(March 22, 2019 / JNS) In the lead-up to the Israeli attorney general’s recent announcement of plans to indict Israeli Prime Minister Netanyahu on charges of bribery and breach of trust, Alan Dershowitz, emeritus professor at Harvard Law School and a leading constitutional scholar, published several pieces warning that such indictments would present a threat to Israel’s democracy. Dershowitz argues that the accusations entail a dangerous expansion of prosecutorial authority over activities that either ought not to be criminalized or do not clearly violate any laws.
Almost two decades ago, in a letter to Haaretz in August, 2000, Dershowitz warned that attempts then to prosecute Netanyahu seemed to reflect a pattern of political bias in prosecutions of prominent public figures that likewise undermined the rule of law.
Both politically selective prosecutions and the expansion of prosecutorial authority along the lines Dershowitz warns against have proceeded between then and now. Regarding the latter, even before the current situation concerning potential indictments of the prime minister, the powers of the attorney general—who, since the late 1990s, has been selected by a five-person board only one of whose members represents elected officials—have been enlarged. They have eroded what are typically in Western democracies the prerogatives of the legislative and executive branches.
The potential for prosecutorial abuse over these years has largely derived from the fact that Israel’s Supreme Court has for several decades been ideologically biased, and at the same time uniquely activist and political compared to similar courts in other Western democracies.
Its political partisanship and discrimination have long been recognized by much of the public and have translated into significant public distrust. In a poll conducted by the Maagar Mohot Survey Institute and published Nov. 11, 2011, only 14 percent of respondents believed the Supreme Court represented all elements of the nation while 51 percent believed it did not. By 54 percent to 46 percent, those polled viewed the court as politically slanted. Of the 54 percent who declared the court politically biased, by 75 percent to 11 percent they saw it as slanted in favor of the left.
The Supreme Court’s ideological bias has been rendered much more consequential by its activism. The court has assigned to itself the right to pass judgement on and veto acts of the elected legislature. It claims the right to do so in the context of its supposed role as enforcer of the precepts of the Constitution. But Israel has no Constitution. It has Basic Laws, and the Supreme Court has allowed itself the greatest possible latitude in interpreting Basic Laws in a manner that supports its power grabs and its politically slanted decisions.
Both the ideological bias of the court and its assumption of such transcendent powers were codified by Aharon Barak during his years as president of the Supreme Court (1995-2006), and they have remained essentially intact since then. An earlier Supreme Court President, Moshe Landau, said of Barak’s arrogating to the Court such power: “I think [he] has not, and does not, accept the rightful place that the court should have among the various authorities in our regime.” Landau saw Barak striving “to interject [into all areas of Israeli life] certain moral values as he deems appropriate. And this amounts to a kind of judicial dictatorship that I find completely inappropriate.”
There is yet another key contributing factor to the patterns of anti-democratic authoritarianism and political bias in the judicial and broader legal system: Israel’s judicial appointments committee.
The committee is responsible for all of the nation’s judicial appointments, including those to the Supreme Court. It consists of nine members: the Chief Justice and two other Supreme Court judges, two members of Israel’s Bar Association, the Justice Minister, one other Cabinet minister chosen by the Cabinet and two Knesset members, usually one from the ruling coalition and one from the opposition.
The dominance of the committee by members either on the Supreme Court (the committee’s largest single bloc) or representing the Bar Association means that the committee serves almost inevitably as an instrument of self-perpetuation for the political predilections of the nation’s highest court. The committee is set up in a manner that virtually assures it appoints new members to the Supreme Court, and in large part to other courts, who share the political perspectives of those currently holding the nation’s highest judicial positions. While a few appointments to the Supreme Court in recent years have deviated somewhat from the 15-member court’s groupthink, the basic pattern remains unchanged.
This arrangement actually corrupts the entire judicial and broader legal system. The circumstance of prospective judges having to embrace particular political views in order to enter the judiciary or to advance within it means that the entire legal “food chain” is corrupted by the pressure—on those within the legal profession, including prosecutors, who aspire to such positions—to establish a professional record reflecting the favored views. Individuals in the profession who harbor such aspirations may resist that corrupting pressure to a greater or lesser degree, but the pressure is there.
The Israeli media rarely address the threat to the nation’s democracy represented by a judicial and broader legal system that has successfully usurped legislative and executive authority, and wields that authority essentially beyond the reach of elected officials. This silence is matched by that of Israeli academia and elements of the nation’s cultural and political elites. It is a reflection of the circumstance that the Israeli left, largely excluded from government coalitions in recent decades, sees the courts and other elements of the legal system as its means of wielding national power even while consistently losing at the polls.
Nothing in Israeli governmental institutions represents as great a threat to the state as the elements of Israel’s “judicial dictatorship.” Indeed, each element is itself a profound threat: the assumption of transcendent power over the legislative and executive actions of the nation’s elected officials; the political bias with which that power is exercised; and the establishment of a self-perpetuating regimen for court appointments. The last, together with the judiciary’s control over the other branches of government, obstructs meaningful reform of the corruptions that characterize the judicial and broader legal system. In addition, the legal system is notorious for threatening and initiating criminal investigations against those who promote policies at odds with the biases of the courts, including politicians who champion judicial reforms.
Will Israelis, courageous in so many respects, find the courage—despite the legal system’s instruments of intimidation—to challenge those corruptions? Will they re-establish a judiciary that conforms to democratic norms, and to a genuine system of checks and balances among the branches of Israel’s government? The future of Israel’s democracy depends on their doing so.
Kenneth Levin is a psychiatrist and historian and author of “The Oslo Syndrome: Delusions of a People Under Siege.”