Democracy, Reasonableness, and the Courts

In its 10 to 1 decision, the Israeli Supreme Court ruled that the appointment of Shas party leader, Aryeh Deri, to head two of the most powerful ministries in the Netanyahu government was effectively against a reasonable interpretation of the law because of his recent second criminal conviction and the conditions to which he agreed in order that his prison sentence be suspended. The supporters of this twice-convicted man responded to the court’s ruling with what can only be characterized as an over-the-top reaction, claiming that “Today the court actually ruled that the elections are meaningless. The court’s decision is political and tainted with extreme unreasonableness.” To claim that the ruling that disqualified of a leader of a party that received slightly more than 8% of the ballots (about 390,000 of the approximately 4.8 million votes cast) from serving as a government minister represents a repudiation of the entire election process reflects a fundamental misunderstanding of the democratic process.

First some simple facts. Israeli voters elect parties to the parliament. Based on their proportion of the vote, the number of candidates on each party’s list are then elected to the Knesset. As first on his party’s list, Aryeh Deri was indeed duly elected to the Knesset. The Supreme Court did not dispute that fact, nor did it rescind his election. That voters should choose a man convicted of fraud for Parliament may be hard to comprehend, but still the court did not deny the result of the election. What it focused upon was his role in the government.

The party leader who is able to assemble a majority of the 120 elected Knesset members forms the government. In this case, that was Netanyahu who then made the deals that assigned the ministerial portfolios to those who will assure party support for his government. Those choices are not made by the voters; they are negotiated among party leaders. The court decided one of those appointments was improper. That did not make the elections “meaningless.”

Indeed, the elections actually made abundantly clear that the overwhelming number of voters (over 90%) neither voted for the Shas party nor were they necessarily even interested in its party-leader Aryeh Deri having any control over their lives or the government. That fact cannot be ignored. The November 2022 vote was not an election that could serve as a referendum over whether the leader of the Shas party should be part of the government. If it were, then we would have to conclude that over 90 % of the voters made clear they wanted neither the Shas party nor Aryeh Deri to have a place in the Knesset. In that sense, one could actually argue that the elevation by Netanyahu of a party leader that garnered slightly less than 400,000 votes out of the 4.8 million cast to a head two powerful ministries demonstrates that elections are meaningless.

It is precisely the courts that must serve as the arbiters of what constitutes the legal and reasonable in order help this country navigate the complexities and paradoxes of the confused and dysfunctional electoral system we have created. The courts can save us from the impossible situation of a party and a leader who represents a tiny fraction of the voters controlling and disabling democracy and the law. Woe to the country that forgets this. Woe to the people who think democracy can exist without justice. As the Scripture reminds us: “Justice, justice shalt thou pursue.”