Another View: Avigdor Lieberman and Democracy

Since this is the last blog I can get published before Tuesday’s election, I will briefly treat three current subjects.

1. Avigdor Lieberman’s “indictment law.”

Avigdor Lieberman has a plan for Israel’s anticipated a hung Knesset, revealed by journalist Amit Segal.  He doesn’t think the Knesset will be able to cobble together a majority government, but he thinks it can manage a plurality to pass a law he has thought up, one that would prohibit the President from commissioning a Knesset member with a criminal indictment to form a government.  The law is directed against one (1) person:  Prime Minister Binyamin Netanyahu.  Its purpose is to ensure that even if Netanyahu and his coalition receive an outright majority, in this election or a future one, Netanyahu cannot form a government.

The proposed law has some clever details to make it easier for the Supreme Court to swallow:  For one thing, it will stipulate that it goes into effect only in the next Knesset, not the one that is supposed to adopt it.  But part of Lieberman’s plan is to pass this law with a Knesset plurality and then dissolve the Knesset (where no party can form a stable government anyway) and go to new elections.

Lieberman has been in the Knesset a long time. He knows a lot about Parliamentary procedure and how to use it cleverly. What he doesn’t understand, and never has, is democratic government by the consent of the governed.

I can do no better than paraphrase here the criticism of this plan by Prof. Yuval Elbashan in Yisrael Hayom.  Elbashan terms Lieberman’s plan “Israel’s Capitol,” a reference to the attempt by Trump supporters to overturn the results of the 2020 election in the United States on January 6, 2021:

“There are nations which assault their capitol with sticks and clubs, and there are nations which do so through an “indictment law.”  Here’s how it will work:  The State Prosecution will draw up an indictment, a Supreme Court judge will determine that the crime with which the accused is charged is infamous, and the voter will discover after the fact that his vote was, after all, just a suggestion.  The anti-democratic logic of the law is clear.  If the voters do not elect the person indicted, the law is superfluous.  If they do elect that person, this law will nullify their choice.  The whole point of the law is to veto the choice of the majority at the precise moment when the majority makes its will known.

“There are countries in the world where unelected bodies decide in advance whom the people are allowed to elect.  In Iran, which describes itself as a “religious democracy,” the Guardians of the Constitution, a dozen clerics and lawyers, decide before the voter enters the polling booth who can appear on the ballot.  In Hong Kong, as part of the “progressive democracy” of the Chinese government, a commission was set up in 2021 to decide on the eligibility of candidates.  The “indictment law” seeks to add Israel to this despicable list. . . . In Teheran they exclude candidates in the name of God, in Beijing in the name of the motherland, in Jerusalem they will do so in the name of the rule of law.”

There appears to be some concern among parties of the current opposition as to whether this plan, so patently directed against one person and against the voters’ right to choose, will actually pass judicial muster.  I don’t share their concern.  Judge Yitzhak Amit, who had himself “appointed” chief justice in spite of the law, is a clever and creative fellow who knows how to justify any politically desirable outcome with specious and plausible arguments.

Nonetheless, these legal concerns apparently caused Naftali Bennett to announce a few days ago that he had been advised by legal experts that the proposed law was unconstitutional.  In other words, he was withdrawing his support not because the law was wrong but because he wasn’t sure it would work.

Thanks, Naftali.  That statement is a real boost to public confidence in your leadership.

2. About that indictment.

Part of the irony of Liberman’s proposed law is that it broke into public view during the week that Avihai Mandelblit, the attorney general who indicted Netanyahu, spent squirming on the stand.  Asked about the investigation into Netanyahu, Mandelblit repeatedly said “I don’t remember,” claimed he never authorized “investigative” measures that violated the law, admitted that he hadn’t read through the indictment his underlings prepared nor verified that the so-called “evidence” actually substantiated the alleged crimes with which he charged Netanyahu.

If an ordinary prosecutor had indicted an ordinary joe of breaking and entering the way Mandelblit indicted Netanyahu, the judges would toss the indictment out.  I have always thought that at the end of the longest, most expensive and most controversial trial in Israel’s history Netanyahu will simply walk out of the courtroom a free man.

I am very concerned by what Mandelblit’s testimony reveals about the competence of Israel’s State Prosecution.  We’re talking about the most important show trial of the century, and they can’t even manage a decent frameup.

3. Rabbi Dov Lior.

Rabbi Dov Lior, head of Yeshivat Shavei Hevron, is one of the most prominent disciples of the late Rabbi Tzvi Yehuda Kook, head of Yeshivat Merkaz Harav.  His word is writ for many of the people who live in the communities and agricultural projects in Judaea and Samaria.  Recently he issued a ruling that permits his disciples to gather the olives off trees owned by Palestinians.

I’m not a rabbi.  Nor an expert on Jewish law.  But I am shocked, grieved and outraged by this ruling by a prominent disciple of Rabbi Kook.  Rabbi Kook was an advocate of extending Jewish sovereignty over all Judaea and Samaria and establishing Jewish communities there.  I certainly support establishing such communities and extending Israeli sovereignty over them.  But notwithstanding my poor and incomplete studies in Talmud, one thing that was always clear to me is that stealing the property of non-Jews who own land in Eretz Yisrael is – theft.  This was the position of Rabbi Lior’s mentor, Rabbi Kook, not to mention the position of my own mentor, Rabbi Nahum Eliezer Rabinovitch, the mentor of Rabbi Jonathan Sacks.  Rabbi Kook was quoted as saying that “we have no quarrel with [the private property of private Arab persons].

To translate a Hebrew phrase, “I don’t know where I can carry the shame” of Rabbi Lior’s opinion.  I do know that it is important not to pass over it in silence.