Two referenda

Every election is a referendum of the outgoing government. In this election the public will judge the government on a wide range of issues. Some people may dislike the government’s handling of the Gaza conflict; or the fact that over the last four years the budget has slipped out of control. Some people will fault the government for not building enough in Judea and Samaria, while others censure it for building there at all. And then there are Prime Minister Benjamin Netanyahu’s legal issues.

If the current coalition loses this election, it will probably be for any number of causes. If, however, Netanyahu is reelected, the people will have expressed a clear verdict about at least one issue. For this election involves a second referendum. A Netanyahu win will demonstrate that the people give little credence to the legal establishment. Rather, they tend to accept the prime minister’s claim that he is the victim of a political witchhunt. Spokesmen of Israel’s legal system – the state prosecution, the attorney general’s office and the courts – often seek to silence public criticism by claiming that they cannot function without the public’s confidence, and that criticism of any kind undermines that confidence. If Netanyahu wins, it will show that the public’s confidence in the legal system is lost. There are ample reasons for the public to doubt the integrity of the legal establishment. Most prosecutors, legal advisers and judges are no doubt men and women of probity and dedication. But not one branch of the legal establishment is innocent of administrative misdemeanors, if not worse, of the kind that they themselves would use to end the career of an elected official who committed them.

Start with the State Prosecutor, Shai Nitzan, who first came to attention as acting attorney-general. Talia Sasson’s position as the head of the state prosecution’s “special missions unit,” was dedicated to selectively prosecuting Jewish residents of Judea and Samaria. When then-attorney-general Elyakim Rubinstein ordered the unit closed, Nitzan simply ignored his superior’s instruction and the unit continued to function. During the protests against the disengagement, Nitzan instructed that demonstrators were to be held under arrest until trial, in violation of the terms stipulated under the law. Arrests were used both to punish demonstrators before the trial and as a deterrent against future protests, although both uses are prohibited by law. As attorney-general, Nitzan twice intervened, without any authority to do so, in civil service tenders. He tried to prevent people he disliked – Dr. Maya Forman, who won the tender for head of the Forensic Medicine Institute, and attorney Camille Attila, who won the tender for head of the State Prosecution’s Fiscal Crimes Unit – from taking up the offices they had legitimately earned. Nitzan was never disciplined for any of these acts.

Attorney-General Avichai Mandelblit has no similar cloud over his record. However, he and his deputy, Dina Zilber, regularly act in contempt of the law and Israel’s elected government. Both the attorney-general and his deputy are civil servants, prohibited by law and by Israel’s civil service code from expressing public policy differences with the elected official they are obligated to serve – like the justice minister. The Knesset’s rules prohibit both from appearing in that body and expressing views at odds with their political superiors. Unfortunately, they have regularly asserted their authority to do so, although their position contravenes the law.

The judicial system itself is not innocent of questionable practices. The judges hold a third of the positions on the Judicial Appointments Committee, and nepotism in making judicial appointments is rife. Recently the Courts Administration was forced, after a long legal process, to admit that it holds two unregistered computerized databases. One is a database of applicants for judicial positions. An examination of the database shows that certain applicants who scored low on exams and personal interviews were nevertheless appointed judges – after the personal intervention of Supreme Court justices on their behalf. The second is a database of the court’s “enemies” – those who have expressed critical opinions of the judiciary on social media. Keeping these databases secret is most likely a violation of the law on the database registry. Establishing the second database is certainly an illegitimate use of government power. In the latter case, the attorney-general’s office acknowledged that the database was illegitimate and ordered that the Courts Administration freeze or erase it.

For the most part, the legal establishment’s misconduct goes unacknowledged and uncorrected, in conformity to that establishment’s desire to portray itself as possessed of unimpeachable virtue and its policy of never, if possible, admitting a mistake. Not surprisingly, this strategy has backfired.

The claims of Israel’s legal establishment to possess wisdom or exceptional rectitude should be ignored. Its ethical conduct is not worse than that of other large modern bureaucracies, but it’s not much better either. It simply shows the effects of having gone too long without effective public scrutiny or discipline. This is an omission that the next government, no matter who leads it, ought to address with energy and determination as soon as it is formed.

The writer is the director of policy research at the Kohelet Policy Forum.

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