Assault on Israel’s judicial system: The angel of history is watching us

The current justice minister, Amir Ohana, is the prime minister’s personal political appointee.

By
November 6, 2019 10:50
4 minute read.
Israel's Supreme Court

Israel's Supreme Court. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

The wrestling match between the political and the judicial, between the elected representatives and the professionals, is becoming ever more intense.

The current justice minister, Amir Ohana, is the prime minister’s personal political appointee. His ministry is home to the critically important State Attorney’s Office, against which he has launched a fierce attack. He is doing so donning a suit and tie, but with bare hands and with a conspicuous lack of respect, lashing out at the most senior officials in his own ministry. This is a terrifying spectacle – a government body attacking itself. In medicine, this is what is called an autoimmune disorder.

Like most of the major events in the current national arena, so too, Ohana’s words should be understood and interpreted in the current Israeli context: a struggle of nearly mythological proportions between the prime minister and the agencies that enforce the rule of law. How should we assess the situation from the perspective of the national and collective interest?

At least for now, we must distinguish between the prime minister himself and those surrounding him, including the justice minister. The prime minister comes from a nationalist-liberal family. Immersed in this tradition, he is deeply aware of the immense importance of the slogan coined by Menachem Begin, his predecessor as the head of his party: “There are judges in Jerusalem.” The respectful obeisance that the government makes to the rule of law – not from the perspective of hierarchy but, rather, based on respect for the division of powers and responsibility – is deeply embedded in his ideological DNA.

Indeed, in the last decade it has been the prime minister himself who, with relative success, has stood in the way of those attacking the rule of law and seeking to destroy it.

Will he continue along this path? Will he be able to cope – on the one hand – with the formidable challenge of defending his innocence through the legal system’s accepted practices, while defending the judiciary and the law-enforcement agencies on the other?

At the end of the day, history will assess his immense achievements on behalf of the State of Israel over the past generation based on how he handles the current challenge. The angel of history is peeking over his shoulder.

FOR THE moment, the prime minister’s legal fate is in the hands of the individual who holds the authority, on the behalf of all Israelis, to determine it – the attorney-general and his staff.

It is perfectly clear that whatever his decision, it will be bitterly criticized by half the Israeli public. But there is something liberating in this inevitable criticism: it allows the attorney-general to act as he should – to reach a decision on what is a professional question, by weighing the evidence and its legal significance, entirely objectively. The background noise must remain in the background, on the populistic street, and must not be allowed to barge into the room in which the decision is made. The attorney-general need not, as a matter of principle, and cannot, as a matter of practice, please all shades of public opinion. It is this situation that enables him to carry out his job in a totally professional way.

Attorney-General Avichai Mandelblit is the right man in the right place. Like Netanyahu, he grew up as part of the Revisionist “fighting family.” He himself was exposed to legal charges, which he was able to rebut, and thus has firsthand experience of what it’s like to be on the other side. His roots lie in the most nonpartisan institution in Israel – the military – where he eventually rose to become the military advocate-general, after having served as both the chief military defense attorney and the chief military prosecutor. Is this the profile of a “member of the ‘rule-of-law’ gang”? Everyone who knows Mandelblit will testify that not only is he an experienced professional, he is also far from being a firebrand radical and is in fact impartial, rational and devoted to the public interest.

These traits were expressed, among other ways, in the course of the hearing granted the prime minister, which, according to the latter’s attorney, was conducted in a fair and professional manner. Direct interaction among professionals, representing both sides, is the appropriate arena – and in fact the only arena – in which the debate should take place.

For now, with regard to the attorney-general’s decision, we are all behind a veil of ignorance. He may file a grave indictment, or press less serious charges, or close the case. And so, this is the moment we should take a principled stand about the impending decision – regardless of one’s individual opinion. Everyone committed to the democratic tradition and to the rule of law, everyone who places country above party and ideology, must now take it upon him or herself not to challenge the legitimacy of the decision taken by the public’s trustee – the attorney-general – regardless of what that decision is.

This does not rule out professional criticism of the decision, but it must block any attack on its legitimacy. Otherwise, in the words of the sages, “every man would swallow his neighbor alive.”

The writer is a senior fellow at the Israel Democracy Institute and a professor of law at Bar-Ilan University.


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