by Caroline Glick
All aspects of public life in Israel today are dictated by the attorney general and the Supreme Court, which have devoured the powers of the Knesset and the government.
In a week and a half, Israel’s polling stations will open and
Israelis will elect their representatives to the Knesset for the fourth
time in two years. As was the case in the last three elections, the
upcoming elections revolve around one issue – Israel’s legal fraternity.
All aspects of public life in Israel today are dictated by the
attorney general and the Supreme Court, which have devoured the powers
of the Knesset and the government. Over the years, the legal fraternity
has acted through judicial and bureaucratic fiat to cancel the checks
and balances on its power. Today, the attorney general and the court
justices determine their own powers. Not surprisingly, as far as both
are concerned, their powers are unlimited.
Whether the issue is deciding who is a Jew, public funding of
cultural institutions, public health policy, land use, economic
priorities, open fire orders, immigration policy, counter-terror
policies, or other questions from the mundane to the existential, the
only decision makers in Israel are the attorney general and the Supreme
Court justices. Elected leaders are at best, advisors.
To preserve and protect their powers, the attorney general and the
justices have the state prosecution. The attorney general’s role as head
of the state prosecution gives him the power to strike terror in the
hearts of Israel’s elected leaders. They know that he holds the power to
open criminal probes against them whenever he wishes. The very
existence of this threat generally suffices to convince a majority of
politicians to keep their heads down and loudly extol the “rule of law” –
that is, the unlimited power of state lawyers – as the guardian of
Israeli democracy. Politicians who have spoken out against the legal
supremacists have invariably paid the price.
This brings us to Prime Minister Benjamin Netanyahu. Although
substantively, every election since April 2019 has revolved around the
unchecked powers of the legal fraternity, the media have presented the
elections as referendums on Netanyahu.
While the pronouncement is a distortion of reality, it isn’t entirely
ungrounded. It is not Netanyahu’s record that is being judged. As far
as the anti-Netanyahu media are concerned, the less his record of
achievement is discussed, the better.
Rather, the media is able to cast Netanyahu as the central issue of
the elections because he is the current target of the legal fraternity’s
continued efforts to seize all governing powers from Israel’s elected
leaders. Every pathology of the legal fraternity’s unchecked powers is
present in the campaign it is waging against Netanyahu. Attorney General
Avichai Mendelblit is waging an unlimited war against Netanyahu because
he recognizes that Netanyahu’s political fortunes will determine the
legal fraternity’s future. If Netanyahu prevails, the legal fraternity
will be stripped of its unchecked power. If he is defeated, the
fraternity’s control over the country will be institutionalized.
Netanyahu’s opponents on the Right don’t see things this way. Both
Yamina chairman Naftali Bennett and New Hope Party chairman Gideon Sa’ar
insist there is no connection between the legal fraternity and its war
against the premier. Both men claim to support comprehensive legal
reform and both say that such reform can happen without reference to the
fraternity’s war against the prime minister. Sa’ar underlined this
point this week by announcing that he is “considering” supporting a law
that would give the attorney general the power to fire the prime
minister by compelling a prime minister to resign if the attorney
general indicts him. Bennett says he supports proposed legislation that
would give criminal immunity to serving prime ministers, but would not
apply the law to Netanyahu.
Bennett and Sa’ar start each discussion of legal reform by insisting
Netanyahu has no credibility on the issue. For decades, they note,
Netanyahu blocked efforts to rein in the legal fraternity. And they are
right.
Not only did Netanyahu sit on the sidelines as the unelected lawyers
seized ever-wider powers from the Knesset and the government. He also
did nothing as successive attorneys general targeted politicians for
destruction through frivolous criminal probes. Netanyahu voiced no
objection as now-President Reuven Rivlin, now-Attorney General Avichai
Mandelblit, and then-ministers Avigdor Lieberman, Avigdor Kahalani,
Raphael Eitan, Yaakov Neeman, Haim Ramon and Tzahi Hanegbi were brought
before prosecutorial star chambers.
Only now, when the legal fraternity Netanyahu protected has come
after him, Netanyahu has suddenly become a champion of the reforms he
blocked for years.
Sa’ar and Bennett are right to say that Netanyahu’s sudden desire for
legal reform is based on his personal interest. If Mendelblit weren’t
seeking to destroy him, he would have continued to block all reform
efforts.
But the fact that Netanyahu is an opportunist doesn’t make Bennett’s
and Sa’ar’s substantive claim – that you can separate legal reform from
Netanyahu’s legal woes – correct. To the contrary, they are entirely
wrong. You cannot separate the two.
To be clear, there is nothing reasonable about Mandelblit’s
prosecution of Netanyahu. In stark violation of Israel’s Basic Law, the
criminal probes of Netanyahu were initiated without Mandelblit’s written
authorization. And it was all downhill from there. The central charge
in the indictment, “bribery” relates to non-criminal actions that
Netanyahu undertook. Specifically, Mendelblit claims that Netanyahu’s
efforts to receive positive coverage from a media outlet owned by a
personal friend of his was solicitation of a bribe. And when his
friend’s media outlet published a couple of supportive stories,
Mendelblit maintains, his friend paid a bribe to Netanyahu. In other
words, Mendelblit invented a new form of bribery, not mentioned in
Israel’s criminal code or the criminal codes of any other democracy. The
implication of Mandelblit’s determination is not simply that Netanyahu
is being railroaded. It is far broader than that. His invention of this
new form of bribery transforms the professions of journalism and
politics into criminal enterprises. To pursue Netanyahu, Mendelblit has
turned criminal law and criminal procedure on their heads.
Mandelblit’s predatory obsession with Israel’s elected leader has
served not merely to put the fear of God into Israel’s politicians. He
has used his outrageous campaign against Netanyahu as justification to
expand his own powers beyond anything imagined in law. Citing
Netanyahu’s scurrilous indictment, he seized the government’s power to
appoint the chief prosecutor and barred the prime minister from being
involved in the selection of the police commissioner.
He has similarly used his legally groundless indictments to take over
Israel’s political life. Among other things, Mendelblit held a
primetime press conference to campaign against Netanyahu and announced
Netanyahu’s indictment while the premier was meeting with the US
president in the White House. Mendelblit has even used his prosecution
of the premier to seize the power to decide if Netanyahu may form a
government.
Mandelblit’s behavior is the reason for Israel’s now two-year
political deadlock. After his illegally initiated probes of Netanyahu
destabilized the government and the political world, Mendelblit used the
instability he caused to expand his powers.
The only way politicians will dare to take action to restrain the
powers of the legal fraternity is if the fraternity’s power to retaliate
by opening criminal probes against them is revoked. So the first step
the next Knesset must take is to restore the substantive criminal
immunity of Knesset members.
In 2005, the Knesset stood the immunity law on its head. Until then,
the law provided automatic substantive criminal immunity to all
lawmakers for actions they took while serving in elected office. Under
the amended statute, lawmakers have no immunity unless the Knesset
Ethics Committee grants it. Obviously, the only lawmakers who will ask
for immunity are those that are facing indictment. In other words, the
changed law empowered the attorney general to open criminal probes
against lawmakers at will.
The lawmakers amended the law because together with the justices, the
then attorney general waged a massive campaign, enthusiastically
supported by the media to force them to do so – in the name of the
“fighting corruption.”
Shortly after the amendment passed, the floodgates opened. Successive
attorneys general massively expanded their criminal investigations and
indictments of lawmakers and ministers. Almost every politician who
tried to limit the powers of the legal fraternity found himself under
investigation. Since the 1990s, every sitting prime minister has been
placed under criminal investigation. Four justice ministers have been
indicted.
If the next Knesset adopts Bennett’s and Sa’ar’s position and tries
to advance legal reform without regard to the Netanyahu’s trial, their
efforts will quickly come to naught.
With or without Netanyahu, they will still need to begin their
efforts by restoring the Immunity Law to its original wording. The only
way to deny Netanyahu the protection of a restored immunity law would be
to determine that the law doesn’t apply to actions taken before the
amendment comes into force. But if the lawmakers so determine, then
their amendment will be rendered irrelevant from the outset. After all,
the attorney general will be able to simply open investigations
regarding actions all the lawmakers undertook before the amendment. Once
this becomes apparent, all thought of legal reform will disappear
faster than you can say “subpoena.”
But assuming that lawmakers figure out a way to give themselves
immunity while leaving Netanyahu’s head on the chopping block, what
impact will that have on the governing powers Mendelblit has seized?
Will he no longer be empowered to haul journalists and editors into
police interrogation rooms for publishing nice stories about politicians
involved in clipping his wings? Will Mendelblit retain the power to
appoint the atate prosecutor?
Moreover, if they leave Netanyahu hanging, why would his supporters
support their efforts at legal reform? How can they get a majority of
Knesset members to support legal reform without Netanyahu’s loyalists on
board?
Bennett and Sa’ar are right that the only reason Netanyahu wishes to
reform the legal system is because his survival depends on such reform.
But they are equally, if not more cynical than he. They are hoping that
Mendelblit’s war against Netanyahu will remove the leader they cannot
defeat at the polls and so clear the road for them to rise to power.
What they refuse to see is that if Mendelblit succeeds, all future
elections will be irrelevant.
Netanyahu’s self-serving position provides the Knesset with an
unprecedented opportunity. Thanks to Mendelblit, there is solid majority
support among members of Knesset for comprehensive legal reform. The
job of lawmakers committed to such reforms – including Sa’ar and Bennett
– is to join forces with the lawmakers who want to stop Mendelblit’s
railroading of Netanyahu. Together they can do what lawmakers have been
afraid to do since the outset of the so-called “judicial revolution” in
the mid-1990s. They can restore the powers of the Knesset and the
government by passing and amending laws to restore checks and balances
on the judiciary and subordinate the attorney general and the state
prosecution to Israel’s elected leaders.
Originally published in Israel Hayom.
Caroline Glick
Source: https://carolineglick.com/bennett-saar-and-israels-legal-tyranny/
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