When Defense Minister Moshe Ya’alon decided last Friday to remove the settlers who had taken possession of two houses in Hebron, allegedly purchased legally, he appeared to have been acting on the basis of both formal and substantive democratic principles.
While formal democracy has to do with procedures, especially those related to elections and the separation of powers, substantive democracy has to do with such principles as human and civil rights – especially of minorities – and equality under the law.
In the case of the houses in Hebron the question was not about Jewish versus Palestinian legal rights, but rather about the law that applies to Jewish settlers who purchase property in Judea and Samaria. The law applied by Israel in the territories with regard to the settlers does not prohibit the occupation of property legally purchased from Palestinians (even though according to international law such purchases are dodgy by definition), but requires them to register the deal both with the civilian authorities in Israel and the military authorities in Judea and Samaria. Part of the procedure involves verifying the authenticity of the purchase, since it is no secret that many such purchases have proved to be fraudulent.
The settlers chose to ignore the registration requirements, for whatever reason – as if the law does not apply to them.
Admittedly, the laws that apply to property ownership in Judea and Samaria – at least from an Israeli perspective – are a maze, through which it is difficult to find one’s way, since they are made up of mixture of pre-1917 Ottoman law, 1922-1948 British mandatory law, 1948-1967 Jordanian law and post-1967 Israeli law. However, this in itself doesn’t give the settlers the right to ignore the law, even in the name of a divine command.
However, Ya’alon’s decision also had a pragmatic aspect, which is not necessarily related to legal and democratic principles. Pragmatism in this case dictates that even if one believes that Jews have an inalienable right to settle anywhere in Judea and Samaria, other considerations must also be taken into account besides these alleged rights, including Israel’s overall policy considerations, and especially foreign policy considerations. So here again, the Hebron settlers acted in opposition to formal democratic principles, in that they totally ignored the government’s official policy, as manifested by the defense minister, with the prime minister’s backing.
However, the Israeli democracy, with all its faults and fragilities, was also challenged when Ya’alon was confronted by both Likud and Bayit Yehudi ministers and MKs, who claimed that the “policy” was simply landed on the government and the Knesset without any due consideration and debate, and is thus faulty from a democratic point of view.
Tourism Minister Yariv Levin was one of the senior Likud personalities to attack Ya’alon, on grounds that “just as a person who purchases a house in Tel Aviv can enter it without a superfluous bureaucratic procedure, so it should be also in Hebron.”
“It is time that an end be put to the inappropriate discrimination against the settlers,” he added.
Despite his staunch right-wing positions, which Levin has expressed consistently in bills he has tabled since the 18th Knesset on such issues as the selection of Supreme Court justices and the status of Israel as a Jewish national state, Levin considers himself “a watchdog of democracy” in that he advocates strengthening the separation of powers in Israel, ensuring a proper mirroring in policy of what the people want, and the protection of individuals and their reputations. This definition places greater emphasis on the formal aspects of democracy than the substantial ones, demonstrating the difficulty in determining whether a certain move reflects democratic principles or fails to do so.
The reaction of Bayit Yehudi was much harsher.
“In the midst of a wave of terrorism, the minister of defense acts with determination, without compromise and obtusely to throw Jews out of their home. We are speaking of irresponsibility, conceptual fixation and the stirring of tempers, without any discernible reason... One can carry out the examination of the purchase documents also without throwing Jews out of their home,” Bayit Yehudi announced.
If Israel’s government were run on the basis of proper democratic principles, such words would only be uttered within the confines of the cabinet, or the prime minister’s office – not over the mass media. But who said our government is being run on the basis of proper democratic principles? Besides, Bayit Yehudi chairman Naftali Bennett seems to be in the midst of waging an all-out political war against Ya’alon and Netanyahu over support of the settlers, which he has no desire to keep under wraps.
The prime minister and defense minister are indeed inclined to take decisions between the two of them, and then have the government approve these decisions without serious debate. So even though Ya’alon’s decision in the current case may be considered the right decision from a democratic point of view, Bennett is also right when he complains that decisions in the government are not taken democratically, and that what goes for government policy is usually little more than shots from the hip by Netanyahu and Ya’alon.
The fact that three coalition MKs – Bezalel Smotrich, Oren Hazan and Ayoub Kara – have threatened to stay away from votes in the plenum as of today unless the settlers are returned to their new “homes” forthwith, could actually bring down the government. Yes, that too is part of the rules of the Israeli democratic game, at least when the coalition is narrow.
What are Netanyahu’s options under the circumstances? The first is to give in to the rebels and thus present himself as a weak leader, willing to do almost anything to survive politically.
A second is to let the rebels bring down the government and then proceed to form a new one, which might be less right-wing, but based on a broader and more solid majority, and thus be “more democratic” in formalistic terms.
The third option is new elections, which however might not create a political constellation more conducive to stability and governability, without which democracy (even in the US) is liable to turn into a circus.
Indeed, even without the new Hebron situation Israeli democracy is being challenged almost on a daily basis, especially in its substantive sense, but even in its formal sense. Both the coalition and the opposition must constantly contend with the $64,000 question: what is the most effective way to act under the circumstances? The other day former Knesset Speaker Avrum Burg suggested in an interview on the Knesset TV channel that what the opposition ought to do is simply break the rules of the game and boycott all Knesset proceedings.
I disagree. Doing so will not solve all the inner contradictions that exist in the Israeli society and body politic. In addition, just as the common belief before 1977 that the Labor Movement could not be ousted didn’t stop Begin and the Likud from trying, so today the opposition should continue its Sisyphean efforts to reverse current trends. The EU and even the US might increase the pressure on Israel to change tack, but anyone hoping that salvation will come from these quarters simply doesn’t understand how the world works.
If only Israel had a prime minister committed to democracy rather than to his own political survival, things would look different. But we don’t.
The writer is a political scientist and retired Knesset employee.
Join Jerusalem Post Premium Plus now for just $5 and upgrade your experience with an ads-free website and exclusive content. Click here>>