Column One: Defending the rule of law

If Netanyahu is forced from office, Israeli democracy will be critically, and possibly irreparably, debilitated.

Prime Minister Benjamin Netanyahu addresses a conference in Tel Aviv on February 14 (photo credit: REUTERS/NIR ELIAS)
Prime Minister Benjamin Netanyahu addresses a conference in Tel Aviv on February 14
(photo credit: REUTERS/NIR ELIAS)
Israel’s system of democracy has been under assault for more than two decades. Since the early 1990s, elected officials have fought a losing battle to maintain their power. The legal fraternity and the police, acting with the enthusiastic support and often at the urging of the politically biased media, have seized politicians’ governing prerogatives and powers one by one. These actions have all been justified in the name of the rule of law.
Today, Israel’s democracy – that is, the ability of the nation to determine its course through the election of representatives that share their convictions – is threatened as never before.
Almost exactly 21 years ago, elected officials lost their most important battle to date. On January 10, 1997, Prime Minister Benjamin Netanyahu’s first government approved the appointment of Ronnie Bar-On to serve as attorney-general. Bar-On was a private attorney in Jerusalem. He chaired the Beitar soccer organization in the capital and his was a close friend and former mentor of then-justice minister Tzachi Hanegbi who did his legal clerkship in Bar-On’s office.
The government’s announcement that Bar-On would serve as attorney-general was viciously criticized by the media and Israel’s legal elite. Much of the criticism was rank snobbery. Bar-On was not a member of the club. He had not served as a prosecutor. He was not a law professor. He was just a good lawyer with friendly ties to Hanegbi. How dare the government appoint him?
The basic line of the critics was that Bar-On was so unworthy to serve that his appointment must have been corrupt. The allegations against Bar-On, Netanyahu and Hanegbi were so demeaning and hysterical, the news coverage was so hostile that Bar-On decided he had better things to do.
Recognizing that he wouldn’t be able to properly discharge his duties in the atmosphere of animus that greeted him at every turn, Bar-On resigned two days after he was appointed.
Bar-On’s resignation didn’t end the outcry, however. The media storm went on day after day.
On January 22, 1997, the reporters finally found their “rat.” That evening, a young reporter from Channel 1 named Ayala Hasson reported that just as everyone had suspected, Bar-On’s appointment was born of corruption and if he hadn’t quit Israel’s entire rule of law would have been irreparably corrupted.
Around the time Bar-On was appointed, Netanyahu concluded a deal with the PLO to remove IDF units from most of the mixed Arab-Jewish city of Hebron. The Hebron deal was opposed by the ideological Right. To secure its passage in the Knesset, Netanyahu required the support of the Shas party, led by then-interior minister Arye Deri. In 1997, criminal probes that had been opened against Deri in 1994 were intensifying.
Hasson alleged that Deri told Hanegbi that Shas’s 10 lawmakers would vote in favor of the Hebron deal if Hanegbi appointed Bar-On to serve as attorney-general. As attorney-general, Bar-On would offer Deri a plea bargain that would end the criminal probes against him without determining that his actions rose to the level of moral turpitude. Under Israeli law, public servants convicted of crimes involving moral turpitude are banned from public service for seven years.
All hell broke loose as soon as Hasson gave her report. Channel 2 put four reporters on the story. The allegations dominated news coverage morning, noon and night. Although he dismissed her claims as “rubbish,” Netanyahu ordered the police to probe her allegations.
Netanyahu then became the first prime minister to ever be interrogated “under caution,” meaning as a criminal suspect.
After a brief, intense investigation, details of which leaked like a river to breathless reporters, then-chief of police investigations unit Sando Mazor announced that the police recommended trying Netanyahu and Hanegbi for breach of trust. The police further recommended that Avigdor Liberman, then-director-general of the Prime Minister’s Office, and Deri be indicted for extortion and breach of trust.
The Hebron-Bar-On affair was the first order of business that then-attorney-general Elyakim Rubinstein adjudicated after being appointed by the government.
Amid a media circus that never died down, in April 1997, Rubinstein delivered the media the bad news.
Rubinstein closed the investigations against Netanyahu, Hanegbi and Liberman for lack of evidence of wrongdoing. He kept the probe against Deri open until 2003, when it too was closed.
Despite the fact that the claims against Netanyahu and his ministers lacked an evidentiary basis, Rubinstein’s decision was not the end of the story. Netanyahu survived in office, but he was massively weakened by Hasson’s false allegations of corruption.
Media allegations that Netanyahu was the enemy of the rule of law didn’t let up after Rubinstein exonerated him. Finally breaking under the weight of unrelenting pressure, Netanyahu surrendered the government’s power to appoint the attorney-general, to the Supreme Court. Since 1997, the government’s power to select the attorney-general is limited to choosing between the two or three candidates who were selected and pre-approved by the justices.
The post-Hebron-Bar-On system has rendered the attorney-general effectively subordinate to the court, rather than to the government. And since the attorney-general is in charge of the state prosecution, the state prosecution is also effectively controlled by the court. Consequently, the attorney-general no longer needs to take the government’s positions into account. He no longer is required to defend government decisions when they are challenged in the court.
Over the past 20 years, the government has found itself repeatedly in the untenable position of having a position that the attorney-general refused to represent before the court.
For instance, in 2011, then-attorney general Yehuda Weinstein refused to defend the government’s appointment of Maj.-Gen. Yoav Gallant to serve as IDF chief of General Staff, when a radical NGO petitioned the court to cancel his appointment. With no representation, the government had no recourse but to cancel Gallant’s appointment.
So while the Hebron-Bar-On affair didn’t bring down the government, and despite the fact that it uncovered no government corruption or illegal action, the media outcry that it fueled dictated an anti-democratic political reality. A weakened prime minister and government were coerced into ceding one of their key powers to unelected judges, who in the ensuing years have used that power to undermine the government’s ability to determine national policy.
The situation today in which Netanyahu is being buried under an avalanche of legally spurious criminal probes is more dangerous to Israeli democracy than the Hebron-Bar-On was. In 1997, Netanyahu himself ordered the criminal probe. Today the probes are the work of a shockingly aggressive and openly biased police investigations unit and police commissioner.
The probes Netanyahu is the subject of have little legal weight. He is accused of discussing the possibility of giving in to extortion from Yediot Aharonot’s publisher Arnon Mozes. Mozes offered him better coverage in exchange for shutting down Yediot’s chief competitor Israel Hayom. While 43 lawmakers voted for a law that would do just that, Netanyahu brought down his government to protect Israel Hayom from Mozes and his 43 lawmakers.
A separate probe alleges that in exchange for tax breaks for Bezeq, Israel’s largest telecommunications company, Netanyahu was supposed to receive less hostile coverage at the Walla Internet news portal. Netanyahu’s friend Shaul Elovitch owns both Bezeq and Walla. The notion that Netanyahu has supported corporate tax breaks for decades and that his friend Elovitch might have wanted to diminish his website’s hostility toward Netanyahu is apparently impossible for the police to accept.
And so, Elovitch, his wife and son along with Netanyahu’s former communications adviser and several top Bezeq executives were arrested in raids on their homes in the middle of the night like heroin dealers, and remanded to custody. Since their arrests on Sunday night, these top executives and senior officials have been subjected to abusive interrogations and public humiliations.
The third probe of Netanyahu alleges that in exchange for gifts from his longtime friend businessman Arnon Milchan, Netanyahu lobbied then-finance minister Yair Lapid to extend the time covered by a law that provides tax and tax reporting exemptions on global income to returning expatriates and new immigrants. The fact that Netanyahu has always supported such laws because they encourage capital flow and investment to Israel is beside the point as far as the police are concerned. Milchan supported the proposed amendment and he gave Netanyahu cigars. So Netanyahu must be a bribe taker.
Finally, Netanyahu is accused of offering to appoint a senior judge – then-Tel Aviv District Court president Hila Gerstl – to serve as attorney-general in exchange for closing a criminal probe against his wife, Sara Netanyahu.
Even the most anti-Netanyahu reporters scoffed at this bit of nonsense, which allegedly occurred through intermediaries in 2015. If the allegation is true then not only is Gerstl guilty of failing to report a crime, her friend Supreme Court President Esther Hayut, whom she reportedly confided in at the time, similarly broke the law by failing to report the alleged bribe offer to the police.
But none of this matters to police leakers and investigators. The allegation that Netanyahu decided to repeat the actions he never took in the Bar-On- Hebron affair headlined the news for 48 hours.
Netanyahu’s opponents insist this isn’t personal. This is about the rule of law. If he isn’t forced from office, they say, the rule of law in Israel will be undermined and Israeli democracy will be dangerously weakened.
His critics are right that these investigations endanger Israel’s rule of law. But they have the process and the threat backward.
On their face, these probes are neither supported by sufficient evidence to bring a conviction, nor do they serve the public interest. These are the only two considerations that state prosecutors are supposed to be guided by when they decide whether or not to indict criminal suspects.
In Netanyahu’s case, the police’s insufficiently substantiated, arguably specious claims are the subject of around the clock media coverage, fed by constant leaks from police investigators and underpinned by middle-of-the-night arrests of respected citizens. The undisguised goal of this media coverage is to cultivate a sense among the public – without bringing a case to court – that Netanyahu and his friends and advisers are evil crooks who stop at nothing to get their way.
If these investigations are successful in forcing Netanyahu from office, he will not be the most significant victim of this abuse. If he goes, every current and future politician will know that at any time and under any circumstances he is liable to find himself and his loved ones destroyed by abusive criminal probes. Operating under such terror, no elected leader will ever move beyond the boundaries dictated for him by politicized police investigators, prosecutors, journalists and judges.
In other words, if Netanyahu is forced from office, Israeli democracy will be critically, and possibly irreparably, debilitated.