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.

Subscribe to Evelyn’s Mailing List

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.

Read more