March 7, 2020


Israeli democracy is no longer a given - but there's hope: While virulent rhetoric by Likud leaders undermines the legal system, Arab-Israelis have voted to be partners in a shared society (Arye Carmon, MAR 7, 2020, JTA)

The failure to distinguish between the decisions of voters and authorities entrusted to enforce the law poses a tangible threat to the future of Israeli democracy. Those authorities required to enforce the law -- among them the police, the state attorney's office and the attorney general -- determined after conducting a long and thorough independent investigation that the law demands Netanyahu be tried in court on serious criminal charges. However, his Likud supporters argue that the political decision by Israeli voters overrules the decisions made by the state's legal authorities.

About 2,300 years ago, Socrates rejected his students' pleas to flee from the death penalty imposed by the Athenian court, explaining that he could not violate the contract between the citizens and the laws of the state. By contrast, Netanyahu and his supporters are playing a game that is contrary to the fundamental rules of democratic societies in the 21st century.

Since the investigations against Netanyahu began about four years ago, he has incessantly waged a rhetorical attack against each of the legal authorities involved in the probes. This rhetoric reached a crescendo after the indictment was filed in January. Netanyahu, now desperate to avoid prosecution, seems ready to jettison any remaining concern for the rule of law.

The fragility of Israel's democratic foundations can largely be attributed to the fact that the Jewish people had no tradition of responsibility for political sovereignty to build upon when establishing the state and expressing its right to self-determination. This type of tradition was impossible to develop during 2,000 years of exile.

The lack of a tradition of political sovereignty accentuates the deep divisions in Israeli society, which has changed at an unprecedented pace over the course of seven decades. Demographically, Israel has grown by 1,200% during this period, and it has failed to slow the downward slide from diversity to division. The lack of a tradition of political sovereignty explains why the state's founding fathers gave up on establishing a constitution. The lack of this tradition and, consequently, the lack of a constitution, is what enables Netanyahu -- unlike Socrates -- to try to evade the wheels of justice by railing against law enforcement authorities and spewing incitement that widens the divides.

Israel is a formal democracy with institutions and procedures. It conducts elections and its parliament enacts legislation. But it is not a substantive democracy. It does not rest upon a written constitution anchored by a bill of rights that outlines the respective authorities and responsibilities of each of the three branches of government and ensures its continuity. A written constitution is not only a guide for sound conduct by institutions and other stakeholders. First and foremost, a constitution is an educational document designed to instill the guiding values of civic behavior in all members of a society.

In the coming days, Israel's Supreme Court will need to address a lacuna in the state's legal system. According to its previous rulings, government ministers and mayors cannot continue to serve in their positions once an indictment is served against them. On the other hand, under Israel's Basic Law, an indicted prime minister cannot be removed from office until a final judgment is rendered. As noted, however, Netanyahu is now only an acting prime minister.

...but we do have an electorate eager to get rid of our Bibi.

Posted by at March 7, 2020 6:55 AM