Analysis

Israeli Right's Idea of Democracy Doesn't Include the Rule of Law

Netanyahu and his ministers bully the court, threatening it whenever it has to rule against the government on an issue it cares about

Mordechai Kremnitzer.
Mordechai Kremnitzer
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Israeli Prime Minister Benjamin Netanyahu speaks during a conference in Jerusalem January 8, 2020
Israeli Prime Minister Benjamin Netanyahu speaks during a conference in Jerusalem January 8, 2020.Credit: RONEN ZVULUN/ REUTERS
Mordechai Kremnitzer.
Mordechai Kremnitzer

The right’s idea of democracy doesn’t include the rule of law, even in its most basic version. Justice Minister Amir Ohana said that in theory there’s no obligation to comply with all court rulings; MK Miki Zohar now seeks to apply this outrageous legal stance: He urged Knesset Speaker Yuli Edelstein to ignore the High Court of Justice should it order him to convene the Knesset to debate Benjamin Netanyahu’s immunity request.

Obviously, policemen won’t be sent to arrest the Knesset speaker. But relations among the branches of government are built on mutual respect even when police aren’t knocking at the door.

This is a natural result of how Netanyahu and his ministers bully the court, threatening it whenever it has to rule against the government on an issue it cares about. Even a child recognizes that the threat is to destroy the court.

Nor was the right satisfied with the dubious alliance forged by former Justice Minister Ayelet Shaked and former Israel Bar Association head Efraim Nave to politicize the judiciary. It seeks to enfeeble the courts. The decisive step would be a law allowing the Knesset to override Supreme Court rulings.

This assault on the courts is part of a broader war against the gatekeepers and every element of Israel’s already weak system of checks and balances. It was Ohana who advocated allowing cabinet members to appoint their ministries’ legal advisors. That’s because the right wants not professional legal advisers, but toadies.

Thus it’s no surprise that Netanyahu and his supporters tarred and feathered Knesset legal advisor Eyal Yinon, who has repeatedly proved his unbiased, professional approach, by accusing him of lying and even of criminality, just because they didn’t like his professional opinion on Netanyahu’s immunity request.

Parliamentary immunity exists to protect legislators from government persecution. But here, the prime minister seeks to use immunity to evade standing trial for his corrupt behavior as prime minister. It’s a perversion of the immunity process. Yet Netanyahu has the nerve to speak in the name of democracy.

His immunity request is an unprecedented attack on the legitimacy of law enforcement, since he accuses it of massive bad faith and discrimination. Never has there been such a libel of the justice system – and by the prime minister, who should be its chief defender.

Israel has no real separation between the legislative and executive branches, since the government controls legislation through its parliamentary majority. This also ensures that parliamentary supervision of the executive is weak.

Israel doesn’t have a bicameral legislature, nor is it subject to international norms and institutions as, for instance, signatories of the European Convention on Human Rights are. It has no electoral districts and no division of power between the national and local governments. Thus, a weak judiciary would enable unchecked rule by the coalition majority, whose tone is set by disproportionately powerful niche parties.

But the road to unchecked governmental power doesn’t run solely through castrating the gatekeepers, including the state comptroller and senior civil servants, who are expected to replace loyalty to the public with loyalty to the ruler. It also runs through silencing critics like the media and civil-society organizations.

This can’t be done without identifying an internal enemy – the Arab minority and those who support its rights – and replacing patriotism with nationalism in the form of a comparatively soft racism that will just squeak through the courts. Consequently, a right-wing government can’t be formed without the Kahanist Itamar Ben-Gvir and the picture of Baruch Goldstein, who massacred 29 Arabs in Hebron in 1994, that hangs above his head. This nationalism, coupled with perpetuating the Israeli-Palestinian conflict as an eternal one, will ensure that there is no need to address the country’s socioeconomic problems.

Unchecked governmental power means unchecked governmental corruption, which is slated to be protected by parliamentary immunity. And it doesn’t require great imagination to see where right-wing rule government is heading – Europe between the world wars, or Hungary and Poland today.