Column One: Israel’s ‘gatekeepers’ vs democracy

A powerful group of unelected, self-appointed “gatekeepers” is challenging the foundations of Israel’s democratic order.

Avichai Mandelblit (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit
Israel has no written constitution – but all the same, it is steeped in a deep and dangerous constitutional crisis. In the balance hangs nothing less than the country’s ability to remain a democracy, where the people elect their leaders and the elected leaders govern the country.
Presently, a powerful group of unelected, self-appointed “gatekeepers” is challenging the foundations of Israel’s democratic order. These self-empowered “gatekeepers” seek to end Israeli democracy by acting as a wedge between the people and their elected leaders and preventing those leaders from using the power vested in them by voters.
The present crisis was revealed starkly on Tuesday in an otherwise unimportant and deeply boring hearing on Israel’s dairy industry at the Knesset’s Economic Affairs Committee.
But to understand what happened, it is important to go back to November 5. That day, Deputy attorney-general Dina Zilber was asked to represent the position of the government regarding a controversial bill that would block state funding to artists and productions that campaign against Israel. Rather than present the government’s position, Zilber brutally attacked the bill. In an outburst entirely bereft of legal argumentation, Zilber effectively said that Israel was losing its soul.
This statement was in keeping with Zilber’s long record of abusing her power as the deputy attorney-general to advance her far-Left political agenda on everything from undermining the development of Israeli communities beyond the armistice lines to requiring religious groups to either permit men and women to participate in their events or be denied access to public facilities.
And it was the straw that broke the camel’s back as far as Justice Minister Ayelet Shaked was concerned. Shaked responded to Zilber’s attack by writing a letter to Zilber’s boss, Attorney-General Avichai Mandelblit, informing him that she would no longer permit Zilber to appear before Knesset committees or the government in light of her abuse of her office and unwillingness to follow the law, which requires her to faithfully represent the positions of the Justice Ministry.
Shaked’s position was well grounded in Israeli constitutional law. Although the state lacks a formal constitution, its basic laws have over time received constitutional standing. And Basic Law: The Knesset makes clear that as justice minister, Shaked is fully empowered to block Zilber from representing her ministry.
Mandelblit, however, didn’t care. Rather than accept that Shaked was operating in accordance with her constitutional authority as the minister responsible for his office, he insisted that Zilber would continue to represent his office and through it, the Justice Ministry – before the Knesset and anywhere else he wishes her to go.
Shaked responded in turn by informing Mandelblit that Zilber may not represent the Justice Ministry before the Knesset in the current Knesset session.
TUESDAY, matters came to a head. Chairman of the Knesset’s Economic Affairs Committee, Eitan Cabel from the Zionist Union, invited Zilber to present the Justice Ministry’s position on regulation of the dairy industry. Cabel acted with the full knowledge that Shaked had blocked Zilber from appearing before the Knesset in the current Knesset session.
Paragraph 21(B) of Basic Law: The Knesset empowers Knesset committees to summon a public official to appear before them, but the law stipulates, “the supervising minister may inform the committee that he will appear instead of the person who was summoned.”
The Knesset’s rules make the minister’s authority even more straightforward. Paragraph 123(A) of the rules provides committees with the power to summon a public servant, but it stipulates that the summons will be made “through the relevant minister and with his knowledge.”
When Cabel summoned Zilber, the summons had to go through Shaked’s office. And when she received the summons, acting in accordance with her constitutional authority, Shaked informed Cabel that she would appear before his committee instead of Zilber.
Rather than accept that Shaked was operating in accordance with the law and leave things be, Mandelblit decided to break the law and foment a constitutional crisis.
He told Zilber to appear before the committee despite Shaked’s expressed prohibition and despite her decision to appear before the committee instead of Zilber.
Mandelblit didn’t explain the legal basis for his decision. Instead, he simply asserted that he has the power to send Zilber against Shaked’s orders because he says he can. In his words before the Knesset’s Comptroller’s Committee, Mandelblit said, “I’m a professional. I’m not a politician. I have a managerial position to run the institution of the legal advisor to the government. And when I need to send a representative to the Knesset, it’s my prerogative. As far as I’m concerned, Zilber will continue to appear at the Knesset.”
TO UNDERSTAND how scandalous Mandelblit’s behavior is, imagine if an American general came before a Congressional committee and attacked the president’s policies. At a minimum, the president would inform the general that he was prohibited from appearing again before Congress.
Now imagine if the chairman of the Joint Chiefs of Staff responded to the president’s move by telling his subordinate general to continue to appear before Congress to present his “professional” opinion of the administration’s policies.
Then imagine that the chairman of the Joint Chiefs of Staff told the general to disregard the president’s orders as the US armed forces were seizing the power to deploy forces from the president and were in the process of deploying US forces to say Ukraine, despite the president’s prohibition on such deployment.
This would be a rough equivalent of the constitutional crisis into which Mandelblit, Zilber and their colleagues have plunged Israel. With each passing day, the government’s legal advisors are seizing more and more powers of governance from Israel’s elected leaders. With each passing day they are constraining more and more the legally vested powers of elected officials to govern. And they are doing so with little regard for the laws as written.
For instance, the Government Service Law bars public servants from openly opposing government-sponsored legislation. But when MK Amir Ohana submitted his bill that would permit government ministers to have substantive power to choose their ministries’ legal advisors, not only did Mandelblit openly oppose the law – which was passed through the Ministerial Committee on Legislation chaired by Shaked – but he even participated in a political protest against it. And, acting in the spirit of their leader, 22 legal advisors for government ministries sent a letter to Mandelblit that was leaked to the media where they urged him to do everything in his power to block the bill from going forward.
IN THE THEORETICAL case of the rebellious US generals, it is clear that a president – any president – faced with such unconstitutional insubordination would fire them. But in Israel’s case, Mandelblit, Zilber and their comrades feel perfectly free to continue absconding with the powers of the government while trouncing the laws of Israel.
This is the case for three main reasons.
First, the political Left supports the legal fraternity as they work to transform Israel into a post-democracy ruled by unelected attorneys. Case in point is Cabel’s summons of Zilber.
Cabel knew full well that Shaked was acting within her authority when she informed him that she would represent her ministry instead of Zilber. But he invited Zilber anyway, and when Mandelblit informed him that Zilber would also appear before his committee, he didn’t refuse to accept her, as he was legally bound to do.
Cabel wanted to help Mandelblit reject the Justice Minister’s authority.
Israel’s political Left recognizes that due to its failures in office, particularly in relation to national security, the public does not trust it to run the country. Consequently, for the foreseeable future, no leftist coalition government has any chance of being elected.
In the absence of political power, leftist politicians like Cabel and opposition leader Tzipi Livni seek to empower the self-appointed “gatekeepers” to block the government from governing. For more than a generation, the “gatekeepers” have used the authorities they have seized to advance leftist ideological and political agendas. For the likes of Cabel, Livni and their comrades, sacrificing democracy is a small price to pay for control of national policies by fiat through radicalized, empowered lawyers.
THE SECOND reason that Mandelblit knows he will get away with ignoring the law is that he is supported in his efforts by his partners in the Supreme Court. For the past generation, the Supreme Court has enacted a judicial revolution under which it has seized the power to overturn laws and government decisions. In his seizure of power from the government, Mandelblit works as an adjunct of the Supreme Court. And the Court largely backs him in his efforts.
The final reason that Mandelblit can act in a grossly unconstitutional way is because the legal adviser to the government is also the head of the state prosecution. Mandelblit can indict anyone he wants, and everyone knows it. Prime Minister Binyamin Netanyahu – or any prime minister for that matter – knows that if he tries to force Mandelblit to act legally – or conversely, fires Mandelblit for acting unlawfully – he will be crucified. The media, the political opposition, and in all likelihood the police will accuse him of corruption. The prime minister, they will say, is a criminal suspect: He fired Mandelblit because Mandelblit intended to indict him.
In other words, the fact that the attorney-general acts both as the government’s legal adviser and as the chief law enforcement officer in Israel means that no one can do anything against him no matter what he does. Mandelblit has unlimited power to seize the powers of others – and no one can rein him in. The opposition won’t, because it wants him to seize the power of the government. The Supreme Court won’t, because they are his partners in seizing governmental powers in the name of the “gatekeepers.” And the government won’t rein him in because of his power to put them in prison.
MANDELBLIT, by all accounts, is a kind and well-intentioned public servant. But he has changed in office. In 2016, he said at a conference that, “the rule of law isn’t the rule of the attorney-general. The policymakers are the elected officials. They have the authority to determine the policies of the government and they hold responsibility for the consequences of their decisions.”
Now of course, his position is far different. Earlier this year he said, “We have to remember that the attorney-general is a clerk. But he’s no ordinary clerk. He’s a clerk appointed by the government to ensure that there is trust in law abidance.”
If power corrupts, and absolute power corrupts absolutely, then the time has come to recognize that Mandelblit’s absolute power has corrupted him. The government must either act forthrightly to limit the powers of the attorney-general, or go to elections and ask for a clear mandate from the public to do so.