The law's critics failed to inculcate appropriate nonlegal norms here. Their embarrassing silence in the face of governmental corruption and dysfunction destroyed the idea they had promoted.
The argument was a serious one: the legalization of Israeli life. About a decade ago, a small but high-quality group of public figures, jurists and academics began arguing that Israel was undergoing a dangerous process that put the law above politics. They were not all rightists; centrists also leveled scathing criticism at judicial activism. Lawyers and businessmen, columnists and politicians argued with growing force that Israel's legal system had gone mad.
One argument was that the Supreme Court, then headed by Aharon Barak, had exceeded its proper bounds and increased its own power at the expense of the elected government. Another argument focused on the law enforcement system, then headed by Edna Arbel, Maj. Gen. Moshe Mizrahi and Brig. Gen. Miri Golan: It held that the police and prosecution had begun intervening inappropriately in public life, imposing a reign of terror on the public's representatives and making it impossible to govern.
Critics of the legal system argued that the law must retreat to give the political system and public discourse room to do their jobs. They believed that if this happened - if the judges and prosecutors stopped being the overseers of politics - the cabinet and Knesset would display responsibility and leadership, and Israel would once again be a functioning democracy where the legislators legislate, the ministers administer and the judges judge.
This school of legal critics was not fundamentally populist. It exposed some real problems with the constitutional revolution and pointed out serious flaws in how famous cases of the 1990s were handled (such as those of Ya'akov Ne'eman, Rafael Eitan and Reuven Rivlin). It created a valuable intellectual current whose goal was to balance that of the radical legalists, who had begun to believe that everything was indeed justiciable.
The warriors against legalization went from strength to strength. What began as subversive, shocking statements by Moshe Landau and Ruth Gabison turned into a new consensus. When the halo that had surrounded the Supreme Court faded and faith in the law enforcement agencies began to crack, many began to challenge the supremacy of the law.
Aharon Barak's revolution spawned a counterrevolution. The trend toward hasty criminal proceedings against politicians (Benjamin Netanyahu's gifts, Haim Ramon's kiss) spawned a countertrend of defending the politicians. The media turned its coat. Even the new heads of the prosecution internalized the criticism and adopted a cautious, conservative approach.
Thus Ehud Olmert's first two years in power were years with neither judge nor judgment. Even though it was well-known that the new prime minister came with a whole closet full of skeletons, the skeletons were neither examined nor exposed. Even when the state comptroller located Shula Zaken's astounding journals, toward the end of 2006, the police and prosecution were in no hurry. The Winograd Committee was appointed so that the failures of the Second Lebanon War would not be investigated by a juridical state commission. Ramon and Daniel Friedmann were successively appointed justice minister in order to castrate the court, neuter the prosecution and tame the police.
The one agenda of this agenda-less government was forcing the law into retreat. There was a mood of "we've had it with the judges." We've had it with the prosecutors, we've had it with the policemen, we've had it with the High Court of Justice. We've had it with the rule of law.
But this April, something happened. Attorney General Menachem Mazuz, State Prosecutor Moshe Lador, Police Commissioner David Cohen and the head of the police investigations department, Yohanan Danino, were confronted with information they could not ignore. This information forced them to choose: either a systematic and thorough investigation of the prime minister, or whitewashing and collaboration.
The four made the right decision. In a sense, they became heroes against their will. They are neither Edna Arbel nor Joan of Arc. They are not happy about ousting a sitting prime minister. Yet after both the political system and the public system failed, they were left standing alone. And because they have passed the point of no return, they now have no choice but to see the process through to the end.
The day when an indictment is filed against the prime minister will be a sad one. The facts detailed in the charge sheet will be embarrassing and depressing. Yet the very fact that an indictment has been filed will be a source of pride and hope. It will prove that despite everything, there are policemen, prosecutors and judges in Israel. There is law and justice.
That will also be an appropriate day to settle accounts with Friedmann, Ramon and Gabison. On that day, everyone will understand that in the two years they were granted, the law's critics failed to inculcate appropriate nonlegal norms here. Their embarrassing silence in the face of governmental corruption and dysfunction destroyed the idea they had promoted. This silence was responsible for the fact that at a critical moment, public and political criticism failed to work. The law's critics became unwitting collaborators with a vile government. And they left Israelis with no choice but to once again put their trust in the law and its representatives.
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