judiciary. Unfortunately, Israel had a unique difficulty: how would matters regarding its fundamental laws be adjudicated?

In his book The Spirit of Law, French intellectual Baron de Montesquieu muses about an ideal government in which the executive, legislative, and judicial branches all check one another with separated powers. This theoretically ensures that no one tyrant in any branch can impose his will on the nation. Though James Madison drew heavily from Montesquieu in drafting the American Constitution, Montesquieu’s theories have a spotty record in creating political stability in other countries. There were and still are numerous countries that applied Montesquieu’s theoretical separations of powers that nevertheless have devolved into tyrannies (Mexico under President Porfirio Diaz, the Russian Federation under Vladimir Putin, and South Africa under President Jacob Zuma, to name a few). The theories on the separation of powers influenced Israel’s founder and first Prime Minister, David Ben-Gurion, as he constructed a functional government in 1948.

Following the dictates of Montesquieu meant establishing an independent court system (with a high court of appeal) to check the Knesset and Prime Minister. The English example was less instructive in this regard because the British Supreme Court was a creation of the Tony Blair government in the Constitutional Reform Act of 2005. It was not active until 1 October 2009.

The Old British High Court of Appeals

Before 2009, the United Kingdom had always relied on the Lords of Appeal in Ordinary. The Lords of Appeal in Ordinary were a committee in the House of Lords that had served as the highest court of appeal in the UK for centuries. This committee was chaired by the Lord High Chancellor (in addition to thousands of other duties), who to this day is appointed by the King on the advice of the Prime Minister.

The House of Lords was (and remains) the King’s representative in overseeing the efficient governance of the realm. The House of Lords was, therefore, staffed by members of the English peerage (the Lords Temporal) and the Church of England (the Lords Spiritual). For most of the House of Lords’ history, membership has been hereditary (replaced with a system of appointment in 1999).

The advantage of the UK’s pre-2009 high court (the Lords of Appeal in Ordinary) was that the Law was always adjudicated as a part of the political process. The House of Lords was the English upper house, similar in purpose to the United States Senate. Having a committee within the House of Lords (similar to the Senate Judiciary Committee) serve as the highest court of appeal ensured that the interpretation of the Law would be consistent with the intent of the legislature (Parliament) and went with the grain of the customs, norms, and traditions of the British people. It was this consistency that ensured the high court’s legitimacy over the centuries.

The Lords of Appeal in Ordinary did not frustrate the British people by contradicting the House of Commons. Nor did the high court impose its will on the British people by attempting to implement new understandings of the Law based on fashionable “principles” of the day. Nor did the high court institute fundamental changes through reinterpretation of pre-existing Law. There was no need. The Lords of Appeal in Ordinary were a part of the legislative process, and they were appointed and overseen by the Lord High Chancellor, himself a cabinet member. Recall that British cabinet members are still Members of Parliament (MPs), reflecting the dual nature of Parliament as both executive and legislative branches of government.

There is a reason why the British did not viciously argue over controversial high court decisions (or appointments) on abortion or affirmative action or gun control. These issues were negotiated in the House of Commons and adjudicated through Common Law. When in doubt, the court deferred to Parliament.

In the 18th Century, the French intellectual Baron de Montesquieu developed his theories regarding the separation of powers after touring England. Unfortunately, he spoke poor English, and his entourage included too many idealistic aristocrats. It’s clear that his tour did not give him a clear understanding of English political processes. Otherwise, he would have noticed that England had no separation of powers.

The executive branch of Government—the Prime Minister and Cabinet—are all members of the legislature, and the English courts of the time were subordinate to Parliament.

If It’s Not Broken—Fix It

Despite an excellent track record of impartial adjudication of the Law (and hardly a complaint), it was Prime Minister Tony Blair who decided to interfere with this system. His government proposed replacing the Lords of Appeal in Ordinary with an American-style independent supreme court. Blair’s intent was to create a separation of powers in accordance with the vision of Montesquieu.

The newly created Supreme Court embroiled itself in bitter controversy almost immediately in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland.

In 2016, the UK voted to leave the European Union (EU) by referendum. This result shocked everyone, including Prime Minister David Cameron (who would never have authorized the referendum if he’d known what the verdict would be). Most of the UK’s advocates for leaving the EU were working-class voters. “Remainers” included Scotland, the city of London, most members of Parliament, the college-educated, and the affluent urbanite.

This created a paradox where the government was responsible for seeing to the implementation of “Brexit” while being viciously against it. Negotiations dragged on indefinitely as political elites demanded a new referendum or simply refused to recognize the result.

In 2017, Prime Minister Teresa May’s Conservative government won enough seats to remain the largest single party in the House of Commons but failed to win an outright majority. May negotiated the framework of Brexit, but after the Agreement lost three separate votes in the House of Commons, she resigned.

May’s successor, Boris Johnson, secured the Office of the Prime Minister with the explicit promise to get Brexit done. He needed to call for parliamentary elections in the hope that popular will would give him a mandate through a real majority. The minority coalition led by Labor’s Jeremy Corbin blocked snap-elections, as polling indicated the Tories would likely win a majority. Johnson required a 2/3 majority vote in the House of Commons in order to hold snap elections, and he was bewildered that the minority coalition voted down the motion three separate times (parties out of power usually relish the opportunity to go to the ballet box). Corbin informed the Tories that unless they took a “no deal Brexit” off the table by securing an agreed framework with Brussels, he’d refuse to permit snap elections to move forward.

A “no deal Brexit” meant that there would be no negotiated divorce between the UK and the EU. UK trade with the continent would default to a much harsher tariff regime mandated by the World Trade Organization, costing the British and EU economies billions. Johnson knew that a “no deal Brexit” was a nightmare scenario for the British economy, but he also knew it wouldn’t be healthy for the EU either. He needed to keep the option on the table in order to maintain his leverage in negotiations.

In order to break the deadlock, Johnson advised Queen Elizabeth II to Prorogue Parliament. Prorogation suspends Parliament until a State Opening of Parliament is held several days later. It ends all proceedings, and any pending motion must be reintroduced in the new session. Suspending Parliament when it had not authorized a Brexit agreement, with an end-of-the-year deadline looming, made a “no deal Brexit” a real possibility. This might have forced Corbin to concede snap-elections.

In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, the Supreme Court inserted itself into this well-established prerogative of the Crown by ruling in the following:

1. The Supreme Court has the authority to review royal prerogatives.
2. Prorogation of Parliament is a constitutional prerogative of the Crown, but it cannot be used in bad faith to undermine the Parliament’s function, which is the heart of British democracy. This is known as the Doctrine of Parliamentary Sovereignty.
3. The advice of prorogation to the Crown by Prime Minister Johnson was unconstitutional because it subverted Parliament’s role in the democratic process by breaking the deadlock and frustrating debate over Brexit.

The decision, which was handed down in September 2019, was self-contradictory and tread on the ground that the Lords of Appeal in Ordinary would never have dared defile.

First, the doctrine of Parliamentary Sovereignty declares that Parliament is supreme in all law-making capacities, but the net effect of the ruling was to maintain Parliament’s subordination to the dictates of a foreign and unelected governing entity—the EU’s institutions in Brussels.

Second, Parliament was being prorogued so that Johnson could break the deadlock by holding snap elections, which could not possibly be understood as subversive to British democracy or Parliament’s constitutional role. On the contrary, Parliament is supposed to negotiate these issues, and when strong currents within the institution create a deadlock, snap-elections are meant to restore efficient implementation of the Will of the People.

Third, not since the ratification of the Magna Carta by King Henry III in 1225 has there been any constraints laid on the use of prorogation as a royal prerogative to manage Parliament. Prorogation does not violate the Doctrine of Parliamentary Sovereignty.

Fourth, one might also point out that the Supreme Court is itself an affront to the Doctrine of Parliamentary Sovereignty, particularly given that the Blair government meant to establish the court in the right of Montesquieu—creating a separation of powers where once Parliament had stood alone.

In short, the Supreme Court concocted a non sequitur legal opinion that ensured the minority coalition’s Parliamentary deadlock remained intact.

Johnson was forced to put into writing that a “no deal Brexit” was off the table, and then Corbin conceded to elections. The Tories won a historic landslide in a clear rejection of Parliament’s resistance to implementing the results of the Brexit Referendum. However, this abuse of court authority is an example of the dangers of allowing an unelected committee of judges to adjudicate issues of national interest outside of the established political process. Israel’s founders would have found the UK Supreme Court’s role in Brexit instructive in setting up their own high court of appeals.

Israel’s Mandarins

The Israeli Supreme Court was established as an independent institution from the beginning, creating a separation of powers in the right of Montesquieu. It’s not clear that the role of the high court was debated as thoroughly as necessary in Israel’s early years. The country was little more than a city-state and surrounded by enemies on all sides.

At first, the court maintained a relatively low profile, but gradually, its judges began to expand the role of the institution. In the 1990s, leading Supreme Court Justice Aharon Barak introduced legal doctrines that implemented his interpretations of human rights indirectly into the Law through a series of proactive legal decisions that he himself termed a “Constitutional Revolution.” Barak adopted an expansive view of the Basic Laws of Human Dignity and Liberty as well as Freedom of Occupation as the quasi-constitutional basis for his legal activism, and he used this framework in an expansive judicial review of all laws passed by the Knesset.

To many, the moral end-state justified the means—a power grab by the Supreme Court. But the point here is not to say that human rights enshrined in law is not a noble cause. Nor is it to say that the Knesset should not have gone further in establishing a more robust legal framework regarding human rights. But there is very wide debate across the political spectrum as to the scope and role of human rights in public policy.

How do we define human rights? Are rights connected to responsibilities? Do they apply only to the individual, or are they also collective? When are they collective? Where do the rights of the citizen begin and end? Can collective rights infringe upon individual rights? And what of the rights of non-citizens? When can these rights be infringed upon by the state? What constitutes due process prior to removing someone from their rights? Are human rights merely state prohibitions against overreaching state authority, or are human rights also meant to protect citizens from one another?

The Knesset is elected to negotiate these issues on behalf of the Jewish people. This is the basis of a free and democratic system—it establishes the consent of the governed. Instead, Aharon Barak decided these issues on his own with the aid of an unelected committee of oligarchs.

Overriding the majority opinions of the Knesset through an institution that was not explicitly granted such powers set the conditions for a constitutional crisis. From the late 1990s forward, the Supreme Court found itself at loggerheads with Israel’s religious conservatives in particular. The secular Supreme Court, which was staffed by liberals from Israel’s Bar Association, repeatedly used the process of judicial review to override the Knesset’s conservative majority coalition.

The ruling majority under Benjamin Netanyahu (Prime Minister from 1996-1999, 2009-2021, and December 2022 to present) was largely barred from making appointments to the Supreme Court to add ballast to its decisions. The Judicial Selection Committee consists of 9 individuals. Three members are current judges on the Supreme Court. Two members are representatives from the Bar Association. Two members are from the Knesset majority coalition. Two members are cabinet members.

On paper, the committee of nine is supposed to ensure that the will of the majority is considered while lending gravity to the best legal practices of the time and the precedent set by the Supreme Court itself. In practice, the Judicial Selection Committee is factional, and the three members of the Supreme Court and two members of the Bar Association vote as a block. They ensure that appointees are secular and liberal and that appointees will defend the precedent set by Aharon Barak. This ensures that Netanyahu’s constituents do not have a voice in the court’s deliberations.

During the brief tenure of center-left Prime Minister Yair Lapid (1 July to 29 December 2022), the Supreme Court Selection Committee rushed through the approval of 61 judges in one sitting to ensure that all judicial vacancies were filled before the Conservative coalition returned to power. The committee rushed through these judges when Yair Lapid was governing through the slimmest of majorities in an extremely factionalized and unstable coalition, demonstrating the high court’s extreme political partiality.

Proposed Reforms to the Supreme Court

Prime Minister Benjamin Netanyahu is Israel’s longest-serving Prime Minister, but he has been implicated in several scandals, including bribery, breach of trust, and fraud. Nevertheless, under Netanyahu’s tenure, the Conservative coalition has become dominant in Israeli politics.

In 2022, the right-wing bloc won 64 seats in the Knesset (out of 120 seats), securing a majority. However, almost all centrists refused to join the coalition as long as Netanyahu was the Prime Minister. Therefore, in order to create his majority, Netanyahu had to invite far-right and ultra-orthodox fringe factions like the Religious Zionist Party to his coalition. The price of their participation was court reform.

In January 2023, Justice Minister Yariv Levin began introducing controversial legislation meant to reign in the Supreme Court. These reforms included:

• Changing the composition of the Judicial Selection Committee in order to ensure the ruling majority could not be ignored or overruled in appointments.
• Codifying but restricting judicial review by requiring that the full Supreme Court bench be present to hear an appeal against a law passed by the Knesset and requiring an 80% majority of the court’s judges to invalidate said law.
• Granting the Knesset the power to override a Supreme Court ruling against legislation by a simple 61-vote majority.
• Eliminating the “Reasonableness” standard from judicial review—a standard often cited in declaring administrative or legislative actions to be invalid because they are “unreasonable.”

On 23 July 2023, Justice Minister Levin successfully passed legislation eliminating the reasonableness standard. There was also broad support for changing the composition of the selection committee and codifying the process of judicial review, but giving the Knesset’s ruling majority the ability to override all court decisions was a bridge too far.

Over the summer of 2023, members of the opposition coordinated with grassroots activists to turn out massive protests against the proposed judicial reforms. Public reporting at the time indicated that over 2 million Israelis protested in one form or another (Israel is home to approximately 7 million people).

This illustrated the flaw with parliamentary democracies: they are inherently unstable because there are no constraints on majority rule. One has to sympathize. If you are an upper-middle-class secularist or liberal, then the Supreme Court is the only institution in front of a massive change in the way Israeli Law is adjudicated.

You may not be able to recapture the Knesset (the right-wing bloc has maintained a stubborn majority for several reasons that are beyond the scope of this analysis), but you can at least protest at high volume in the hope that the vehemence of your objections will shake Israel’s institutions.

Conclusion

In my recently released book, Hybrid Warfare: The Russian Approach to Strategic Competition and Conventional Military Conflict, I detail Moscow’s interests in Syria, as well as the basis for the Kremlin’s ongoing cooperation with Iran. Sunni Arab states like Saudi Arabia, UAE, and Bahrain are seeking to erect an alliance to counter-Iranian influence—an alliance in which Israel would be the first among equals. However, this arrangement is only possible if Israel’s domestic politics are stable enough for the administration to look up and scan the horizon.

Russia’s emergence as a military backer of Iran makes the need for a Sunni-Arab counterbalance all the more dire. Russia can and will offer Tehran advanced surface-to-air missile systems, sophisticated diesel-electric submarines, and electronic warfare capabilities in exchange for Tehran’s material support for the Russo-Ukrainian War.

For the first time in history, Israel’s neighbors are looking to it for leadership. This is a far cry from the infamous Three No’s issued at the 1967 Arab League Summit: No Peace with Israel, No Recognition of Israel, No Negotiations with Israel.

Netanyahu’s government cannot afford to have mass protests and civil unrest in this key moment—which is why they worked.

Benjamin Netanyahu (likely the most centrist voice in his coalition) was forced to intervene and withdraw the bulk of reforms. However, the story isn’t over. Low-level negotiations remain ongoing in the background, and Netanyahu will likely get a watered-down version of reform passed sooner or later. His coalition will not allow him to forget.

This is the problem that courts that are not subordinate to the political process create. They tend to develop their own values and ideals, visions for how best to structure or govern society, and then they indirectly implement these visions through the process of adjudicating the Law.

Aharon Barak imposed his “Constitutional Revolution” without a single vote cast—fundamental changes to how the Basic Law was understood and implemented without a mandate or consent.

The British had a better answer to judicial review in the Lords of Appeal in Ordinary. They understood that the Law was a product of a process of negotiation between the people’s representatives in Parliament, and in adjudicating the Law, decisions ultimately had to defer to Parliamentary intent and tradition.

That is how the institution remained both politically neutral and legitimate in the eyes of the British people for hundreds of years. In establishing an independent Supreme Court, both the UK and Israel substituted Rule of Law for Rule by Lawyers. Their societies will have to contend with the controversy and instability introduced into their respective political systems.

And until Israel can resolve the bitter disputes that the Supreme Court has produced, it will be difficult to gain sufficient domestic consensus to negotiate and support the emergence of a regional counter-Iranian alliance.

This is the curse of Montesquieu.

Disclaimer: The views expressed in this article are those of the author, and do not reflect the official policy or position of the Department of Defense or the U.S. Government.

References

Berg, Raffi. “Israel judicial reform explained: What is the crisis about?”. BBC News. 11 September 2023. https://www.bbc.com/news/world-middle-east-65086871

Sachs, Natan & Dews. Fred” Israel’s Supreme Court reform crisis”. 28 July 2023. Brookings Institute. https://www.brookings.edu/articles/israels-supreme-court-reform-crisis/

Starkey, David. “David Starkey: Parliamentary Sovereignty”. https://www.youtube.com/watch?v=O46y9iKI7Vg&list=PLEnP7D42DQfU1ZzqT7qLVxvphplyvDgCL&index=15

Starkey, David. “David Starkey: How New Labour Trashed The British Constitution”. https://www.youtube.com/watch?v=lu22nG7CN8Q&list=PLEnP7D42DQfU1ZzqT7qLVxvphplyvDgCL&index=19

Starkey, David. “David Starkey: British Constitutional Change”.

TOI Staff. “Netanyahu, on trial for corruption, says Israel needs judicial reform”. The Times of Israel. 7 December 2020. https://www.timesofisrael.com/netanyahu-on-trial-for-corruption-says-israel-needs-judicial-reform/

Tibon, Amir. “Explained: Netanyahu Government’s Plan to Weaken the Justice System”. Haaretz. 23 January 2023. https://www.haaretz.com/israel-news/2023-01-05/ty-article/.premium/explained-netanyahu-governments-plan-to-weaken-the-justice-system/00000185-8177-d9c9-adbf-e977aabf0000