Netanyahu Has Good Reason to Fear Democracy Defending Itself

Nurit Elstein
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A man wearing a protective face mask holds an Israel's flag as Israelis demonstrate against what they call an assault on Israeli democracy, Rabin Square in Tel Aviv, Israel April 19, 2020
A man wearing a protective face mask holds an Israel's flag as Israelis demonstrate against what they call an assault on Israeli democracy, Rabin Square in Tel Aviv, Israel April 19, 2020Credit: REUTERS/ Corinna Kern
Nurit Elstein

Mr. Prime Minister, according to media reports, you are concerned that no political agreement will arise to give you immunity to intervention by the High Court of Justice. As a result, you’ve been delaying the sealing of a coalition agreement with Benny Gantz’s Kahol Lavan. Well, you’re right to be concerned.

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Bibi's got the perfect exit strategy - just not for the coronavirusCredit: Haaretz

The court could decide that you’re not fit to be prime minister in light of your corruption indictments involving violations of integrity, or more specifically, moral turpitude. According to the media reports, you and Gantz have recruited “talents” who crafted a complex model to ensure that you can keep your job, but reputed legal experts have warned you that the proposed legal blueprint doesn’t give you full protection.

Let’s speak frankly. You haven’t really been dealing with the coronavirus pandemic. Staying in office is the only thing that you’ve been busy with. You should therefore realize that no legal model will provide you with complete protection or, as long as Israel is a democracy, grant legitimacy to a matter that’s fundamentally crooked. Ensuring that you can remain prime minister despite the indictments would require you to extinguish democracy entirely.

Sometimes circumstances are extreme; for example, when a prime minister is accused in a corruption indictment of causing serious harm and works to destroy democracy as part of a defense tactic in the case. In such a case, there is justification for a democracy to prevent its collapse in the face of forces threatening its existence.

Democracy is not a recipe for suicide. History has taught us that sometimes when procedures are abused and harm democracy’s very existence, extraordinary means must be used in defense. This is true, for example, when there is a need to defend “the face of the government in Israel,” as the late Supreme Court Justice Meir Shamgar put it.

As a rule, every defendant, when learning that the case is well-founded, will assail the people presenting the evidence. It’s fairly typical for a defendant fighting for an acquittal to cast aspersions on how decisions in the case were made, on how evidence was gathered and on the authorities’ good faith.

That would be possible to accept under certain circumstances when the defendant is an elected official. But, Benjamin Netanyahu, you are not sufficing with that.

You have chosen to inflict harm on all the institutions of government as you exploit the entire arsenal of your powers as prime minister to undermine the public’s trust in the institutions and escape justice. You have turned the law enforcement authorities into the accused and portrayed yourself as someone persecuted by the police, the prosecutor’s office and the attorney general.

As a result of your power as prime minister and the fact that you are talented and charismatic, you have managed to create a bizarre reality with blurred boundaries. The public is becoming convinced that these institutions are hounding you, and all your capabilities are being directed at a single goal: to completely evade the scrutiny of the law.

The violence, lies and tactics that you have used to obtain a single benefit – escaping justice by staying in power – have turned you into a very dangerous person for the country. An unrestrained thirst for power and your willingness to use your authority for an inappropriate personal purpose to escape justice are a dangerous recipe for Israel’s existence as a democracy. They put you in the shoes of other leaders who have dragged their countries to the threshold of dictatorship.

That, Mr. Netanyahu, is the reason that the High Court of Justice must stop you, because, unfortunately, politics has failed to accomplish the task. And therefore, you do indeed have reason to fear the High Court.

Nurit Elstein was the Knesset’s legal adviser from 2005 to 2010.