Opinion |

Prime Minister Netanyahu and His Far-right Allies Wage War Against the Rule of Law

Their campaign will destroy anything standing in its way, including the separation of powers and judicial independence that constitute substantive democracy

Orit Kamir
Orit Kamir
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Prim Minister Netanyahu and his ally Arye Dery on Monday in the Knesset.
Prim Minister Netanyahu and his ally Arye Dery on Monday in the Knesset.Credit: Ohad Zwigenberg
Orit Kamir
Orit Kamir

Everyone's talking, and rightly so, about the serious damage the new government has started inflicting on the vital character of Israel’s democracy; not enough is being said about the blow to the rule of law, which, like a thread, connects all the havoc-wreaking steps taken by the government.

The rule of law is such a basic and fundamental value that it's usually only mentioned in passing, automatically, without people stopping to think of its meaning. The rule of law is the primary foundation enabling a country to be part of the modern, enlightened world.

The rule of law means that the legislature passes laws that benefit the entire public (and with only that goal), and that these laws apply to everyone, including state institutions and their representatives, and anyone else residing within the country’s borders.

No one's above the law or outside of it, not even those who pass the laws, enact them or enforce them. A police officer cannot exceed the authority bestowed on him by law; an inspector cannot enter a place the law prohibits her from entering, and a judge cannot impose a sentence that isn't determined by the law.

Equality before the law, an inseparable part of the rule of law, ensures that state laws apply equally to the entire public, and that they'll be enforced in the same way and to the same degree. In other words, laws passed by the Knesset apply equally to tycoons, migrants, lawmakers and judges, and they must be enforced equally, with no special dispensations, exceptions or stricter enforcement for certain individuals or entire communities.

Equality before the law requires that a president who has committed sex crimes be held accountable, tried and punished according to the law just like any other person; that a member of a crime family enjoy the same protections the law affords to any other person (such as being innocent until proven otherwise, or being subject to a statute of limitations).

The current government led by Benjamin Netanyahu is waging total war against the rule of law, including the principle of equality before the law. It will destroy anything standing in its way, including substantive democracy, the separation of powers, and the independence of the judiciary – all in order to ensure that the rule of law is crushed.

The government’s war against the rule of law has several causes and several aspects. The main cause is that it’s headed by someone who’s been indicted for serious criminal offenses. His central mission is to free himself from the rule of law, that is, from the legal proceedings against him.

In order to accomplish this goal, he's using all the tools his high-ranking position gives him (hence the argument that his position is a conflict of interest). To evade the law, Netanyahu has tried, and apparently will try again, to pass part of the so-called French Law, which calls for a deferment of any prosecution of a sitting prime minister until their term is over.

Netanyahu, according to one of his senior partners in the cabinet, will try to remove from the criminal codes the serious offenses of which he's accused (bribery, fraud and breach of trust). Ever since his trial began, he's been intimidating the judges, inciting against them and undermining their public status while doing everything he can to weaken the judiciary and hamper its ability to impose the rule of law on him.

The legal changes Netanyahu's planning are ostensibly within the bounds of the rule of law, but aren't meant to serve public interests – only his personal ones, while disregarding the public good. Before he was indicted, he boasted that in the name of public interest, he was preventing the passage of the same laws he is now pushing.

The personal motive makes the planned legislation illegitimate. Moreover, since no rank-and-file citizen can take similar steps to evade the law, the prime minister’s moves grossly violate the idea of equality before the law.

Arye Dery, a senior member of government, is also doing everything he can to break loose from the rule of law. To overcome any legal objection to his becoming a cabinet member, Dery demanded and received from the prime minister some personalized legislation that exempted him from the law. This legislation wasn't passed for the benefit of the public, but for the benefit of the powerful. Obviously, no other citizen can escape the rule of law through such personalized legislation.

In tandem, Yariv Levin, the justice minister in Netanyahu’s government, is advancing a revolution meant to exempt from the rule of law not only the prime minister and Dery, but also the entire government, in all its actions. This is the meaning of a bill presented by Levin meant to nullify the professional independence of legal advisers in government offices.

Such advisers are public servants whose mission is to guarantee that the executive branch of government, namely the ministries and their officials, work within the framework of the law and don't deviate from it. They ensure that the executive branch obeys laws passed by the legislative branch, without using power and authority not given to them by lawmakers.

The revolution being promoted by the justice minister is meant to exempt government ministries from being subject to the law. When a minister isn't required to obey an attorney general and can appoint an attorney general who does their bidding, no one will make the government abide by the law, and every ministry and its employees can act with disregard to the law.

A police minister with no one obliging him to follow the law could impose a curfew on people planning to demonstrate. Police officers could arrest people without being authorized to and inspectors could impose fines as they see fit. When courts are weakened and constrained, the public will have nowhere to turn to when they need protection against institutional arbitrariness.

This is how harming the rule of law squashes human rights. Democracy is also squashed, as freeing government ministries from the rule of law means that the legislature, representing the public, can be ignored.

The justice minister is promoting an override clause that will not allow courts to ensure, in the name of the rule of law, that legislation by the Knesset serves the public interest without severely infringing on the public’s rights. This clause is meant to liberate lawmakers from the rule of law. In practice, given the structure of government in Israel, it liberates from the rule of law coalition members who have a majority in the Knesset – the government itself.

If the justice minister’s campaign against the rule of law is designed to give the government unbridled power (something he terms “governance”), Religious Zionism, a dominant coalition party, wishes to obliterate the rule of law for ideological reasons – because it's an important element of progress and the modern world which are, in its eyes, a bitter enemy threatening Judaism, one that must be uprooted.

The secular law is, in their eyes, an evil that must be tolerated, only in order to reach a stage where it can be dissolved and subjugated to a theocratic state and its laws.

In the halakha-based era this party is planning, Israel will no longer be a modern state, and certainly not an enlightened one. It'll return to being the Kingdom of David. This state will be governed by ancient rules.

Furthermore, equality before the law – giving equal status to men and women, to Jews and non-Jews, to straight and gay people – is seen by the party as a despicable, diseased abomination that must be eliminated. Its intention to remove the legal requirement to give equal medical treatment to any person exemplifies its attitude toward the concept of equality before the law.

All of these reasons and actions have combined into a total war against the rule of law. Without the rule of law, Israel will not only cease to be a substantive democracy, but will also no longer be a state of laws in its modern sense.

Tax authorities will be able to exact taxes irrespective of the law, with attorneys general unable to prevent this, and the courts will be too weak to offer help. It'll be possible to expropriate private land, to discriminate against women and silence opposition members, while ignoring any laws. The powerful will be able to evade the law by changing it according to their needs. This is how a tyranny is created.

A government which cancels the rule of law thereby cancels the rules of the game that ensure rights and common decency toward people without power. After taking such a step, the government will have to guarantee its perpetual rule, since if its members are not in power, they too will be vulnerable to arbitrary moves by their political rivals. Thus, immediately after the elimination of the rule of law, a government wishing to survive will do all it can to ensure that it remains in power forever.

As can be seen in Hungary and Russia, in such situations authoritarian governments destroy independent media, and subjugate public broadcasters to make them mouthpieces for government propaganda. They take over schools to prevent pupils from developing critical thinking that could result in the regime being replaced. They change election laws to gain advantage over their rivals.

It’s hard to process that all this is really happening. We take the rule of law as self-evident, just like gravity; but it's happening. You can’t annul gravity, but the rule of law can be revoked. One example is Lebanon, where a deep political crisis led to its total collapse. Anyone horrified that all this is about to happen here, and quickly, must wake up and take action immediately.

The “Dery Law” has already been passed. The justice minister has already presented the outline of a law ending the existence of independent legal advisers in government ministries. Each brick the government removes from the wall of the rule of law brings the collapse closer. Brick by brick, the fortress is falling. If there's anything that can stop this, it's an immense public response that'll make the ground tremble.

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