Analysis from Israel
It seems as if whenever a reform-minded minister is appointed he finds himself under police investigation.

The day after Ehud Olmert nominated Daniel Friedmann as our new justice minister, Haaretz published a front-page column by its political analyst, Yossi Verter. After describing the legal system’s horror at having a harsh critic like Friedmann in this position, Verter wrote that the system “has two alternatives for coping with this blow: hunkering down in its bunker and waiting for the government to change, or speeding up criminal proceedings against Olmert and working with greater vigor to topple him, which would also bring about Friedmann’s departure.”

The next day, the paper’s editorial cartoon echoed this suggestion. It showed Supreme Court President Dorit Beinisch telling Attorney-General Menahem Mazuz, as a clerk brought in files on the various investigations against Olmert, “let’s have another look at those files.”

Both column and cartoon sent the same message: A major Israeli paper sees nothing implausible – or disturbing – in the idea of our “apolitical” legal professionals abusing their control of the criminal justice system to oust a politician whose policies they oppose.

That same week, Haaretz columnist Ari Shavit revealed that mainstream politicians find this idea equally plausible – though certainly not undisturbing. Shavit reported that 12 hours before the kiss that led to his conviction on indecency charges, then justice minister Haim Ramon told guests at a private dinner that “something was liable to happen to him, because something has happened to every justice minister who intended to shake up the legal system… something that ultimately prevented the minister from filling this post.”

And Ramon was brimming with proposed reforms, including many opposed by the legal establishment.

Shavit also reported a private conversation with a “senior minister” whose “lifelong dream” was to become justice minister, but decided not to seek the post for fear that if he did, “he would shortly find himself questioned under caution in a police investigation.” The minister, wrote Shavit, was convinced that no critic of the legal establishment could serve as justice minister without said establishment “finding a way to remove him… on some criminal pretext or another.” That such suspicions have become so widespread – not only among the system’s critics, but even among ardent defenders such as Haaretz – is a damning indictment of the legal establishment’s behavior. And indeed, the establishment has provided fertile ground for such suspicions.

IN LAST week’s column, I discussed several outrageous elements of the case against Ramon. But Ramon at least did something that could conceivably (though hardly necessarily) justify an indictment. Others have been ousted with far less justification – such as Rafael Eitan, who was denied the then Police Ministry by an indictment, but completely cleared in court.

A particularly egregious example was that of former justice minister Yaakov Neeman. Upon his appointment in 1996, full of plans for reforming the system, a journalist petitioned the High Court and alleged that in 1992 then attorney Neeman tried to suborn a witness. The police and prosecution had known of this allegation for four years, but never bothered investigating it, because there was no case: It rested on a single policeman’s claim that the witness had told him so, which the witness (and Neeman) denied. But with Neeman having become justice minister, then attorney-general Michael Ben-Yair suddenly decided that there was “no choice” but to investigate.

The probe, predictably, produced no evidence of subornation. But instead, then state prosecutor Edna Arbel (Ben-Yair having meanwhile recused himself) indicted Neeman for perjury and obstruction of justice, thereby forcing him to resign.

The charges stemmed from minor errors in Neeman’s submissions to the court and the police – such as a certain date being given as July 22, 1992 rather than July 22, 1991 – which Neeman himself discovered, disclosed and corrected. As the trial court wrote in a blistering verdict nine months later, not only was such an indictment utterly baseless, but if allowed to stand, it would undermine future investigations by making people fear to correct honest errors lest they face perjury charges. By then, however, someone else was already firmly ensconced in the Justice Ministry.

And what of Arbel, who successfully ousted Neeman by concocting this baseless indictment? She was rewarded with a Supreme Court appointment – thereby conferring the legal system’s ultimate seal of approval on her abuse of power and encouraging her successors to follow suit.

WHEN SUCH dubious criminal proceedings are used to oust ministers whose policies are opposed by the legal establishment, this is essentially a putsch against the elected government by unelected policemen, prosecutors and judges. It also severely undermines public faith in the legal system: If policemen, prosecutors and judges use their positions to pursue their own political agendas, why should investigations, indictments and verdicts have more credibility with the public than any other political document?

Faith in democracy and faith in the legal system are the twin glue that enables fractured societies to live together, because the ballot box and the courts are the only two means of peaceably resolving disputes. Abusing criminal proceedings to alter the outcome of the democratic process destroys both: democratic elections become pointless, because officials whose policies upset the legal system will be ousted before those policies can be enacted; and the courts become worthless, because they are viewed as political actors rather than impartial arbiters.

The legal system’s response to this problem has been to declare that if only people would stop undermining public faith in the system through criticism, none of these negative consequences would arise. But as Abraham Lincoln famously said, you cannot fool all the people all the time. The public is quite capable of observing the system and drawing its own conclusions – and that process is evidently occurring now.

When even longtime defenders of the system view politicization of the legal process as eminently plausible, the problem has become too severe to be papered over with mere rhetoric. What is needed is a genuine change in the system’s behavior, and soon – because before long, there may be no public trust left to salvage.

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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