Analysis

The Court Will Be Netanyahu's Punching Bag, With Nobody to Moderate the Blows

Kulanu Chairman Moshe Kahlon says internal polling shows he lost voters because of his consistent defense of the legal system

Israeli Prime Minister Benjamin Netanyahu (C) waves to supporters at his Likud Party headquarters in the Israeli coastal city of Tel Aviv on election night early on April 10, 2019.
Thomas COEX / AFP

Even before the electoral spoils have been divided, one thing is clear: The fifth Netanyahu government will make the legal system its punching bag, and this time, the governing coalition will contain no moderating elements.

Kulanu Chairman Moshe Kahlon, who during the last government vetoed various reforms aimed at undermining the power and status of the Supreme Court and the attorney general, has had it with that job. He says internal polling shows that he lost voters because of his consistent defense of the legal system.

There’s also another reason, which we’ll get to shortly. But the bottom line is that while he’ll continue supporting the rule of law, he’ll no longer “commit suicide” for it the way he did last term, even if he won’t say so openly.

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“We mustn’t forget that the Supreme Court is the last refuge of the weak, so it needs to be as strong as possible,” he said in an interview with Haaretz in January 2015. Then, during the coalition negotiations that followed that year’s election, he said he “wouldn’t lend a hand to undermining the Supreme Court.” And he kept his word.

Thanks to the veto power he demanded, Kahlon was able to kill a proposal to increase the proportion of politicians on the Judicial Appointments Committee and prevent the passage of an override clause that would have let the Knesset reenact laws overturned by the court. He also thwarted a proposal to abolish the seniority system for choosing the court's president, a proposal that would have prevented Esther Hayut from assuming that post.

Not long afterward, the court gave him a slap in the face by overturning his own pet reform, a law imposing a special tax on third apartments, on the novel grounds that the legislative procedure was flawed. Privately, Kahlon said he felt betrayed by the legal system. But outwardly, he remained unchanged and continued thwarting proposals that threatened the court.

But then came an even more painful blow, at an even worse time. In February, the court ordered him to apply the cigarette tax to rolling tobacco as well, in the name of the principle of equality. Kahlon, the finance minister, opposed the move, but he wasn’t given the right to have his position represented in court.

On the day that ruling was handed down, Kahlon spoke at the Movement for Quality Government in Israel’s “Knights of Quality Government” awards ceremony. He said he hadn’t enter coalition negotiations in 2015 with “a Supreme Court agenda,” but when he discovered that the Habayit Hayehudi party was demanding enactment of the override clause and other legal reforms in its negotiations, he demanded veto power over all such changes.

He listed all the bills he had thwarted during his tenure, including one to grant prime ministers immunity from prosecution and another to prevent the state comptroller from conducting audits in real time.

“It’s lucky we were there,” he said. “I tell you openly: Politically, we’re paying a price for this. I see it in the polls. But what can you do? If you believe, then you pay.

“If I were against the Supreme Court, I’d be doing much better” in the polls, he continued, adding that when pollsters asked voters why they wouldn’t vote for him, they responded that “I won’t let them change the Supreme Court.” Nevertheless, he promised, “I intend to continue this way.”

Then, last month, the court ordered him to raise the cost of price-controlled milk by 3.4 percent, after a full year in which he had refused to do so despite an increase in production costs. In this case, too, the attorney general sided with the petitioners rather than the finance minister.

And Kahlon finally broke. “The High Court’s ruling directly harms the consumer,” he said. “It’s socially insensitive and suffers from a complete imbalance between considerations of greed and the public welfare. This ruling will have unacceptable results.”

Just five days later, journalist Raviv Drucker of Channel 13 news reported that Kahlon had changed his mind, and was no longer willing to be “a Shi’ite suicide bomber” to prevent reforms of the legal system.

The government now being formed will probably include people who are even more extreme than outgoing Justice Minister Ayelet Shaked, such as Bezalel Smotrich and Yariv Levin. Prime Minister Benjamin Netanyahu, who until a few years ago was also leery of undermining the legal system, is currently under threat of multiple indictments and therefore targets the justice system. His election campaign included so much criticism of law enforcement that it sometimes overshadowed his diplomatic achievements.

In the post-Shaked era, her coalition partners are hungrily eyeing her job. Two leading candidates to succeed her are Levin (Likud) and Smotrich (Union of Right-Wing Parties), both of whom were spearheading a war on the legal system even before it became fashionable.

The fact that Kahlon managed to win just four Knesset seats merely reinforced his decision not to fight for the legal system any longer. Even if it remains a child dear to his heart, Kahlon would rather abandon it to someone else – even if that means it will be orphaned.