The creeping coup of clerks

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This has not been a good week for Israel. The day after a Fatah terrorist self-detonated in Eilat, US President George W. Bush announced his intention to transfer $86 million to Fatah. Furthermore, the Iranians announced this week that they are operating 3,000 centrifuges at their nuclear installation at Natanz. If this is true, the Iranians will have a sufficient amount of weapons-grade uranium to build atomic bombs by the end of the year.

These developments could have been expected to unleash furious public debate in Israel about the status of our ties with Washington and what we must do now to prevent a second Holocaust. But both events went largely unremarked.

 

The Israeli media cannot be bothered with these critical matters for they are too busy reducing our public debate to a pornographic peep show. For the past several weeks, the mass media in Israel have dedicated themselves almost entirely to non-stop discussions of the sexual perversity of our political leaders in light of the criminal investigation of rape and sexual harassment allegations against President Moshe Katsav, and the trial and conviction of former justice minister Haim Ramon for the indecent act of kissing a young IDF officer on the mouth.

 

Even within the narrow scope of public debate, the media could still ask some questions that deserve our attention. For instance, we could discuss how we have raised sons to manhood without teaching them how to be gentlemen, and how we have raised daughters to womanhood without teaching them how to stand up for themselves when men treat them in an ungentlemanly fashion. We could ask how it is that so many Israelis, like our counterparts throughout the West, do not understand that human sexuality is both private and worthy of universal respect.

 

These basic questions have not been addressed in the media storm surrounding Katsav and Ramon's sexual entanglements. And this is not surprising. As a society, we are incapable of debating these basic moral, cultural and sociological questions today because we have abdicated our moral responsibility for our behavior to unelected clerks. We have rendered lawyers – who are not necessarily gentlemen and who do not necessarily have our best interests had heart – the sole arbiters of our social mores.

 

Not surprisingly, our abdication of ethical responsibility to lawyers has brought about the conflation of the completely separate issues of what is proper, on the one hand, and what is legal, on the other. As a result, judging from the vacuousness of the public debate over Katsav's legal crisis and Ramon's criminal conviction, we have lost track of what is really wrong with their prosecutions and what is wrong with our society.

 

What is wrong here is that for the past several months, and at an accelerated pace this past week, Attorney-General Menachem Mazuz has absconded with governing powers beyond his statutory purview and no parliamentary, governmental or public debate preceded or followed his actions.

 

The powers that Mazuz has seized are not limited to the non-legal field of morality. They go to the very heart of Israel's status as a democracy. By definition, a democratic society is one governed by leaders elected by the public who are accountable to the public. In democracies, the public is the source of governmental authority. Mazuz has acted to diminish to near nothingness the public's ability to determine through voting the path the state will take. This he has done by eroding the power of our elected leadership to govern.

 

Wednesday, following a criminal investigation and prosecution nearly unprecedented in intensity, Haim Ramon was convicted of sexual indecency for being a lecherous cad. Yet, while it is disgraceful for a man to be a lecherous cad, it is not illegal. And even more disgraceful than Ramon's undistinguished behavior was Mazuz's single-minded prosecution of that behavior which forced a powerful politician from office.

 

In Katsav's case, the facts are in dispute. Perhaps Katsav is a serial sexual harasser and a rapist, perhaps he is innocent. But what is absolutely clear is that Katsav is a victim of prosecutorial abuse. Even before any indictment has been filed against him, on Tuesday sources at the state prosecution which Mazuz heads leaked the most damning and salacious parts of the draft indictment to Haaretz. In so doing, the state prosecution actively contributed to forming and maintaining a public atmosphere highly prejudicial to the president, who has yet to be charged with any crime or brought to trial.

 

Also on Tuesday, Mazuz shot off a letter to the Knesset's legal adviser Nurit Elstein ordering that Katsav be immediately evicted from his official residence. Mazuz further demanded that Elstein author a legal opinion prohibiting Katsav from staying at his official residence for the duration of his suspension from office. In his words, Katsav's presence at Beit Hanassi "is not in keeping with the aim of the law."

 

It is hard to get one's arms around the depth of contempt for democracy exhibited in this letter. As a democracy, Israel has a separation of powers. The Knesset is not subordinate to the state prosecution. The attorney-general is not the Knesset's legal adviser's boss. Mazuz has no legal authority to demand that Elstein accept his legal interpretations.

 

Mazuz's bullying of Elstein is part and parcel of his campaign to supplant the Knesset as the source of the government's authority. Two years ago he took a giant step in this direction, when backed by the Supreme Court, Mazuz ruled that the Knesset must cede to his office its legal authority to preserve or rescind its members' immunity from criminal prosecution during their period in office.

 

The Basic Law which grants criminal immunity to elected officials for the duration of their tenure unless that immunity is rescinded by the Knesset was enacted to protect elected representatives from criminal investigations that could undermine their ability to carry out the public's will as manifested in general elections. Ramon was a senior member of Prime Minister Ehud Olmert's government and there is no doubt that his removal from office significantly weakens Olmert's ability to govern.

 

Before their power to preserve or rescind their colleagues' immunity from prosecution was wrested from them by Mazuz and the Supreme Court, members of Knesset were expected to weigh the public interest in seeing elected officials prosecuted for suspected wrongdoings against the public interest of ensuring the government is capable of governing in a manner that reflects the public will. In Ramon's case, the Knesset would have debated whether our interest in seeing him prosecuted for kissing a soldier outweighed our interest in seeing him advance the agenda for which he and his colleagues in Kadima were elected.

 

By seizing the Knesset's prerogative to delay prosecution of its members until after they leave office, Mazuz effectively abrogated the law and subordinated all our elected officials – who until then were only accountable to the public – to unelected clerks who are accountable to no one.

 

In response to the public criticism of the Ramon affair, on Wednesday Mazuz announced his appointment of a retired judge to lead an inquiry into the manner in which the prosecution pursued the case. Many aspects of this ferocious prosecution – which entailed, among other things, sending police investigators to Guatemala to take testimony from the vacationing complainant regarding the nature of the kiss she received from Ramon – are worth investigating. But it is impossible to expect that the man Mazuz appointed to investigate Mazuz will carry out a proper investigation.

 

MAZUZ SENT off yet another shocking missive on Tuesday. He informed Finance Minister Avraham Hirchson that he is abrogating his statutory power to appoint the next
director of the Tax Authority. Mazuz has decided that the next person authorized to administer the government's fiscal policies will be appointed by a committee of unelected "professionals." This, Mazuz opined, will serve to "reconstitute public faith in the Tax Authority," which is currently embroiled in a corruption scandal.

 

Mazuz's letter to Hirchson is an outrage. Whether or not the public has faith in its institutions is none of his business. Fiscal policy is a political issue. The voting public elects its political representatives to set fiscal priorities that reflect the public interest as that interest manifests itself at the ballot box.

 

The voters also expect the government to reflect their preferences by overseeing the public prosecution. Yet, over the past decade, the attorney-general and state's attorney's offices have used their prosecutorial power to intimidate successive governments and so prevent our elected leaders from exercising their governing authority over the state prosecution. Since 1997, two justice ministers – Yaacov Ne'eman and Ramon – have been removed from office by the prosecutors they were charged with overseeing. Another justice minister, Tzahi Hanegbi, was neutralized throughout his tenure in office by an open criminal investigation that his subordinates held against him.

 

Reuven Rivlin was prevented from being appointed to office when sources in the state prosecution leaked that they were considering opening a police investigation against him.

 

All four men shared a common goal of reining in the prosecution and amending the law governing the selection of judges. In the latter case, as the law currently stands, judges largely appoint themselves. The four men wished to place elected leaders in charge of appointing judges.

 

It is impossible to accept that it is a mere coincidence that these four men were brought under criminal scrutiny. And this is the heart of the matter. With the support and backing of the Supreme Court, for the past decade, and to the grave detriment of Israeli democracy, the state prosecution has been acting as an independent arm of government. And unlike the Knesset and the government, the state prosecution is unaccountable to the public which did not elect its members and cannot fire them.

 

The public understands that something is wrong with this state of affairs. The day Ramon's conviction was announced, 42 percent of the public said his conviction was unjustified while only 31% supported it. Some MKs even dared to openly suggest that the law must be amended to prevent cases like Ramon's from being brought into the courtroom again.

 

Unfortunately there is little reason to believe that the Knesset will reassert its powers anytime soon. The same Israeli mass media which block discussion and debate about both burning national security issues and basic issues of moral propriety also protect the prosecution from criticism. Politicians like Benny Elon and Rivlin who call for action to restrain unelected prosecutors and self-selected judges are portrayed as opponents of the rule of law. Conversely, politicians like Acting Justice Minister Tzipi Livni and former minister Dan Meridor who praise the state prosecution and back its seizure of governmental and parliamentary powers are lionized as champions of the rule of law.

 

And so it is that the rising threats to our national security are left unaddressed by our elected officials who fear the judgment of state prosecutors more than they fear the judgment of voters. In the creeping coup of clerks, the public interest is cast asunder.

 

 

Originally published in The Jerusalem Post.

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