Evelyn Gordon

Analysis from Israel

Although Israeli Prime Minister Benjamin Netanyahu was favored to win his Likud party’s leadership contest on Dec. 26, the magnitude of his victory surprised many observers. Despite his three indictments for corruption and his failure to form a government following two elections last year, 72 percent of primary voters chose him over a popular and respected challenger. To understand why, it’s worth examining a High Court of Justice ruling handed down the following week.

The court was asked by 67 academics, former defense officials and cultural figures to rule that due to the indictments, Netanyahu should be barred from forming the next government, even if Likud and its allies win the most Knesset seats in March’s election. The justices dismissed the petition as premature since the election results may render the question moot.

What they emphatically didn’t say, however, is that who the voters elect is none of their business, given that no existing law bars someone under indictment from forming a government, and the only relevant legislation implies the opposite: It requires serving prime ministers to resign if convicted.

Instead, by deeming the petition “premature” rather than non-justiciable, they made it clear that they would consider overturning the voters’ decision should the election results make the question relevant. Indeed, the ruling said so explicitly: The petition raises “an important issue of principle” that “touches on the principle of the rule of law, the integrity of elected officials and the public’s trust in government institutions … and therefore, there’s nothing to the respondents’ argument that the issue isn’t justiciable.”

Though I backed Netanyahu’s challenger in the primary, you shouldn’t have to be a Netanyahu fan to find this ruling shocking. The right to choose the country’s leadership in free and fair elections is the most fundamental democratic right of all. Thus the fact that the court considers itself entitled to overturn the voters’ choice without any authorization in law, merely because it disapproves of it, shows just how far Israel has slid down the slope from a democracy with a strong and independent court system to a judicial dictatorship. And while the primary predated this ruling, thousands of others over the past three decades have sent the same message.

Time after time, the legal system has vetoed elected governments’ policies not because they violated any law, but because the attorney general or the justices deemed them “unreasonable”—a decision actual democracies leave to the voters. Or contrary to some “right” that not only doesn’t exist in Israel’s Basic Laws, which the court (wrongly) treats as a constitution, but was explicitly omitted from them. Or contrary to “the fundamental values on which our system is based,” even when said values, like judicial supremacy, are diametrically opposed to the actual principles of Israel’s system of government (which, like its British model, is based on parliamentary supremacy).

Moreover, the legal establishment has a long and sordid record of submitting unwarranted indictments to oust ministers it dislikes. One particularly egregious example was Yaakov Neeman, who was forced to resign as justice minister in 1996 after being charged with perjury over minor mistakes in affidavits—like a date being given as 1992, rather than 1991—that he himself discovered, disclosed and corrected. As the trial court said in dismissing the case, indicting people for perjury over errors they voluntarily corrected would simply discourage others from admitting mistakes, thereby impeding the courts’ ability to discover the truth.

Thus it’s no surprise that only 55 percent of all Israeli Jews trust the Supreme Court, with a whopping 78 percent of rightists deeming it politically biased, while fewer than half of all Israeli Jews trust the attorney general. And this, judging by discussions with fellow Likud members before the vote, was a key issue in the primary.

Netanyahu didn’t win in a landslide because he has been an excellent prime minister, though most Likud voters (myself included) think he has. And he certainly didn’t win because Likud voters approve the behavior that led to his indictment; they find it repulsive, even if many doubt that it’s criminal (I’m in the minority in considering one of the indictments serious).

Rather, the most common argument I heard was simply this: “Ousting Netanyahu would mean letting them win.” In other words, Netanyahu the man no longer matters; he has simply become a symbol of the much larger struggle to regain the fundamental democratic rights that the legal establishment—the courts, the attorney general and the prosecution—has steadily usurped over the past three decades.

It may seem strange that voters should make their stand over a man facing serious indictments for corruption. But he has become the focal point of this battle precisely because the issue his case poses is so clear and simple: Do voters still have the right to elect whomever they please, even if their choice appalls other Israelis? Or can the legal establishment use indictments to overturn their choice of prime minister, even though that the law gives it no such right?

In fact, ironically enough, the charges against him actually increase Netanyahu’s value as a champion in this battle because they make legal reform vital to his own self-interest. Previously, many politicians, including Netanyahu himself, feared to enact legal reforms because the aforementioned false indictments frequently targeted those who, like Neeman, sought to do so. But now, curbing the court’s power is Netanyahu’s only chance of escaping jail; otherwise, even if the Knesset grants him immunity from prosecution, the court will certainly overturn its decision.

Anyone who claims to care about “the rule of law” and views Netanyahu’s potential election as a devastating blow to it ought to think long and hard about this: Millions of Israelis are willing to vote for a possible criminal because they see it as their only chance of curbing the legal establishment’s takeover of Israel’s democracy.

Had the courts not so consistently substituted their own will for that of the voters, Israel would never have reached this pass. And unless its excesses are curbed, the situation will only get worse, regardless of who wins the next election.

This article was originally syndicated by JNS.org (www.jns.org) on January 8, 2020. © 2020 JNS.org

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In Europe, Israel needs a bottom-up approach to diplomacy

For years, I considered Europe a lost cause from Israel’s perspective and decried the Israeli Foreign Ministry’s Euro-centric focus, arguing that it should instead devote more effort to places like Africa, Asia and South America, which seemed to offer better prospects for flipping countries into the pro-Israel camp. But the past few years have proven that Europe isn’t hopeless—if Israel changes its traditional modus operandi.

This has been evident, first of all, in the alliances that Prime Minister Benjamin Netanyahu has formed with several countries in eastern and southern Europe, resulting in these countries repeatedly blocking anti-Israel decisions at the European Union level. Previously, Israeli diplomacy had focused overwhelmingly on Western Europe. Netanyahu’s key insight was that conservative, nationalist governments seeking to preserve their own nation-states would have more instinctive sympathy for a Jewish state than the liberal universalists who dominate in Western Europe, and whose goal is to replace nation-states with an ever-closer European union.

But as several recent events show, even Western Europe isn’t a lost cause. The difference is that there, conventional high-level diplomacy won’t work. Rather, the key to change is the fact that most Europeans, like most people everywhere, don’t really care that much about Israel, the Palestinians or their unending conflict. Consequently, small groups of committed activists can exert a disproportionate influence on policy.

For years, this has worked against Israel because the anti-Israel crowd woke up to this fact very early and took full advantage of it. Take, for instance, the 2015 decision to boycott Israel adopted by Britain’s national student union. The union represents some 7 million students, but its executive council passed the decision by a vote of 19-12. Or consider the academic boycott of Israel approved in 2006 by Britain’s National Association of Teachers in Further and Higher Education (which no longer exists, having merged into a larger union). The association had some 67,000 members at the time, but only 198 bothered to vote, of whom 109 voted in favor.

Yet it turns out pro-Israel activists can use the same tactics, as in last week’s approval of a resolution saying anti-Zionism is anti-Semitism by the lower house of France’s parliament. The resolution passed 154-72, meaning that fewer than 40 percent of the National Assembly’s 577 deputies bothered to vote, even though 550 deputies were present earlier in the day to vote on the social security budget. In other words, most deputies simply didn’t care about this issue, which meant that passing the resolution required convincing only about a quarter of the house.

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