When Netanyahu complains about subverting democracy

If the investigations are serious, and if the evidence is substantive and carefully examined, there can be nothing undemocratic about the procedure.

By
December 23, 2018 21:35
Prime Minister Benjamin Netanyahu at a weekly cabinet meeting, December 23rd, 2018

Prime Minister Benjamin Netanyahu at a weekly cabinet meeting, December 23rd, 2018. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

 
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The reaction of the Prime Minister’s Office to the announcement that the team from the State Attorney’s Office appointed to investigate the suspicions against him recommends to prosecute him on charges of bribery in cases 2000 and 4000 and on charges of breach of trust in case 1000 was that “leaks and media pressure are designed once again to create inappropriate pressure, so that indictments will be served against Prime Minister Netanyahu at any cost. We are sure that the examination of the evidence, which disregards the background noises, will prove that there was nothing.”

Netanyahu himself repeated his mantra that “there will be nothing because there is nothing” and another claim, which is frequently sounded by those surrounding him, that the investigations and everything around them “subvert the foundations of democracy.”
At first sight it is not clear what exactly Netanyahu and his entourage mean by this statement. What can be undemocratic about the investigation of suspicions of an ethical and/or criminal nature, even if, or perhaps because, we are talking of a prime minister?
Yesterday morning, on Israel Radio’s Reshet Bet, MK David Amsalem, chairman of the coalition, gave the following answer to this question. He said that should the attorney-general decide to indict Netanyahu, “millions will go out to the streets.... They will not accept such a decision,” suggesting that going against the wishes of the masses “is undemocratic.”

This is a highly populist interpretation of democracy. In fact, if the suspicions are all honest suspicions, if the investigations are serious, and if the evidence is substantive and carefully examined, there can be nothing undemocratic about the procedure. Furthermore, given the fact that all those heading the various law enforcement bodies involved in the investigations are Netanyahu appointments, there can hardly be any suspicion of undemocratic foul play being involved.

On the contrary, the fact that, at the end of the day, public servants appointed by the prime minister do not consider it to be their duty to blindly serve the interests of the one who appointed them is evidence of the fortitude of the democratic system, though we do not know how much damage will have been caused to this system by the time Netanyahu will leave the scene – voluntarily, by democratic means or as a result of legal proceedings.

It is perhaps an anomaly that he, under whose leadership the Israeli democratic system has suffered its most severe challenges, speaks of dangers to democracy. Of course, one could argue that Netanyahu’s opponents do not have a monopoly over democracy and over its protection.

THE PROBLEM is that in Israel’s case, there is no neutral umpire to rule when there has been a digression from democracy.
For example, in the case of Poland, the EU institutions ruled that the measures taken by the Polish government to weaken the Supreme Court in Poland were blatantly undemocratic, and as a result the Polish government retracted. Who will rule that the measures planned and implemented by Justice Minister Ayelet Shaked, with the open support of several other ministers (e.g., Naftali Bennett and Yariv Levin), to weaken Israel’s Supreme Court and High Court of Justice are designed to weaken criticism of the government and to weaken attempts to stop it from performing illegal acts, and not to serve justice?

None of this denies that it is not important to ensure that the Supreme Court will be more balanced than it was in the past as between conservatives and liberals, religious and seculars, Ashkenazim and Mizrahim, etc. However, this cannot open the door to a court that does not uphold the rule of law, including the relevancy of international law, the supremacy of the law passed by the Knesset over the Halacha, or that is partial to the delegitimization of Israel’s non-Jewish population, its human rights activists, or those who believe in the two-state solution. I am not saying that we are already there, but there is a danger that we are heading in that direction.

There are other examples, such as a 10-year battle between the European Commission for Democracy through Law in the Council of Europe and the Ukraine over the Ukrainian insistence to be able, on the basis of the Rules of Procedure of the Ukrainian parliament, to expel MPs who are in breach of party discipline, in accordance with the Imperative Mandate of MPs, which the Western democratic world considered undemocratic and therefore unacceptable (the Imperative Mandate claims that representatives owe complete allegiance to those who elected them, rather than their own discretion).


Ukraine has not given in, and the European Commission does not have the power to do anything about it. However, if Israel were to implement the same provision in the Knesset (and there have been several proposals in the past to do so), there would be no one neutral to say a word against such an antidemocratic move, just the usual choir of liberal Israeli journalists, jurists and political scientists.

BUT TO return to Netanyahu and democracy: In the past Netanyahu could be trusted to block legislative proposals that were blatantly undemocratic. We do not know whether he did this because he really feared for Israeli democracy, or whether he was simply wary of finding Israel dragged to the International Court in The Hague, or under additional barrages of criticism from the Western democratic world.

But those days are over, and political survival appears to be the only consideration left. As the threat of an indictment draws closer, and with it a real threat to his continued rule, Netanyahu no longer seems to bother himself with acting as a barrier against threats to democracy coming from the direction of his own coalition, such as measures to protect illegal Jewish outposts in Judea and Samaria, established on private Palestinian land.

In addition, we were recently witness to the very peculiar antidemocratic performance of eight senior ministers from Bayit Yehudi, Kulanu and even the Likud, who actively participated in an antigovernment demonstration organized by the settlers on the issue of the government’s security policy. In any normal democracy, all eight ministers involved would have been fired immediately.

For example, back in 1976, Yitzhak Rabin’s first government was forced into an early election as a result of Rabin firing the ministers from the National Religious Party (the forerunner of Bayit Yehudi) because they had abstained in a vote of no confidence over the holding of a ceremony on a Friday in the afternoon, at the Hatzerim Air Force Base, upon the arrival of F-15 fighter planes purchased by Israel from the US, a ceremony that was likely to have caused the participants in the ceremony to desecrate the Sabbath.

However, those were different times, Netanyahu is not Rabin, and democratic principles have become somewhat fluid in current-day Israel.

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