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Democracy devoid of the ‘demos’?

If the Israeli prime minister is not indicted—or if he is indicted and acquitted—then it will be a massive blow to the credibility of the nation’s law enforcement.

Then-Justice Minister Amir Ohana speaks during a discussion on the Security Cameras Law at the Knesset in Jerusalem, Sept. 11, 2019. Photo by Yonatan Sindel/Flash90.
Then-Justice Minister Amir Ohana speaks during a discussion on the Security Cameras Law at the Knesset in Jerusalem, Sept. 11, 2019. Photo by Yonatan Sindel/Flash90.
Martin Sherman
Martin Sherman

“They who sow the wind will reap the storm.”Hosea 8:7

“[There is a] dangerous symbiosis between elements in the police Major Crimes Unit, the State Prosecutor’s Office and the media.” — Citation from Justice Minister Amir Ohana’s Press Conference, Oct. 29, 2019

This week was a tumultuous one for Israel’s legal establishment—and rightly so.

For almost a decade, I have underscored repeatedly that certain sectors of Israeli civil society have, time and again, (mis)used their unelected positions of influence and authority, to dominate the political discourse—and hence, to a large degree—to determine political outcomes. More often than not, these were outcomes that not only did not conform to voter preferences as reflected in the election results, but starkly contradicted them. In particular, I pointed to a trinity of interacting sets of civil society elites with distinctly left-leaning political proclivities—in the mainstream media, academia (particularly in the social sciences and humanities, including law) and the legal establishment.

Slowly, awareness of this perversion of the democratic process has edged its way into the public consciousness and the public debate with the legalistic crusade against Israeli Prime Minister Benjamin Netanyahu giving it added impetus.

Indeed, this was clearly demonstrated this week in the furor over the harsh criticism leveled by the recently appointed Justice Minister, Amir Ohana, against Israel’s legal system—or, at least, important sectors of it.

‘A dangerous symbiosis’

At an Oct. 29 press conference, Ohana severely condemned the “dangerous symbiosis between elements in the police Major Crimes Unit, the State Prosecutor’s Office and the media,” warning that the State Prosecutor’s Office “had become a political actor,” thereby exceeding the proper bounds of its assigned duties.

Significantly, he began his address with a quotation (see below for the somewhat surprising source):

“I know the State Prosecutor Office well. There are many diligent prosecutors who serve in it and who carry out their duties faithfully, day after day in court, at times against dangerous criminals and organized crime gangs. But there is also a different kind of Prosecutor’s Office—a Prosecutor’s Office within the Prosecutor’s Office.” 

He went on citing: “There are those, who, by means of a small sect of “court-yard” [i.e. compliant] reporters, have succeeded in promoting the perception that there is a war raging here between the forces of good against the forces of evil, in which the Prosecutor’s office valiantly defends the public against its elected representatives. The public believes that the politicians are corrupt, that the institutions of government are rotten, that public figures are not only guilty until proved innocent, but even after they are proved innocent.”

Still adhering to the quotation, Ohana continued: “Any expression of doubt, any word of criticism is immediately rejected. A pack of complicit journalists and biased pundits always rush to the defense of the Prosecutors Office and portrays the expressions of doubt as heretical opposition to the rule of law.”

Echoing its grave warning, he lamented: “Political and public careers have been destroyed one after another, while the public, which is not privy to the facts, is convinced that the ‘stables are being cleaned out’. Almost no one dared expose the dangerous symbiosis between elements in the police Major Crimes Unit, the State Prosecutor’s Office and the media. That’s how the system worked. That’s how careers were destroyed. The closing of cases or acquittals in court always came too late.”

The quotation ended in a dour tone: “When necessary, in order to get rid of a Minister of Justice, of whom the legal Establishment did not approve, old charges were reopened, details leaked to certain people in the media—always the same people. All this was done so that the politicians, who were marked, will remember that there is always a sword suspended above their head. … If that is not extortion, I do not know what extortion is.” 

Ohana finally revealed who had authored these words: Reuven Rivlin, then (2004) Speaker of the Knesset, today president of Israel! Significantly, Rivlin has been widely embraced by elements of the Israeli left for what they perceive as his statesman-like, centrist demeanor as president.

Yair Lapid: Only to change feet?

In response to Ohana’s censure, Yair Lapid, one of the heads of the Blue and White faction, responded with an irate tweet:

On the wall of the Ministry of Justice there is a picture of my father [Yosef ‘Tommy’ Lapid, who served briefly as Justice Minister in Ariel Sharon’s government (2003-04)]. If pictures could feel shame, it would be ashamed of his successor [Amir Ohana]. Verbal violence, in a degrading attack on the very system he is supposed to defend, in a transparently sycophantic effort to curry favor with a prime minister, suspected of grave criminal offenses. It is no longer shocking. It is no longer embarrassing. It is sad. The time has come for change.

Regrettably, it seems that lately, Lapid junior only opens his mouth to change feet.

For shortly after his disapproving tweet, the web was abuzz with tart retorts, showing that in fact his father had expressed very similar sentiments to those of Ohana regarding the State Prosecutor’s Office—indeed, if anything, even harsher.

Thus, on prime-time TV, Lapid senior railed against the State Prosecutor’s Office:

We need to understand how what is happening, actually happens. First of all, I want to say that the legal system in Israel is being undermined by an over-zealous State Prosecutor’s Office … that is losing esteem and credibility with each additional trial. … In the Prosecutor’s office there is a band of young ‘hungry’ lawyers that put pressure on the older ones. I call them the ‘terror unit’ within the Prosecutor’s Office.”

He went on to accuse the Prosecutor’s Office of indicting defendants, despite flimsy evidence as to their guilt, without taking into account the suffering the wrongly accused undergo until acquitted.

He then presented his grave assessment: “This happens in so many instances that a Commission of Inquiry must be set up to examine what is going on in the Prosecutors Office.” 

Interestingly, it appears that Lapid senior not only concurs with Ohana as to the problematic functioning of the Prosecutor’s Office, but also, in general terms, as to how this issue should be addressed. Thus, just before submission of this article, in an interview with Israel Hayom, Ohana declared that if there is not a serious response to Tuesday’s press conference, I would like to exercise my authority and set up a government investigation committee into the conduct of the prosecutor’s office.” 

When legality loses its legitimacy 

However, the State Prosecutor’s Office is not the only sector of the Israeli legal system that is facing a crisis of confidence. I have written several times, in some detail, on the steep erosion of public faith in the judiciary, including in the High Court, reflected in a comprehensive ongoing study at Haifa University (see for example here and here).

I will, therefore, confine myself to citing a review of this study by Einav Schiff, titled “The Supreme Court is losing the people’s trust.” In it, he writes: The view of the court as an ivory tower, home to self-appointed gods, is becoming more and more common, and this is reflected in different confidence indexes. Last May, for example, the Rule of Law Index by Professor Arie Ratner of Haifa University found that 49 percent of Jewish Israeli citizens have confidence in the Supreme Court. In 2000, that rate stood at 80 percent. This isn’t a slip or a drop, it’s a collapse.”

He warned: Needless to say, the High Court’s image among the public cannot remain as it is now. Eventually, there will be a political constellation that could enable another constitutional revolution … which will be powered by support from the people.”

The legal establishment will ignore these warning signs at its peril.

The backdrop for Netanyahu indictments 

This crisis of public confidence is, in many ways, the backdrop to the prospective indictments of Netanyahu. After all, to anyone but a rabid “Bibiphobe,” they appear transparently contrived, indeed, a thinly veiled attempt at a legalistic coup (see here, here, here and here) creating a deep sense of unease that Israel’s legal establishment is being exploited for patent political ends—i.e., that unelected elites are using their positions of influence and authority to bring about political outcomes that do not correspond to, even contradict, the election results, depleting the influence of the demos in Israeli democracy.

Indeed, as a layman, it is difficult to avoid the distinct impression that the unrelenting drive to bring an indictment—any indictment—against Netanyahu has long exceeded the bounds of reasonable law enforcement. Thus, it would seem, that where Netanyahu is concerned, the forces of law and order appear to be trying to outlaw every give-and-take interaction in political life, thereby extracting the very essence of political activity itself.

Especially in light of the recent endeavor to bring highly dubious charges of witness harassment against work associates of Netanyahu, one might be excused for sensing a creeping suspicion that a desperate attempt is underway to criminalize anything and anybody with any perceived congenial affiliation with Netanyahu, whether professional or personal.

Reaping the storm

This is, to understate the case, deeply regrettable.

For there are testing times ahead for Israeli society. Beset by harrowing external threats and what is liable to be unprecedented domestic tumult, there are unlikely to be any positive outcomes that emerge from the endeavor to prosecute the prime minister.

If he is not indicted—or if he is indicted and acquitted—then it will be a massive blow to the credibility of the nation’s law enforcement.

If he is convicted and forced out of office, many will see this as naked politicization of law enforcement in the country, in effect, a legalistic coup d’état designed to annul the outcome of elections and will deal a mortal blow to their faith in the democratic process.

Either way, there will be no winners. The real casualty will be the public’s belief in the institutions of State in Israel, just when that very belief may be sorely needed.

Indeed, we may soon find that those who tried to sow a legalistic wind will reap a storm far beyond anything they imagined.

Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.

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