The affair of a plea deal for Opposition leader Benjamin Netanyahu exposes another aspect of the perversion of the legal system in Israel – its blatant political nature and irrelevant considerations. It proves, once again, the degree to which prosecutorial authorities have taken over and the unchecked power the State Attorney's Office and the attorney general hold. It underscores the need for reforms that will put the judicial branch in an appropriate independent position, as part of the checks and balances in a democratic government, without it pushing and shoving its way to the top of that triad.
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It is important to make the judiciary, like the Knesset and the government, answerable to oversight and the accepted rules of the game and revoke its authority to make rules that are convenient for itself while avoiding the probing external criticism that is rightfully demanded of every other governmental body.
None of the officials involved – the State Attorney's Office, the attorney general, former Supreme Court president Aharon Barak, and of course, Netanyahu himself – has any real interest in the criminal or legal matter neither the severity of the crimes the defendant is accused of, or the appropriate punishment. Everyone is focused on the political battle: how to protect or thwart any chance Netanyahu will return to power, what the political ramifications would be, and how to preserve or tighten the legal system's grip on the country. This is also the reason for the focus on whether the deal will mandate an admission of moral turpitude and what such a designation would mean, politically – as a condition from the attorney general, in Netanyahu's deliberations, and the criticism in the State Attorney's Office.
The least relevant consideration is being waved by the progenitor of the manipulative "constitutional revolution," which has given the Supreme Court control over Israel at the expense of other branches of government, Aharon Barak. He admits that the goal of his intervention is to preserve the court's status in light of the ongoing process of the public's faith in the legal system being eroded and indirectly, to repay Netanyahu for the long years in which he "protected the court." Barak thinks that Netanyahu's many supporters lost faith in the justice system because of what they see as the politicized criminal accusations against him, and is worried that if the trial continues, it will eat away dangerously at what little public faith remains.
But public faith in the legal system was shaky even before the Netanyahu trial, in a wide range of areas that were systematically taken over. Short as this column might be, we can still present three notable examples. The first has to do with long years of upholding criminal investigations into politicians who criticize the legal system (such as Yaakov Neeman or Reuven Rivlin), which peaked with the egregious misuse of police, prosecutorial, and court authorities in the matter of Haim Ramon.
The second can be seen in the intervention in the government's obligation to preserve its sovereignty against the illegal migrants who force their presence on the public. The Supreme Court justices applied their own worldview in this matter by repeatedly canceling, with dubious explanation, Knesset legislation on the issue.
The third example recently reached new heights when the Supreme Court had the audacity to discuss the very legality of a Basic Law, regardless of how the ruling went. The Supreme Court itself argues that its authority to discuss Knesset laws is anchored in the Basic Laws, which the court gives itself wide room to interpret. After the legal system, through Supreme Court rulings, took control of the most obvious area of politics, it now wants to take thinly veiled control over the selection of politicians, at the expense of the sovereignty of the people.
When, in the name of democracy, the State Attorney's Office steamrolls effective oversight (as former district court president Hila Gerstal did, acting independently) it places the most powerful institution in Israel – and only it – above the need to answer to the public. We would all like to believe that power corrupts us all except the angels of the law, who can wield it absolutely.
Israel democracy needs a strong, independent legal system that recognizes its own limits. Israel is blessed to have generally honest judges, who stand up for human rights, such as on the issue of religious coercion. But too often, they use their power badly when they force their worldviews and chosen values on the public. The status of the legal system is weakened because of failures by the judiciary to restrain itself from jumping into areas that in a democracy fall to the political system – Right and Left. These failures do more damage than anything else to the public's trust, without which the system cannot exist. That trust cannot be rebuilt through a plea deal. For that to happen, the court needs to make a number of courageous rulings and respect the limitations to its status as public servants rather than lords who rule over the people.
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