The assault on the rule of law

Powerful forces are pushing against the rule of law, attempting to derail it.

February 20, 2018 21:36
4 minute read.
Israeli Prime Minister Benjamin Netanyahu speaks in Tel Aviv, Israel February 14, 2018

Israeli Prime Minister Benjamin Netanyahu speaks in Tel Aviv, Israel February 14, 2018. (photo credit: NIR ELIAS / REUTERS)


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The locomotive of the “rule of law,” which is supposed to lead to a verdict in the cases against Prime Minister Benjamin Netanyahu, screeched to a brief and dramatic halt this week, at “Police Recommendations” station. From there it is supposed to continue to the next stops down the line – the “State Prosecutor,” the “Attorney General” and perhaps even its final destination, “the Courts.” The outcome of this twisting journey cannot be known in advance, neither on the legal track nor the political track.

One thing is clear, however: powerful forces are pushing against the train, from Left and Right, in an attempt to derail it and frustrate the proper operation of the rule of law.

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From the Right, Minister Yariv Levin, with a law school education, insists that the police recommendations constitute “a despicable maneuver to stage a coup against the will of the voters.” This is not a rabble-rousing declaration by a street demonstrator, but a deliberate attack by a senior member of the executive branch who is accusing the law enforcement system of sedition. If he is correct, the inspector general and investigative teams belong behind bars; if he is wrong, then he and everyone else who makes similar charges should not hold any public position.

On the Left, an editorial in Haaretz pontificates that “the bottom line of the police recommendations in both cases... is unequivocal; the evidence... points to the commission of bribery.” Some Haaretz columnists have threatened the attorney general: “He will have to be a Shi’ite suicide bomber to close these two files”; and “the path to a seat on the Supreme Court cannot pass by way of providing services to the Netanyahu family.”

None of the contributors to this public and media cacophony have seen the evidence, but they all speak with terrifying certainty.

What they have in common is a profound contempt for the necessary process of clarifying the facts and their legal ramifications, and a lack of trust in the state agencies authorized to conduct it. In their book, the process has only one goal – to confirm what is clear a priori to each side, as a function of its political stand, the evidence be damned. Both sides are undermining the rule of law.

From the perspective of those who wish to preserve the rule of law, we are living in a Greek tragedy whose dreadful outcome is known in advance. The defining feature of Greek tragedy is the chorus, which provides the audience with objective and factual information and a didactic message. For us, alas, the public chorus does just the opposite: it provides politically biased information (that is not relevant to the issue), and its message, the delegitimation of the competent authorities, is an educational catastrophe.

If the attorney general decides to accept the police recommendations and indict the prime minister, the chorus on the Right will rhyme his name with the “New Israel Fund,” the “Meretz Supreme Court” and all its other ostensible enemies of Israel. If he decides to drop the case, the chorus on the Left will accuse him of cowardice and betrayal of his sworn duties, in order to please the man who appointed him to his high position. In either case, the tragic chorus will be singing a lie. A reasonable person should reject the conspiracy theories of both sides. How ludicrous is the claim, sounded by the Right, that the professional investigative system of the Israel Police, and the former settler at its apex, are acting out of a hidden political agenda against the prime minister.

Equally absurd is the claim made by Left, which brings thousands of incensed demonstrators into the streets, that the attorney general is holding back the investigation, when it is as clear as day that it was his stubborn insistence on a thorough inquiry that brought the additional incidents and testimonies to light.

As long as we are talking about Greece, let us give a thought to Socrates. In 399 BCE he was condemned to death for disseminating his ideas. He was offered the tempting possibility of leaving prison by the back door and saving his life. Refusing to escape, he drank hemlock, because he believed that obedience to the law of the land is more important than the fate of any individual, even when that law takes his life unjustly.

Netanyahu is not Socrates. He prides himself on devoting his life to serving his country and promoting its best interests, as he sees them. This is true, and we must all acknowledge it. He believes, like Socrates, that he is being treated unfairly. Unlike that noble-minded Greek, however, Netanyahu’s efforts to escape the clutches of the law have led him to blow an evil wind on embers that threaten to flame up and consume the public’s confidence in the rule of law. When Netanyahu accuses the law enforcement agencies of fabricating a case against him he is putting his own interests ahead of what is good for the country.

Inciting the public against the legitimacy of the law enforcement agencies is a much more serious matter than all the allegations in the police recommendations put together.

You don’t have to be a Greek philosopher to understand that.

The author is vice president of the Israel Democracy Institute and a professor of law at Bar-Ilan University.

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