A Court without a democracy, for a democracy without a Court: Explaining Israel’s constitutional crisis

Israel is officially going to elections on 27 October 2026, and just before moving to a caretaker government, a new assault on democratic institutions is taking place. For the first time in Israel's history, the government has declared in a statement that it will not respect a Supreme Court ruling.

Sharon and Yuval discuss the fight for three democratic institutions: the judiciary, the media, and the Attorney General.  Without a formal constitution, the stakes of this election are clear.

Watch on Youtube: https://youtu.be/xYu445AgWiI

Transcript

Why Voters Are Shifting Now

SPEAKER_01 0:09

Welcome to Politica, where we explain Israeli politics at a diaspora volume. I'm Sharon Offenberger here in Australia, and joining as always is Yuval Regev in Israel. In the last two episodes, we had a look at Israel's voters and mapped out different identities and alignments. What we noticed was even though Israeli politics can be quite identity-based, so in the last episode we discussed how Arab voters would tend to vote for Arab parties, and the same is true for the Kharidim. Left and right also traditionally voted around a singular issue, but that's not even on the table anymore, and that was peace with the Palestinians. In the political chaos that began when Netanyahu was indicted for fraud, bribery, and breach of trust in three separate cases, new issues have come to the forefront. And that really shuffles the voter cards, or at least enough to make the election unpredictable. In the next few episodes, we will look at a number of very different but very critical topics which are activating voters, even if they're not easily packaged into distinct political platforms or identities. But it's fair to say that these issues have really come to a head during the current government's term. To be honest, my head sometimes spins from the number of different crises that this government has created. So let's just jump in and try and focus on the main ones. Yuval, welcome.

SPEAKER_00 1:36

So shalom, sharan, and shalom to our listeners.

Government Signals It May Defy Court

SPEAKER_00 1:39

And it's been a very, very dramatic week in Israeli politics because for the first time, some say in Israel's history, the government has actively said that it would disregard a ruling by the Supreme Court. And this is groundbreaking. You know, the Israeli government, and specifically this government, has been flirting with this concept of uh not respecting rulings by the Supreme Court, but it's never been out there in the open, a complete disregard for something that the Supreme Court would rule. And that's why it's it's unprecedented in Israeli politics and in Israel's history. Yeah, this case is special because it involves the media. And in a nutshell, what we've seen is that the current Israeli Minister of Communication has been making many efforts to enforce more control and more influence by the government on Israel's both national media and commercial media. And this specific ruling has to do with the Committee of Commercial Media. In short, the government has said that because all sorts of members of this committee have dropped out over the past few months, it no longer recognizes the authority of this committee to regulate the Israeli commercial media. That's when the Supreme Court interfered a few weeks ago and said the government must adhere because that is our ruling. And that's when this week the government came out in a cabinet meeting, very, very clearly stating we will not respect the rulings of this committee and we do not recognize their authority. And that's why we have this week, for the first time again in Israel's history, a constitutional crisis being defined by some. And now President Hercog has said this is the crossing of a red line. And opposition leaders have said, you know, this is the government has fully gone criminal. That's being said by Yahilapid. And if Tali Bennett, another opposition leader, has, you know, made references to the destruction of the second temple, right? Uh, because of internal clashes. That's the big drama of this week. It's the first time that the government has actually said we will not respect a ruling by the Supreme Court. And again, it's around Israel's free media.

SPEAKER_01 3:33

So it sounds a little boring, but the really the issue, as you say, is that this is about the government being willing to disobey the High Court. When the government says that they will disobey the laws of their own country, then that's a constitutional

Israel’s Basic Laws Explained

SPEAKER_01 3:50

crisis. So as you know, Israel doesn't have a formal constitution. For those who know the history, Israel's Declaration of Independence did include a provision that the elected assembly would adopt a constitution. But in fact, it was Israel's first Prime Minister, David Ben Gurion, who argued that there was really too many things going on at the time. There was a mass immigration into the country, there was the war in 1948, and there was really the process of establishing all of these state institutions. My understanding is he didn't want to be limited or limit the new legislature by giving the judiciary too much power, which is often what happens when you have a formal constitution. So instead it was decided, instead of having a formal constitution, it was decided to have a set of basic laws which would be passed over time by a simple majority, 61 MKs out of 120, and that that would be sufficient to ensure the freedom of the parliament in a newly developing country. So the country therefore operates under really an unwritten or what they call a quasi-constitutional system. There are 14 individual basic laws, so they've all been passed separately, but actually they deal with many of the same issues that a constitution would deal with: fundamental rights, state powers, protection of citizen rights. But here we go. We fast forward 78 years, and the current government is looking to use this simple majority to make major changes to the Israel's democratic institution from the judiciary to oversight mechanisms like the media and as well as the Attorney General. As I said in the beginning, sometimes my head spins because there are so many spinning plates, I would say, when it comes to this issue. But let's try and focus on really three main democratic institutions.

What The Judicial Overhaul Changes

SPEAKER_00 5:47

So, yeah, so what we're seeing play out over the years of this current government is what certain people would define as a judicial overhaul, and others would define as a judicial reform, depending on if you are against it or for it. But basically, we're seeing a cluster of legislation that is being pushed very strongly by the government with the overall aim of limiting the power and the independent power of the judiciary. And this goes in a few vectors, right? We have the an idea of limiting the power of the judiciary to overturn laws. And there we have a law that, you know, would overturn the overturn. We have interference in the way that judges are selected. You know, the government wants more influence, and the coalition wants more influence on the selection of judges and wants to change the way that it's been done up until now. We have all sorts of, you know, tedious clauses that sound very judiciary, that sound very, you know, you have to go into deep explanations to understand them, but the overall arcing idea is to limit the power of the judiciary to interfere with the actions and the decisions made by the government and the Knesset and the coalition.

SPEAKER_01 6:50

Whether you call it a judicial overhaul or a judicial reform, in fact, has a lot to do with the media that you watch. There are some channels, the traditional channels in Israel, that have been very much against this package of legislation. They see it as authoritarian and as a threat to democracy. But then there is a channel,

Media Control And The Channel 14 Effect

SPEAKER_01 7:10

one TV channel called Channel 14, which really depicts it as sort of a restoration of the people's will. The thing to know about Channel 14, however, it is a new channel. It is set up as a pro-government TV channel to really compete with the other traditional channels which were less supportive of Netanyahu and his policies. As a result, Netanyahu does not interview for the other media channels and he only interviews on Channel 14. And what I think is problematic is it really doesn't fulfill the checks and balances role that media plays. So it is media, but it doesn't have that important role that media plays in democracy. Netanyahu-led governments have been trying to shift the media landscape in their favour, and we'll even come to how this fits into Netanyahu's trial. And that is because the leading news channel in Israel is still Channel 12, so the one that calls it a judicial overhaul and not a reform. That's still the main source of news for more than half of the Israeli public. And then Channel 14 comes in. I thought this was interesting. I saw some research that said 20% of Israelis use Channel 14 as their main source of news. And then a roughly a quarter of them also say they watch no other news channels. They're hardcore only bib. And I always see this number, this particular number come up. So this is probably what we call, you know, the hardcore base of Netanyahu. And he speaks to them through this media. What I think is interesting is that this process of changing the media landscape did not start with Channel 14. It started all the way back in 2007 with Israel Hayom, which was a newspaper which was introduced free of charge into the Israeli media landscape by what was then another Netanyahu ally, the Adelson family, Sheldon Adelson famously. It was a newspaper that was introduced in order to provide more pro-government, more pro-Netanyahu narrative. It never really had a profit or business model. It was really there for political influence and remained that way until they sort of fell out with Netanyahu, supported one of the opposition leaders, at least for a time, Naftali Bennett. And so that wasn't very, very useful to the government anymore.

SPEAKER_00 9:32

I think I want to elaborate on why the shift to Channel 14 has been so dramatic in Israeli public sentiment. Netanyahu has always perceived himself, and I'm talking, you know, 30 years back, as kind of a victim of the media. He's always perceived the traditional, what would what Trump would say legacy media as having a nonstop bias against him. And when he says him, he doesn't only say against myself, Netanyahu, but against all of my liquid voters. So when Channel 14 started airing, and I know this from you know very personal accounts, so many people who are Netanyahu supporters and so many people who support his narratives and his policies felt like they finally could turn on the TV and find a channel that resonates with their values, as opposed to, you know, listen to anchors who are always critical of Netanyahu and are always upset with his policies, et cetera, et cetera. And it goes deeper because Channel 14, for instance, doesn't broadcast on Shabbat. So finally, you know, a lot of people who are traditional or religious can associate with a channel that adheres to their values. We have anchors on this channel, you know, news anchors saying things like Babu Hashem, and really giving in to that sentiment that up until now truly hasn't had a place on the Israeli media landscape. And so much of what Netanyahu believes, and so much of what his supporters believe in this kind of underdog mentality that goes far, far back into the history of the Likud from the establishment of the state of Israel, is that you know that places like the legacy media and that places like the Supreme Court are these strongholds of old lefty thinking and of old lefty narratives. And so the push against the media and the push against the Supreme Court, they stem from the same base of narrative, of you know, of the people have chosen, the people have spoken, the people have time after time elected Netanyahu and elected right-wing governments. But now this government is being you know held and held back by the media, by the Supreme Court, because they don't support him.

SPEAKER_01 11:36

That is a fundamental misunderstanding of the role of the media in a democracy. I think you're correct that they believe that this is something that should be done. Miri Regev, who's a you know, one of the very high-up Liquid MKs, famously said about Khan, the public broadcaster, what's the point of a broadcasting corporation if we don't control it? So it might be true that it reflects potentially stories and values and personalities that were less represented on some of the other channels. But at the same time, there is no question that the government sees an attempt to be more controlling of the media as legitimate. I understand why governments all over would prefer that the media would be on their side, but

Netanyahu’s Press Strategy And Narrative

SPEAKER_01 12:20

that's not how it works. It doesn't work that way in Australia. You know, as I've mentioned before, you know, the government's the prime minister stands up in front of the cameras basically every day here to the media, gives very long press conferences that, you know, really stays around for most of the questions. And that really doesn't take place in Israel. So it's not just that the media is not there, it's also that the way in which the Prime Minister engages with the media is very, very different and shows a disdain for the functioning of checks and balances in a democratic society.

SPEAKER_00 12:53

And let me just jump off of that. You know, in the few times over the past few years that Netanyahu has stood and has held a press conference in front of the Israeli public and in front of the Israeli media, Channel 14 were always selected for the first question. Now, for the first few times this happened, they kind of brushed it off by saying it's random. Last few times, it's the new policy. Channel 14 gets the first question. Channel 14 is the only one that gets FaceTime with Netanyahu, and it's not just Netanyahu, it's many of his ministers are following this idea that only Channel 14 is a place to go to interview. Uh, at the same time, opposition leaders are also quite afraid of going to interview a Channel 14 because they know that, you know, they're gonna be washed.

SPEAKER_01 13:32

And I mean, media really matters in Israeli democracy, firstly because as we know, Israelis tend to be news junkies, but also because that is where people frame their understanding of election issues, of the public narrative, and as you've mentioned, that's the sort of conspiracy theories and you know the the speaking points that the government wants to go out with. So I wanted to talk about another democratic institution that's really been under attack since this government came into power and and probably before, and where that sort of the stories and the information and the misinformation is a very big part of the way in which this topic is presented to the public. And here I'm talking about the attorney

Why The Attorney General Is Targeted

SPEAKER_01 14:15

general. So I just want to start by making a clarification because we have an attorney general in Australia, but their jobs are a little bit different. In Israel, the Attorney General is there to represent the law. She's not the justice minister. In Australia, the Attorney General is elected as an MP, which is not the case in Israel, and there is no standalone justice minister anymore. In Israel, the Attorney General is appointed by the government, recommended by the Justice Minister, and also heads up the state prosecution service. But where it gets tricky is that they serve as the government's chief legal advisor, and their interpretations of the law are binding on the executive branch. So they're another area where they can limit government powers, and this is why there is so much friction in relation to the Attorney General. But can you tell me, Juval, because there has been sort of non-going attacks, it's almost incredible that she's still in her job after, you know, years and years of being attacked for her position and attempts to limit her position. Tell us a little bit more about why and how this attack on the Attorney General is taking place.

SPEAKER_00 15:21

Absolutely. So I think the current attorney general, Galiba Rav Mihara, which is by the way the first woman to hold this position in the history of Israel. And that's an important thing to note because it definitely did feeds into this whole narrative around her. I think she's probably the most famous person to hold this role ever, right? I think before her, yeah, name name name another attorney general.

SPEAKER_01 15:41

I can't think of one.

SPEAKER_00 15:42

Well, we've got, you know, we've got the famous attorney general who indicted who was all right with indicting Netanyahu. But she was appointed by the previous government. And that's why when this government was elected and formed a coalition and formed a government, they can't throw her out very easily. It's a whole judicial process and it's a whole, you know, it's a whole spiel. But it was so easy to frame her as a Trojan horse. And look, no one ever likes in the government the attorney general. Okay, the attorney general is always a pain in the ass for the government, whether they're you know right wing or whether they're left wing, right? Ministers want to push legislation, ministers want to, you know, push reforms, ministers want to go move quickly, and you know, and nobody ever likes a legal advisor, right? It's not just in the government. No, it's it's it's a pain, right? You have to slow down, you have to abide to certain laws, you have to, you know, look at all the different interpretations and the judicial interpretations. So for this government, it's been it's been so easy to frame any failure to push forward legislation on the attorney general. And that's been happening from minister to minister to minister in so many different fields, not just in the field of security or national interest. Every minister who can't push forward legislation, every minister who's failing in a certain extent blames the attorney general for it and says we have a Trojan horse in our government. And the rhetoric has become so violent, and she has become like the big demon for the Netzanyaho right-wing base. She has become the new person to blame for everything that's gone wrong.

Reform Or Overhaul And Who Buys It

SPEAKER_01 17:11

I want to talk about this, what I consider the falsity, that this is somehow a reform rather than an overhaul or redesign of the Israeli system. And it's really, for me, quite glaring. It doesn't matter what you call it, what news channels you watch. Reform is where you want to modernize something, you want to keep up with social expectations, and it is aimed at individual laws but not entire systems. So the most obvious argument is that if you're going after all of the democratic institutions, anything that holds the government to account, this is not a reform in the sense of improving the current system. This is about changing the system. And the objective in all cases is about moving more power to the government. There's no intention to put any of these issues to a popular vote, to a referendum, which I know is not common in Israel, but it does exist. So I'll give you an example of a very famous example of where it exists. The 2014 Basic Law, so another quasi-constitutional law, was passed, Netanyahu government, that mandates that any peace treaty or agreement that involves the withdrawal of Israeli sovereignty from territory where Israeli law has been applied, that is, East Jerusalem and the Golan Heights, must be put to a national public referendum or be passed by a supermajority of the Knesset, so 80 seats. So here's a situation where they made sure that a sort of key political issue could not just be passed by 61 MKs. And yet, when they want to make changes, fundamental changes to Israel's structure as a democracy, that they're really happy to put through, you know, with the simple majority. If this is the will of the people, then put it to the people. Don't just put it to an election. So why is it that people are actually supporting this overhaul when for me it's glaring that we're talking about an overhaul and not a reform?

SPEAKER_00 19:12

Well, not just for you, Shawan, for hundreds of thousands of Israelis who took to the streets the minute this overhaul began, because they really saw it as an overhaul. They saw it as a government making an illegitimate push against the, you know, the very basic democratic institutions of the nation. And we saw in Israel the largest protest movement in our history, with hundreds of thousands of Israelis out on the streets to fight this legislation. But let's speak about the hundreds of thousands of Israelis who are pro, who are pro-judicial reform and who call it reform and not overhaul. And I want to divide these people into two different groups, okay? We have the moderates, we have the kind of moderate voices who, within the maybe, you know, academic philosophical debate really do perceive the Israeli judiciary as overstepping. And they reference, you know, the fact that up until the 90s, it wasn't that much that dramatic. And then in the 90s, under the leadership of uh Justice Aharon Barak, the Israeli Supreme Court started taking a much more activist approach. And this is an approach that's you know, it's been studied all over the world. It's uh, you know, it's it's Israeli judicial activism and it's uh celebrated by some, but you know, demonized by others. And so the supporters of the reform would say what we're doing is just bringing things back to the way they were, bringing checks and balances back to you know uh a status quo that is more balanced, and after the imbalance that was created by, you know, this move in the 90s by Alwan Balak. And that argument hasn't just been made by Netanyahu's supporters, that argument has also been made by various people on the Israeli moderate right slash center, including, you know, Nastali Bennett, who was a you know spearheading the Israeli opposition right now, right? It's an argument that's been made for years before Netanyahu and probably will continue to be made after Netanyahu. So those are the kind of moderate supporters of the reform. But I also want to talk about the very ideological supporters of the reform. And these are people who, in a nutshell, hate the Supreme Court, really, really despise the Supreme Court. They see the Supreme Court as again a stronghold of left-wing thinking. They see the Supreme Court as tying the hands of the Israeli military and tying the hands of the Israeli government and you know, actively engaging in the protection of Palestinian rights, for example. And therefore, these are people who for years have been blaming the Supreme Court, for instance, for Palestinian terrorism. A very, very famous bumper sticker that I knew as a child in the early 2000s during the Intifada was Bhagats Mesaken Yehudim, right? Bagats, the Supreme Court, is dangerous for Jews. Why are people making this claim? Because Bhagac time after time interfered against Israeli military policy for collective punishment against the Palestinians, because Bhagats has spearheaded, you know, human rights as a value and democracy as a value over, you know, different cycles of Israeli legislation that tried to push back on those things. So you have the ideological base that really despite The Supreme Court and will do anything to limit their power.

Election Risks Plus Netanyahu’s Media Trial

SPEAKER_01 22:04

And what's happened with this constitutional crisis is very much tied into the fact that we're going into election. And I think the concerns are on a couple of fronts. One is that if the government is willing to disobey the High Court, is going into an election cycle, that they're basically setting the ground to say, we don't know if we will obey other rulings of the High Court. Usually during an election, there's an infinite number of rulings of the High Court in relation to little bits and legal challenges and all these things that will come up. So what happens if the government says, actually, we've already set a baseline that we won't always obey the rule of law? The second thing that happens when you go into an election cycle is that you're looking to who you're trying to bring into your voting pool. And I get the impression that Netanyahu's really doubling down on his coalition. So he's really going to go into this election, not trying to sweeten the policy for some of those sort of soft-right voters, which we've talked about in the past as being maybe quite critical for the election, really doubling down on the 25% liquid voter base and on his coalition. So the Kharidim and the far right. The coalition that currently exists, he's doubling down on that rather than trying to sort of expand his voter appeal ability. So it's not by chance that this is happening now. It's really about that, as you've mentioned, they're against us narrative, and that's where we're going to be going into the election with him, sowing that kind of chaos and confusion. But I also wanted to note that Netanyahu's trial, which is always going on in the background of everything, also offers an insight to his approach to media because one of the cases, case 2000, he's actually charged with fraud and breach of trust when he was trying to negotiate a quid pro quo with Yerior Achonot, which has always been the main Israeli newspaper. And the case is really about him trying to get favorable coverage in that newspaper. So this has always been his approach to the media is to use it, make it, you know, get it on his side.

SPEAKER_00 24:20

And let's just characterize Netanyahu for what he is. He's a media master. He always has been. And he's a media meteor. He rose to political power and to political dominance through his very unique and capable way to control narrative and to use the media for his advantage. So it's it it all it all really comes down to this.

SPEAKER_01 24:47

But let's just step back into where all of this sits in for us in Australia or in the diaspora.

Diaspora Lens Australia’s Guardrails

SPEAKER_01 24:54

So in Australia, we have a constitution which limits what the government do. I've never felt so safe in my life as I do now. The Australian's constitution requires any change to it to be passed by law first in the parliament and then by referendum. So that's sort of guard row number one for the separation of powers. But we also have a second chamber in our parliaments, federal and state. Sometimes one party holds the power in both very often not, but at least it provides a way in which the government would have to work often with parties that are unaligned or with other parties that represent other parts of the population. And I think that Israel is increasingly, certainly the current government is increasingly very upfront about the fact that it represents its own its voters nettos.

SPEAKER_00 25:43

I think it is worth mentioning, Sharon, that you know, both sides of this very heated debate over the judicial system feel like they are doing it for the sake of Israeli democracy, okay? Or at least that's what they're saying. All right. The supporters of the reform are saying, you know, Israeli democracy is out of balance, right? They're spearheading this agenda and they're spearheading this reform, you know, under that basis, that, you know, that the judges have got too much power and that, you know, democracy is the will of the people and the will and the will of the voter. And on the other side, of course, we have the people saying that, you know, the government is uh is going too far in that approach and that checks and balances must be in place for a flourishing democracy. We are not holding

War Pressure And Global Democratic Drift

SPEAKER_00 26:24

this conversation in a vacuum. We're holding this conversation while Israel is fighting a seven-front war. We're holding this conversation while Israel is fighting a seven-decade war and the conflict with the Palestinians. And and so these things always feed into the discussion. You can't have the discussion about Israeli democracy without introducing and understanding how the conflict plays out in this dynamic. And so much of the hatred and so much of the rhetoric that's been festering around the judicial system links back to issues of terrorism, links back to issues of safety, links back to hard-line Israelis who want a more aggressive and more dominant approach towards uh Palestinians and feel like the Supreme Court has gotten in the way of that. It's not disconnected.

SPEAKER_01 27:12

Israel is not the only liberal democracy that is going through a crisis. This is certainly something that is happening all over the world. But as you've noted, none have the security risks, the internal cultural differences, so Jewish population, Arab population, religious, secular, and these incredible fault lines that Israel has to navigate, which really makes it nothing less than a tinderbox at the best of times. I would imagine that the role of government and of leadership in such a complex reality would hardly be to turn up the temperature and throw lit matches at it. Turning Israel from a liberal democracy to an illiberal or electoral democracy, that is one that only holds election but does not protect civil liberties and unimaginably doesn't respect the rule of law, it's a creeping change from the Israel that I know and that many in the diaspora know. It doesn't happen overnight, but it does happen. The phrase death by a thousand paper cuts has never felt so pertinent. The assault on so many of Israel's democratic institutions, all of which have a role in oversight over the government, really leaves no room for doubt as to its intentions. As we go into this election cycle, these issues are really going to be the issues that come to the forefront in many different ways. It's not a separate issue. It is an issue that is involved in all of the other issues that we will be talking about here on Politica.

Recommendations And Sign Off

SPEAKER_01 28:42

Thank you for listening to Politica. Please give us a follow, subscribe wherever you're hearing our podcast. I highly recommend that you also tune in to the Jewish Independence Other podcasts. I've been listening to Tensions Transplanted with Rob Caldor and Izzy Otterberg, and I really recommend that to our audience. Until next time, keep the volume down.