Analysis from Israel

Monthly Archives: August 2007

…and it was perpetrated not by Justice Minister Daniel Friedmann, but by the Supreme Court.

One particularly ugly aspect of the war between Justice Minister Daniel Friedmann and the Supreme Court is the depths of hypocrisy to which the justices have sunk.

Consider, for instance, former Supreme Court justice Dalia Dorner’s address to a conference at Jerusalem’s Van Leer Institute last week. “A constitutional coup is occurring in which the government is seizing control of the judiciary,” she proclaimed.

Another former justice, Yitzhak Zamir, added specifics. “The justice minister began unilaterally, without consulting [the justices],” he complained. And: “[Judicial] independence requires the minister to waive his powers to appoint [court] presidents and deputy presidents; Minister Friedmann must withdraw his proposal to appoint search committees [for these appointments].”

Given that thus far, Friedmann has succeeded in effecting exactly one minor change – term limits for court presidents – quite how the government is “seizing control of the judiciary” is unclear. Even more outrageous, however, is the claim that when ministers and legislators actually do their constitutionally mandated jobs, this constitutes a “constitutional coup.”

THE BASIC Law: The Judiciary, for instance, lists various issues on which the Knesset must enact legislation – including the appointment of court presidents. Thus when the Knesset enacted Friedmann’s term limits proposal into law, it was exercising an authority mandated by the Basic Law, which the Supreme Court itself considers constitutional legislation.

Nor did Friedmann exceed his authority by proposing the bill: The cabinet is authorized to propose legislation on any issue. Yet in Dorner’s Orwellian universe, these exercises of constitutionally mandated authority constitute a “constitutional coup.”

Similarly, by law, only the justice minister can appoint court presidents (after consulting with the Supreme Court president); Friedmann’s search committees are meant to help him exercise this legally mandated authority more wisely. Moreover, the court itself has ruled repeatedly that a minister may not abdicate responsibility for decisions entrusted to him by law.

Yet in Zamir’s Orwellian universe, what Friedmann ought to do is violate the law – as previous justice ministers did – by ceding his legally mandated responsibility to the Supreme Court president.

Likewise, under existing constitutional law, the one branch of government with no role in the legislative process is the judiciary. Thus by refusing to consult the justices about legislation, Friedmann was honoring the constitutionally mandated separation of powers between the branches of government. Yet in the justices’ Orwellian universe, proper behavior means disregarding such constitutional niceties.

THE ABOVE examples, however, are only the tip of the hypocrisy iceberg – because, as MK Reuven Rivlin correctly told the conference, a constitutional coup actually has occurred. And it was perpetrated not by Friedmann, but by the Supreme Court.

In 1949, shortly after Israel’s establishment, elections were held for a body that would serve as both a constitutional convention and the first Knesset. In 1950, that body decided that the constitution should be enacted piecemeal, with each subsequent Knesset retaining the original’s constitution-making powers; that decision was never revoked.

To this day, therefore, the Knesset is the only body authorized to enact constitutional legislation.

Yet in 1992, then Supreme Court president Aharon Barak proclaimed a “constitutional revolution.” Two newly enacted Basic Laws, he declared, were not only constitutional legislation; but for the first time, they empowered the court to overturn ordinary Knesset legislation.

Given that the laws passed by votes of 23-0 and 32-21, respectively, their constitutional status is dubious: No other democracy has a “constitution” approved by a mere quarter of the legislature. Moreover, not only did neither law explicitly empower the court to overturn legislation, but an article that would have done so was removed during the Knesset’s deliberations – leading many MKs who voted for the laws to conclude that they did not confer this power.

Thus Barak’s “constitutional revolution” was essentially a judicial rewrite of the existing constitution, with no mandate from the only body authorized to make such amendments: the Knesset.

BUT NOT content with this, the court has since usurped an even more basic Knesset function: the power to enact constitutional legislation. Since 1948, for instance, the Knesset has considered – and rejected – no fewer than 15 proposed Basic Laws on “social rights,” such as employment or welfare. One such bill was voted down at the very same time as the 1992 Basic Laws were enacted; four others have been proposed and rejected since. Thus clearly, the Knesset (a) does not believe that the 1992 Basic Laws encompassed social rights, and (b) does not want to confer such rights.

Yet in 2004, the court ruled that one of the 1992 laws, Human Dignity and Liberty, did grant constitutional status to social rights, such as the “right” to a court-ordered minimum welfare allowance. In short, it not only created a new constitutional “right” without Knesset authorization, it created one that the Knesset had explicitly rejected. It thus effectively declared that the Knesset has no role in the constitutional process at all: It is not needed to enact constitutional legislation, and may not even prevent the court from doing so.

NOR WAS this a one-time aberration. In 2006, for instance, a majority of the court added two more “rights” – equality and the right to marry – to Human Dignity and Liberty, even though the Knesset, due to lack of consensus, had deliberately excluded these rights from the law. In short, to quote Rivlin, “the judge has replaced the legislature and made it superfluous.”

Rivlin also correctly identified the proper remedy: The Knesset must enact a Basic Law “that delimits clear boundaries to the powers of each branch [of government] and [determines] when the Supreme Court may interpret the constitution, the limits to court intervention and when legislation must be enacted by the sole representative of Israel’s sovereign [citizenry] – namely, the Knesset.”

And that, in a nutshell, is the real problem with Friedmann’s initiatives: Despite much grandiose talk about doing precisely that, in practice, he has moved forward only on trivial issues such as search committees and term limits for court presidents. And he has thereby allowed the real constitutional coup – the judicial one – to continue unchecked.

There are no grounds for viewing the southern Sudanese as true asylum-seekers.

Two months ago, I thought that Ehud Olmert had finally made the right decision about something. I should have known better.

When Olmert announced in late June that, henceforth, African migrants who infiltrated from Egypt would be sent back there, he explicitly declared that refugees from Darfur, but only Darfur, would be exempted from this policy. That enraged people such as Jerusalem Post columnist Larry Derfner, who argued that Israel should also take in other Africans, like the southern Sudanese.

Yet, in fact, the policy as stated made an eminently proper distinction between refugees in genuine need of asylum and economic migrants. The genocide in Darfur, which has thus far killed anywhere from 200,000 to 400,000 people (estimates vary widely) and displaced more than 2 million, shows no signs of abating; Darfurians cannot safely return to their own country and are thus textbook examples of genuine refugees.

In contrast, the civil war between northern and southern Sudan ended in January 2005, and refugees have since been returning to the south: According to the UN High Commissioner for Refugees, some 157,000 southern Sudanese refugees have thus far been voluntarily repatriated, and there have been no reports of them suffering violence or persecution.

CERTAINLY, the southern Sudanese suffered terribly during the 22-year civil war, which killed some two million people; one can therefore understand why many fear that the fragile peace will not hold, or are reluctant to return to devastated villages. But the fact remains that, so far, the peace has held and refugees are being successfully repatriated. Thus there are no grounds for viewing the southern Sudanese as genuine asylum-seekers.

Given that Israel’s capacity to absorb refugees is not unlimited, anyone who truly cares about human rights should support a policy of reserving this capacity for those in genuine need, like the Darfurians, rather than squandering it on those, like the southern Sudanese, who have the option of returning home.

Granted, Israel is nowhere near the limits of its absorption capacity now, but the pace of infiltrations has recently increased dramatically, from several dozen a month to several dozen a day; at this rate, some 15,000 Africans would enter from Egypt every year. Thus if Israel does not start making distinctions now, it is liable to find itself turning away genuine refugees later because it has already absorbed too many non-refugees – and once accepted, these non-refugees cannot then be forced to leave.

OLMERT’S DECLARED policy of accepting Darfurians only therefore made sense. There was only one problem: It turns out that he did not mean a word of it. On Sunday, Israel returned its first 48 infiltrators to Egypt. And according to the IDF, most were Darfurians.

Then, in response to the outcry by local human rights organizations, Olmert’s office explained that his pledge to accept Darfur refugees applied only to the approximately 500 who were already here. All new arrivals from Darfur would be promptly returned to Egypt.

This is unconscionable by any standard.

First, the Darfurians are indisputably genuine refugees. Second, there are serious reasons to doubt their safety in Egypt. Not only did IDF cameras film Egyptian security forces gunning down Sudanese migrants near the border earlier this month, there have been persistent reports about Egypt deporting Darfurians back to Sudan, where they are clearly in danger. Just this Sunday, for instance, Egyptian police told the Associated Press that the Darfurians Israel expelled would be returned to Sudan.

THIRD, WHILE reasonable people can certainly disagree about where the limit of our refugee absorption capacity lies, no reasonable person could set it at a measly 500 people, as Olmert has. Israel employs some 100,000 legal foreign workers and at least about another 100,000 illegals; many of these workers also have spouses and children. Thus it could clearly absorb tens of thousands of refugees just by using them as replacements for foreign workers.

Granted, not every foreign worker could be replaced with a refugee; some have specialized skills that the refugees lack. But there are 29,000 legal foreign workers in agriculture alone; these could certainly be replaced with Darfurians, most of whom were farmers back in Sudan. A pilot program to employ Sudanese refugees in Eilat hotels also proved successful; refugees could thus replace foreign workers in other hotels as well.

Kicking out foreign workers to make room for refugees is not cost-free: Most foreign workers come from friendly countries such as Thailand and the Philippines, and expelling them would clearly strain these bilateral relationships. That is not something the government should do lightly, which is another reason why a “genuine refugees only” policy makes sense. Expelling economic migrants from friendly countries merely to absorb economic migrants from hostile countries, such as the southern Sudanese, would be sheer insanity.

But deporting genuine refugees to Egypt might well have even worse diplomatic consequences: Such callousness tarnishes the country’s image throughout the democratic world, and also among the international Jewish community, which, to its credit, has been at the forefront of efforts to help the Darfur refugees.

EVEN WERE there no pragmatic arguments in favor of absorbing refugees, the Jewish state – homeland of a people that knows only too well what it is like to flee genocide and find every door closed – cannot ignore the moral imperative of saving lives. But the fact that this is one of those rare occasions when self-interest and morality go hand in hand makes Olmert’s decision to absorb a mere 500 Darfurians doubly unconscionable.

Fortunately, other Israelis seem to understand this. Just three weeks ago, for instance, a resolution demanding that Darfurians not be deported received rare across-the-board support in the Knesset. It was signed by 63 MKs, an absolute majority, representing every political party in the legislature. Thus there are grounds for hope that public pressure could force Olmert to reverse his disgraceful decision.

However, that will only happen if such pressure is applied strongly and consistently. The 63 MKs who signed the petition must now prove that they stand behind their words, and start turning up the heat.

The world must begin to challenge the Arab refusal to acknowledge Israel’s right to exist.

There is often more truth about the Arab-Israeli conflict in articles on unrelated subjects than in articles about the conflict itself.

Consider, for instance, an item on mapmaking that appeared in the International Herald Tribune two weeks ago. In it, the owner of an Italian company that makes globes discussed issues such as whether Cyprus should be drawn divided or united (most countries do not recognize the island’s de-facto division) and whether the gulf between Iran and Saudi Arabia should be named the Arabian or the Persian Gulf.

Then, in one throwaway sentence, the article hit on the real cause of our conflict: “And in much of the Arab world, Israel is nonexistent.” Arab governments and educational institutions insist that their maps and globes eschew all mention of a country called Israel, and mapmakers obediently comply.

IT IS HARD to think of another interstate conflict in which one country refuses even to acknowledge the other’s existence. Indian and Pakistani maps, for instance, show their disputed border in different places, but both include an entity called “India” or “Pakistan.”

Neither American nor Soviet maps ever failed to depict the rival superpower during the Cold War. Israel’s maps show Syria, a country with which it has been at war since its birth, as well as Iran, whose president routinely vows to wipe it off the rest of the world’s maps as well.

But in the Arab world, even a depiction of Israel within its pre-1967 armistice lines is anathema.

Fifty-nine years after Israel’s establishment, the Arab world is still not prepared to accept the Jewish state’s existence. It continues to dream that Israel will somehow disappear, and that dream is transmitted to successive generations through its maps.

After all, a map reflects what its maker or commissioner deems the “correct” picture of the world. And the “correct” Arab picture of the world is still one where the Zionist entity does not exist.

THIS SAME truth was offhandedly acknowledged in a recent New York Times article on another unrelated subject: the possibility of partitioning Iraq. The article cited a column that ran last year in the Dubai-based Gulf News, entitled “Partitioning Iraq: No Starter.” In it, author George Hishmeh, a former writer for the US Information Agency, explained that one reason the idea is a nonstarter is that the very word “partition” has “an ugly ring in Arab ears, especially after what happened in Palestine in 1948” – i.e., the UN partition plan that paved the way for Israel’s establishment.

In other words, 59 years after Israel’s creation, the idea of partition is still so taboo in the Arab world that it cannot even be considered in the completely unrelated context of Iraq. How likely is it, then, that the Arab world is ready to accept the “original sin” – partition of the land between the Jordan River and the Mediterranean Sea into two states, one of which would be Jewish?

Diplomats tend to dismiss such indications of Arab sentiment as unimportant, insisting that the “real” Arab position is reflected in documents like the Arab peace initiative adopted by the Arab League in 2002 and reaffirmed by an Arab League summit this year. Yet in fact, the Arab peace initiative is completely consistent with the vision shown on Arab maps; diplomats simply prefer to overlook this inconvenient truth.

THE DOCUMENT states explicitly that one condition for peace is “a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194.” And the Arab world’s consistent interpretation of this resolution, ever since its adoption in 1948, has been that it mandates a “right of return” for all refugees and their descendants – currently some 4.3 million people, according to UNRWA – to pre-1967 Israel.

Nor does the resolution’s text preclude this interpretation (though it also admits other interpretations): It states that “refugees wishing to return to their homes… should be permitted to do so at the earliest practicable date.”

Currently, Israel’s population of about 7.1 million includes 1.4 million Arabs and 5.4 million Jews. It is not hard to realize that the addition of 4.3 million refugees and their descendants – or even a sizable fraction thereof – would turn Israel from a Jewish-majority state to an Arab-majority or binational state. In other words, the Jewish state would cease to exist, even if the name “Israel” remained on international maps.

Here, too, the standard diplomatic response is simply to pretend that the problem does not exist: that this does not reflect the “real” Arab position; it is merely a negotiating tactic.

Unfortunately, such assumptions have proven unfounded in the past – as they did at the Camp David summit in 2000 and the subsequent Washington and Taba talks in 2001. Then, too, the working assumption was that Yasser Arafat’s stated positions, such as his insistence on the “right of return” and his refusal to acknowledge any Jewish link to the Temple Mount, were mere negotiating tactics. Yet in practice, according to then foreign minister and chief Israeli negotiator Shlomo Ben-Ami, the Palestinians – not only Arafat, but also the current “great white hope” of the peace process, Mahmoud Abbas – proved unwilling to budge from these positions.

PEACE, ACCORDING to the cliché, is made with enemies. But it cannot be made with an enemy that refuses to acknowledge your right to exist. That is the real root of the conflict, and until it is resolved, no amount of territorial concessions will make any difference.

Yet it will never be resolved as long as the international community insists on sweeping it under the rug. Thus if the world truly wants the Arab-Israeli conflict settled, it must begin challenging the Arab refusal to acknowledge Israel’s right to exist wherever and whenever it comes up – from the public refusal by heads of state to abandon their demand for a “right of return” to the lowly globes that are teaching a whole new generation of Arab schoolchildren that the Jewish state does not, should not and, if God is kind, someday will not exist.

If the world wanted actual progress rather than the mere illusion of momentum, it would have to address Palestinians’ twin addictions.

To understand just how surreal all the talk of Israeli-Palestinian diplomatic momentum is, two recent polls suffice.

One is the latest Peace Index poll, published this week, which found that for the first time in years, a majority of Israeli Jews oppose a broad West Bank withdrawal, even under an Israeli-Palestinian peace treaty. Asked whether they would quit the entire West Bank, except the settlement blocs, for such a treaty – something most Jewish Israelis previously supported – 53 percent said no; only 42 percent said yes.

The other is the latest Pew Global Attitudes poll, published two weeks ago. It found dramatic, almost across-the-board drops in Muslim countries’ support for suicide bombings. Only 34 percent of Lebanese, for instance, backed such bombings, down from 74 percent in 2002; in Jordan, the figure fell from 43 to 23 percent. Indeed, in 15 of the 16 Muslim countries surveyed, majorities deemed suicide bombings rarely or never justified. The sole exception was the Palestinian Authority – where a whopping 70 percent considered suicide bombings sometimes or often justified. Only 6 percent of Palestinians said they were never justified.

Obviously, these polls are closely connected: It is precisely because Palestinian enthusiasm for murdering Jews remains undimmed after 14 years of “peace process” that Jewish Israelis have stopped believing territorial concessions will bring peace.

This process has included five signed agreements in which Palestinians pledged to halt terror, Israeli withdrawals from all of Gaza and parts of the West Bank, the complete dismantling of 25 settlements and Israel’s offer of Palestinian statehood on about 95 percent of the territories, including east Jerusalem and the Temple Mount. Yet not only has none of this dampened Palestinian enthusiasm for killing Jews; it has stoked it.

For Israelis, every stage of the “peace process” has produced less actual peace. In the two and a half years following the 1993 Oslo Accord, Palestinians killed more Israelis than during the entire preceding decade. In the four years following Ehud Barak’s statehood offer at Camp David in 2000, Palestinians killed more Israelis than during the preceding 53 years. In 2006, the first full year following the August 2005 disengagement, the number of rockets launched from Gaza at pre-1967 Israel more than tripled compared to 2004 (the last full year pre-disengagement).

IN SHORT, the Palestinians have used every bit of territory they received as a launching pad for more attacks on Israelis. Moreover, they have sacrificed their own economic well-being to do so: In response to this escalating terror, Palestinian workers were barred from Israel, formerly their main employer; other Israeli defensive measures, such as checkpoints and border closures, have strangled internal and external Palestinian commerce. Consequently, Palestinian gross domestic product plummeted while unemployment soared. Yet as the Pew poll shows, none of this dampened Palestinian enthusiasm for suicide bombing. Economic distress is evidently a price they are willing to pay for the privilege of killing Israelis.

Thus the astonishing thing is not that Israelis have concluded the obvious: that more territorial withdrawals would merely create more launching pads for terror, no matter what the Palestinians promise, and that quitting most of the West Bank would therefore be suicidal. The astonishing thing is that it took them 14 years to do so. It is a testimony to Israelis’ desperate longing for peace that they ignored the evidence for so long.

BUT THE talk of diplomatic momentum becomes, if possible, even more surreal when another issue is considered: the refugees.

Israel’s one nonnegotiable condition for a final-status agreement is that Palestinian refugees and their descendants not relocate to Israel. Yet in 14 years of “peace process,” successive Israeli retreats on other issues (borders, Jerusalem) have yet to produce even a hint of reciprocal Palestinian concessions on this issue.

Professional peace processors blithely declare this adamancy a mere negotiating tactic, not the “real” Palestinian position. Ordinary Palestinians, unfortunately, are still not in on this secret: Polls consistently show large majorities opposing any concession on the “right of return.” But last week, for the first time, an actual test case arose: Israel agreed to allow 41 Palestinian refugees from Iraq into the PA if they turned in their UN refugee cards, thereby declaring their refugee status ended.

This was supposed to bolster the Mahmoud Abbas-Salam Fayad government: Palestinian Iraqis, whose support for Saddam Hussein made them loathed by other Iraqis, suffered greatly after Saddam’s fall; thus Abbas, Fayad and Ehud Olmert all naively concluded that the Palestinian public would applaud an asylum offer for their wretched countrymen.

Instead, Abbas and Fayad were assailed for this deal – not only by Hamas, but also by senior members of Abbas’s own Fatah party, the Fatah-controlled Palestinian press and smaller Palestinian factions. Why? Because, opponents explained, he forfeited these refugees’ “right of return” to Israel.

Against this backdrop, the recent talk by Olmert, Abbas and Condoleezza Rice about concluding a “framework document” of “agreed final-status principles” before this fall’s international peace conference cannot be defined as anything but surreal.

These principles, as all veteran peace processors agree, must include an Israeli withdrawal from most of the West Bank, which most Jewish Israelis oppose; a Palestinian halt to anti-Israel terror, which most Palestinians oppose; and a concession of the “right of return” for 4.4 million Palestinians (UNRWA’s figure), which Abbas cannot even concede for 41 wretched Iraqi refugees without a public outcry. Even in the unlikely event that Olmert and Abbas actually sign such a document, how, under these circumstances, would it be worth even as much as the paper on which it is printed?

If the world wanted actual progress rather than the mere illusion of momentum, it would have to address Palestinians’ twin addictions: to murdering Israelis (which turns Israel against territorial withdrawals) and to the “right of return.” Unlike “framework documents” and international conferences, that would actually contribute to solving the conflict. But it would produce no instant photo-ops; the fruits would be reaped only years later.

And given a choice between genuine progress and a photo-op, Olmert, Abbas and Rice evidently prefer the latter.

The Supreme Court inserts itself where it shouldn’t.

One cannot blame Supreme Court justices for being as outraged as other Israelis by former president Moshe Katsav’s plea bargain. But unlike ordinary Israelis, the justices cannot express their views without influencing the outcome of the case. Thus by agreeing to hear several petitions against the plea bargain, the court has undermined one of the key values it is sworn to uphold: the right to a fair trial.

As Justice Minister Daniel Friedmann aptly noted, even the initial hearing was highly prejudicial: Given the justices’ harsh comments about the deal during that session, it would have been difficult for any lower court to then approve it, even had the justices ultimately rejected the petitions on procedural grounds: that deciding whether or not to accept a plea bargain is – as the law in fact states – the trial court’s job.

But by issuing a show-cause order, which indicates that they intend to decide the petitions on their merits, the justices have made the situation infinitely worse.

Should they ultimately reject the petitions on the grounds that the deal is not so unreasonable as to justify their intervention, this would prejudice the ability of the petitioners, who include two of Katsav’s alleged victims, to obtain a fair hearing in the trial court. In theory, a trial court is free to reject any plea bargain, whereas the High Court of Justice may overturn an attorney-general’s decision only if it is extremely unreasonable. Yet in practice, no lower court would overturn a bargain that the High Court has approved.

Given the justices’ comments to date, however, it seems far more likely that they will ultimately accept the petitions. If so, Attorney-General Menachem Mazuz would essentially be forced to charge Katsav with raping one former employee and committing lesser sexual offenses against another, as these are the two aspects of the plea bargain that the court has castigated during the hearing: the absence of rape charges and the lack of any charges at all relating to the second employee.

Yet once the nation’s highest court has ordered Katsav’s indictment, it would be very hard for any trial court to hear the evidence fairly and acquit him if warranted. After all, Mazuz’s main reason for not indicting Katsav on these counts was his belief that the evidence failed to provide a reasonable chance of conviction, which is the standard test of whether to indict. Thus no matter how strongly the court stresses in its ruling that the evidence is only prima facie, and does not necessarily prove Katsav’s guilt, the fact remains that by overturning Mazuz’s decision, it is essentially declaring that it considers the evidence strong enough to provide a reasonable chance of conviction. And after that, how could any lower court presume to disagree?

JUST HOW strongly High Court intervention can affect a trial court is evident from the rare precedents in this area.

In 1990, for instance, the High Court overturned then attorney-general Yosef Harish’s decision not to indict a group of senior bankers whose share manipulations caused a severe stock market crash in 1983. The case therefore went to trial, and after what was then one of the longest and most expensive trials in Israel’s history (two and a half years and an estimated $30 million), the trial court duly convicted the bankers and sentenced them to prison. But the bankers appealed – whereupon that same Supreme Court that had ordered their indictment overturned a key element of the conviction and threw out their jail sentences.

Similarly, in 1989, the court overturned the attorney-general’s decision not to indict Yediot Aharonot‘s editor-in-chief and one of its reporters for violating the sub judice laws. A trial court duly convicted them. Yet they, too, were acquitted on appeal.

What is clear from both cases is that when the High Court orders an indictment, it is very hard for the trial court not to feel an obligation to convict – even though the High Court, unlike the trial court, has not examined the evidence in depth or heard witnesses. This clearly undermines the defendant’s right to a fair trial. And even if, as in both these examples, the defendant is fully or partially acquitted on appeal, it will have taken him additional years in court, and additional thousands, or millions, of shekels in legal fees, in order to obtain a verdict that he might have been able to obtain the first time around with an unprejudiced trial court.

MOREOVER, IT is far from clear that such court-ordered indictments serve the public interest. Any trial consumes court time and public funds, both of which are in short supply. That is precisely why prosecutors try not to waste either commodity on cases that they do not deem to have a reasonable chance of conviction. And a Katsav trial would assuredly be both lengthy and expensive. Thus if Mazuz – who, unlike the justices, has examined the evidence in depth – truly considers it insufficient to convict Katsav on serious charges, he is right to save the time and money by signing a plea bargain on minor charges.

Clearly, the complainants have as much right to a fair hearing as Katsav does. Yet their right would in no way have been compromised had the High Court refused to hear their petitions: They could have raised the same arguments in the trial court that considered the plea bargain, and had that court rejected the deal, Mazuz would still have been forced to either go to trial or reopen negotiations on a bargain less favorable to Katsav.

The right to a fair hearing is a fundamental component of any justice system worthy of the name. But by choosing to rule on the plea bargain themselves rather than leaving the decision to the trial court – where by law it belongs – the justices have irremediably undermined one or the other of the parties’ right to due process, regardless of how it ultimately rules.

Somehow, one would expect better from our self-proclaimed guardians of the rule of law.

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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