The plea bargain reportedly being considered in opposition leader Benjamin Netanyahu’s criminal trial exposes another aspect of the perversion of the legal system in Israel—its blatant political nature and irrelevant considerations.
It proves, once again, the degree to which prosecutorial authorities have taken over, and the unchecked power the State Attorney’s Office and the attorney general hold. It underscores the need for reforms that will put the judicial branch in an appropriate, independent position, as part of the checks and balances in a democratic government, while preventing it from pushing and shoving its way to the top of that triad.
It is important to make the judiciary, like the Knesset and the government, answerable to oversight, and to revoke its authority to make rules that are convenient for itself while avoiding the probing external criticism rightfully demanded for every other governmental body.
None of the officials involved—the State Attorney’s Office, the attorney general, former Supreme Court president Aharon Barak, and of course, Netanyahu himself—have any real interest in the criminal or legal aspects of the trial. Everyone is focused on the political battle: how to protect or thwart any chance Netanyahu will return to power, what the political ramifications will be, and how to preserve or tighten the legal system’s grip on the country.
This is also the reason for the focus by all parties on whether the plea deal will mandate an admission of moral turpitude and what such a designation would mean, politically.
Perhaps the least relevant consideration is that being waved by Aharon Barak, progenitor of the manipulative “constitutional revolution” which has given the Supreme Court control over Israel at the expense of other branches of government.
He admits that the goal of his intervention is to preserve the court’s status in light of the ongoing erosion of the public’s faith in the legal system, and indirectly, to repay Netanyahu for the long years in which he “protected the court.” Barak thinks that Netanyahu’s many supporters lost faith in the justice system because of what they see as the politicized criminal accusations against him, and is worried that if the trial continues, it will eat away what little faith remains.
But public faith in the legal system was shaky even before the Netanyahu trial. Short as this column might be, we can still present three notable examples.
The first has to do with long years of upholding criminal investigations into politicians who criticize the legal system (such as Ya’akov Neeman or Reuven Rivlin), which peaked with the egregious misuse of police, prosecutorial and court authority in the Haim Ramon affair.
The second is the Supreme Court’s intervention in the matter of illegal migrants. The Supreme Court justices applied their own worldview in this matter, repeatedly canceling, with dubious explanation, Knesset legislation on the issue.
The third example recently reached new heights when the Supreme Court had the audacity to discuss the very legality of a Basic Law, regardless of how the ruling went. The court itself argues that its authority to discuss Knesset laws is anchored in the Basic Laws, which the court gives itself wide room to interpret. After the legal system, through Supreme Court rulings, took control of the most obvious area of politics, it now wants to take thinly veiled control over the selection of politicians, at the expense of the sovereignty of the people.
When, in the name of democracy, the State Attorney’s Office steamrolls effective oversight (as former district court president Hila Gerstal did, acting independently) it places the most powerful institution in Israel—and only it—above the need to answer to the public.
Israeli democracy needs a strong, independent legal system that recognizes its own limits. Israel is blessed to have generally honest judges, who stand up for human rights, such as on the issue of religious coercion. But too often, they use their power badly, forcing their worldviews and values on the public. The status of the legal system is weakened because of failures by the judiciary to restrain itself from jumping into areas that in a democracy fall to the political system—right and left.
These failures do more damage than anything else to the public’s trust, without which the system cannot exist. That trust cannot be rebuilt through a plea deal. For that to happen, the court needs to make a number of courageous rulings and respect the limitations to its status as public servants rather than lords who rule over the people.
Dan Schueftan is the director of the International Graduate Program in National Security Studies at the University of Haifa’s National Security Studies Center.
This article first appeared in Israel Hayom.