In a recent conversation with a European ambassador, I asked about the possible consequences of the elections to the European parliament, which are scheduled to take place in May 2019. According to current polls, rightist, pro-Israel parties from a host of EU member nations are projected to win the vote in May.
I was curious about the impact the projected results may have on European Union policies towards Israel.
His answer was straightforward.
“European parliamentary election results aren’t particularly significant,” he said with a shrug.
“It’s true that pro-Israel rightist parties are expected to do very well. But their victories won’t impact the EU’s foreign policies or any of its substantive policies. All the substantive policy decisions are made by the European Commission in Brussels.”
“The European parliament doesn’t have influence over what happens in Brussels. Its decisions are basically declarative resolutions and opinions. They have no force of law,” he explained.
Formally, the situation in Israel is quite different from the situation in the EU. Unlike the European parliament, the Knesset has the power to legislate laws. And the government, which is comprised mainly of members of Knesset, implements policies it was empowered to adopt by the mandate it received from the voters at the polls.
But in practice, with each passing day, the situation in Israel is becoming more and more similar to the situation in the EU. Every day, Israel’s bureaucracy, led by the legal system, seizes more and more powers from the country’s elected leaders.
THIS WEEK, we received a glimpse of how this seizure of powers takes place behind closed doors, far from the eyes of the public.
On Sunday, Jerusalem District Police commander Maj.-Gen. Yoram Halevy abruptly submitted his resignation to Internal Security Minister Gilad Erdan. Halevy was the likeliest candidate to serve as the next inspector general, after Erdan’s first choice, Police Maj.-Gen. Moshe Edri’s candidacy was rejected by the Appointments Committee run by former Supreme Court justice Eliezer Goldberg.
On Monday, Hadashot news reported that Halevy resigned following a meeting last week with attorney-general Avichai Mandelblit. Also in attendance at the fateful encounter were Erdan, State Prosecutor Shai Nitzan and Deputy Attorney-General Dina Zilber.
Halevy had been under the impression that Mandelblit would defend his appointment before the Goldberg Committee, and if necessary, before the Supreme Court. In his legal opinion regarding Halevy’s suitability for the job, Mandelblit concluded that there is no legal basis for preventing Halevy from serving as Police inspector general.
At the meeting, Mandelblit explained to Halevy that law was not the issue. Despite the absence of legal justification for rejecting his appointment, Mandelblit said he would not defend Halevy both before the Goldberg Committee and before the Supreme Court.
What do you mean? Erdan and Halevy asked. How can you reject Halevy’s nomination when there are no legal grounds for doing so?
Mandelblit’s reasoning should distress all Israelis who care about democracy.
MANY YEARS ago, Halevy committed a serious disciplinary infraction. An inspector general, Mandelblit argued, needs to be “as pure as the driven snow.”
Halevy’s past infraction made him impure.
So no dice.
There is a legitimate debate to be had about the sort of character you would want in a police chief. On the one hand, you could argue that it is better to have a chief of police with a checkered past. The chief law enforcement officer is well served with some bad behavior in his rearview mirror. It makes him more likely to treat accused lawbreakers with humility.
An equally legitimate argument can be made for having a straight-as-an-arrow lawman fill the top spot in the police. If you want the law enforced without prejudice, hire a chief with unstinting respect for the law who cuts no corners with crooks.
However you come down on the question of the suitable character for a police chief, the question itself has nothing to do with the law. Israeli law is devoid of any mention that the inspector general of police must be as “pure as the driven snow.” The issue of character is a normative matter, not a legal one.
The attorney-general has no special qualifications to determine proper norms for public officials. Certainly, he is no better qualified to decide the proper character of the police chief than the Internal Security minister. And Erdan has the advantage of being an elected official. The public empowered Erdan to make his decisions. Mandelblit, in contrast, was chosen by an appointments committee led by a former Supreme Court justice after the committee rejected several other candidates the government had asked it to screen.
Mandelblit’s extralegal – indeed lawless – decision on Halevy didn’t occur in a vacuum. It occurred in the context of a full-blown bid by Israel’s legal fraternity – from the attorney-general and his subordinates to the Supreme Court justices – to seize the governing and legislative prerogatives of Israel’s elected officials in every sector of public life.
Supreme Court justices have arrogated to themselves the power to cancel duly promulgated laws and government decisions. The justices have seized the power to dictate economic and military policies from government ministries and from the IDF. Indeed, the government’s decision to move to early elections in April, rather than wait to hold elections in November was fomented by the Supreme Court’s seizure of the IDF’s power to set draft policies.
SPEAKING AT a conference this week, Mandelblit insisted that his legal opinions have the force of law and that ministers are required to abide by them. Given that Mandelblit has also asserted the power to cancel laws and reject the legitimacy of legislative initiatives he doesn’t like, his statement signaled that as far as he is concerned, he is Israel’s sole legislator. Knesset laws can only be enforced if he agrees to enforce them. His decisions, on the other hand, are final.
Mandelblit strengthened his position this week through his unbridled criticism of government ministers for advancing a bill to expel the families of terrorists from their homes.
Mandelblit said, “The proposed law to expel families of terrorists inside the territories is unconstitutional.”
But Israel has no constitution.
He said the bill, “raises difficulties in the international arena.”
But the attorney-general has no particular diplomatic qualifications. The government is in a much better position to judge Israel’s diplomatic interests than the attorney-general.
Mandelblit insisted: “The argument that my objection [to the proposed law] harms national security is devoid of all foundation.”
But the attorney-general has no professional claim to expertise in national security issues. He has no way of knowing that his assertion is true. Indeed, his opinion is no better than that of the average man on the street.
Through his actions and statements, Mandelblit has demonstrated over and over that he believes that as the attorney-general, he is the ultimate arbiter of all national policies. He gets to decide normative standards. He gets to decide which laws can pass or be defended. He gets to decide who can serve in senior executive positions. He gets to decide on Israel’s foreign and defense policies. And he gets to promulgate laws with a stroke of his pen. What he says goes. What everyone else says, only goes if he says it goes.
And for all of that, making law out of legal briefs and interfering in all aspects of government and Knesset operations is only one part of the attorney-general’s job. The other part involves presiding over the state prosecution.
THERE ARE two ways to choose a cabinet minister in Israel – through elections and through prosecutions. In 1993, the Supreme Court made what has become known as the “Pinchasi” ruling. The justices ruled that government ministers must resign if the attorney-general indicts them. The Pinchasi ruling transformed the attorney-general from the government’s legal adviser into the ultimate boss of elected leaders.
With his power to indict elected officials, Mandelblit wields the power to decide who gets to serve in government. In the years since the Pinchasi ruling, Mandelblit’s predecessors repeatedly abused this power. As former justice minister Daniel Friedman wrote in his book, The Purse and the Sword: The Trials of Israel’s Legal Revolution, attorneys general wrongly indicted then justice minister Yaakov Neeman, then agriculture minister Rafael Eitan and then justice minister Haim Ramon.
This then brings us to the attorney-general’s outsized power in the upcoming elections and the coalition talks which will follow them.
Currently, Mandelblit is sitting on three criminal probes of dubious quality against Prime Minister Benjamin Netanyahu. In a signal to both the public and to the politicians running for office, right after Netanyahu announced Monday that the party heads in his governing coalition had unanimously decided to hold the next elections in April, the State Prosecution announced that the elections will not affect their ongoing investigations of Netanyahu.
Most of the discussions of Mandelblit’s likely moves involve the question of whether or not they will impact Netanyahu’s ability to win the elections. But the real question is how Mandelblit’s decision, whenever he makes it, will impact Netanyahu’s ability to govern in accordance with the will of the voters.
If, as widely anticipated, Netanyahu and the Likud win in April, he will need to form a coalition with several smaller parties. Although Likud’s natural coalition partners in the right-wing and religious parties have stated that they will join a coalition with Likud even if Netanyahu is indicted, those parties together are polling fewer than 61 mandates out of a total of 120.
If this remains the case after the elections, then to form a government, Netanyahu will need to bring in populist or left-leaning parties. And the leaders of populist parties and center-left parties have signaled or stated outright that they will not join a coalition with Netanyahu if he is indicted.
In other words, by dangling the Netanyahu probes over the heads of politicians like a sword of Damocles, Mandelblit is effectively threatening to nullify the results of the elections if the public doesn’t vote as he and his fellow attorneys wish.
And so we return to the European ambassador’s dim assessment of the European parliament. It works out that European voters agree with him. Since 1999, voter turnout has never reached 50% and it has dwindled from election to election. A mere 42% of voters showed up in 2014.
The Europeans are right. Why vote if your vote is meaningless?
In April, Israelis will choose which party to vote for based on any number of considerations. But in the end, only one central question will be decided on April 9.
Do we want for our votes to matter, or are we prepared to have all aspects of governance dictated to us by unelected bureaucrats governed by unelected lawyers?