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Israeli Voters – Not Judges

Prime Minister Benjamin Netanyahu, the head of the Likud, is up and running for yet another election campaign, as so many times in the past. This time, however, he is running despite three serious criminal indictments hanging on his neck. After lengthy deliberation, the attorney-general, who holds the statutory authority to file charges against him, decided to indict Netanyahu.

Does this mark the end of the judicial system’s involvement for now, until the trial begins and verdicts are issued? Or maybe the judicial system has an additional crucial role to play right now: to rule whether Netanyahu is fit to receive a presidential mandate to try to form the next government, if he wins the elections.

The ethical, social and cultural aspects of the dilemma are clear to me. That a person is innocent until proven guilty is a fundamental and deep-rooted principle. It is not just a catchphrase, but a basic axiom that protects the freedom of each and every one of us. However, when it comes to elections for the country’s leader, it would be inappropriate, to put it mildly, to entrust ourselves to a person under a heavy cloud of suspicion. How will we explain this to our children?

There are also practical-functional reasons that we should select a different person for the position, rightly perceived as one of the most challenging in the world. It isn’t just the question of whether a man accused of criminal acts has the time and attention span required for the job, but also, and more importantly, the constant fear among much of the public that the decisions he will take might be influenced by his special situation as an accused. This would undermine the legitimacy of the government’s actions in the eyes of the public, with some of these actions possibly involving matters of life and death. The ramifications of this go straight to the heart of Israel’s national resilience.

But both the moral and the practical questions are matters to be decided by each of us when we go to the polls in March. The immediate dilemma is whether the legal system (the attorney-general and then the High Court of Justice) should leave it to the voters to weigh the matter as they see fit, or perhaps should cast a veto and make a categorical decision on the matter, here and now.

THE STRAIGHTFORWARD language of the relevant statute does not resolve the issue. Since the rule in liberal democracies is that whatever is not forbidden by law is permitted, there do not seem to be any legal grounds for barring a person facing criminal charges from being charged with forming a government.

However, as every experienced jurist knows, this is only one reading of the law – a somewhat naive one. One could present a mountain of arguments, some of them sophisticated, which would lead to the opposite conclusion. The more important question is not what argument can be advanced, but what argument should be advanced, in view of the stormy national reality.

Judicial activism can be justified and even essential, when it defends human rights and minorities. The court needs to roll up its sleeves and extend its hand to those whose liberty and rights are in danger of infringement by the executive or legislative branches. The last word on these matters must be reserved for the courts. This is the vitally important take-away from the painful human experience of the 20th century. This is why we must utterly reject an override clause that would give the Knesset the final say on matters of human rights, and thus pose a threat to each of us, as a potential member of some minority.

But would judicial activism be justified if, on the eve of new elections, it put a prime minister facing criminal charges out to pasture?

Perhaps the law should have established a position on this matter, but it is likely that the legislators never dreamed that such a situation could arise. It is clearly desirable for the Knesset to establish a detailed procedure for dealing with such cases in the future, given that all four Israeli prime ministers who served in the last two decades grappled with criminal investigations. The outcome was different in each case, but the tension between the rule of law and elected officials has cast a heavy shadow over our lives for a generation now.

Still, given that the law is silent on the matter, it is not appropriate for jurists to arrogate to themselves the power to deprive the public of the right to decide for itself, in the coming elections, who will lead us. “Rescue fantasies” that cast the law as the people’s savior, from mistakes they are apt to make, must be rejected.

The public knows all about the indictments. In the absence of a clear statutory provision, the question of whether the ethical and practical aspects of the situation should bar Netanyahu from serving as prime minister must be put to the voters.

It is hard to imagine a more political issue than defining who will be the prime minister and the degree of his suitability for the job, under the current circumstances. A decision by an activist judicial system, which would be perceived as flying in the face of the standard democratic elections, would infringe on the voters’ right to elect and be elected, and would simply be inappropriate.

Israel has reached a dangerous and tragic juncture. Over the last generation, as a country and as a society, we have been foisting the responsibility of making the most fateful and substantive decisions about our national life onto the judicial system. This is a very heavy albatross to hang around the judges’ necks. The result is that the public now tends to buy into the absurd and destructive idea that we have become a “juristocracy.” This is how, sadly, the Israeli legal system has come to embody the doubtful blessing that the book of Genesis (16:12) bestows on Ishmael:

“his hand is raised against every man, and every man’s hand is raised against him.”

The article was published in the Jerusalem Post.