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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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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