Election implications. The Sum of All Fears

The latest elections in Israel were a defining moment for the character of Israel as a democracy and a society. A watershed. I fear that the Israel after these elections will have little semblance to the Israel of before.

The majority of Israelis, are captive to Netanyahu’s cult of personality.

Netanyahu went into these elections under three indictments for bribery, corruption and breach of trust. In any normal democracy, he would never stand a chance of winning. And yet, he was reelected. Again. How is it that he has convinced more than 50% of Israelis to believe him, that he is unjustly targeted as a victim of a seditious Deep State conspiracy, which implausibly includes the press, the Police, the State Prosecution and even the Attorney General whom he himself appointed, and not the professional opinion of the police and some of the best criminal lawyers in the country? How did he manage to persuade them that all of these institutions, which are the very foundations of a working democracy, have a hidden political agenda and thus have no credibility? Is it not absurd, that a Prime Minister knowingly undermines the public’s faith in the very bodies which we rely upon to maintain law and order and ensure that justice is done? What of the long term damage this will have on the public’s trust in these institutions? And despite this, they overwhelmingly reaffirmed their trust in him. Netanyahu, our very own Pied piper from Hamlyn, leading us and our society over the cliff, with his golden tongue.

Netanyahu announces his campaign under indictment.

Caught up in a current of ultra-nationalism, 55% of Israelis are willing to compromise on decency… and democracy.

The elections are over. That does not mean that we should forget – or forgive – the manner in which these elections were won. Netanyahu unleashed his id, in all its grotesque ugliness, irreverence and vindictiveness. His campaign was unconscionable, disgusting, and base, evoking an anger and nausea at the sheer indecency of it.

He shamelessly exploited his position of Prime Minister to bypass the constraints of the election laws. With calculating cynicism, he contrived for a wave of dubiously pressing affairs of state to coincide with these elections, giving him considerable media coverage, in order to remind us how indispensable he is as a statesman. It was an elaborate act of Dr. Jeckyll and Mr. Hyde. One day he is the consummate statesman, charming world leaders, meeting with Trump and Putin and hosting the Brazilian, Bolsonaro in Jerusalem. The next day he is guttersniping, insulting and besmirching his rivals. The sheer viciousness of his attacks on Gantz was unseemly. He charged Gantz, with being emotionally unstable and incapable of leading the country. This is the same man whom Netanyahu himself appointed as Chief of Staff and deemed stable enough to be entrusted with Israel’s defense and security, and to be responsible for the lives of about 635,000 active military personnel and reservists. He sought to besmirch Gantz’s military record, hinting that his indecisiveness under pressure led to the death of Madhat Yussuf, z”l. Yet, despite knowing this, he still appointed him Chief of Staff, and thought he did an impressive enough job – including presiding over two major high pressure operations in Gaza – to extend his tenure for another year, and upon his retirement, to publicly express the highest praise and deepest appreciation for 40 years of service to Israel’s security. I find it hard to reconcile this contradiction. Either Gantz truly is unstable, which means that Netanyahu’s lack of discretion in appointing him to Chief of Staff and entrusting him with the defense of the country is grossly irresponsible and should disqualify him as Prime Minister. Or Netanyahu is an unconscionable liar and therefore anything he says cannot be believed. Either way, those are not characteristics which should instill confidence in him as Prime Minister. Yet, despite this dissonance, despite the indecency of dragging a decorated Chief of Staff’s reputation through the mud, Netanyahu’s supporters continued to endorse him, and in so doing, his behavior.

If one thing has always united all Israelis, and has been above the depravity of our politics; it is the reverence we hold for our fallen soldiers. We would never do something so ghoulish as to exploit their deaths, their sacrifice, for political mileage. Never before have we stooped so low. Until now. Without batting an eye, Netanyahu broke this taboo three times. As if oblivious to this sacrilegious sullying of their memories, his supporters displayed indifference.

In their display of this indifference to the indecency of his entire campaign, the majority of Israelis have legitimized it. This does not bode well for future political discourse.
The clouds have gathered for a constitutional crisis.

Batten down the hatches. The constitutional onslaught we witnessed in the last Knesset sitting, with the passage of the Nation State Law, the anti-BDS Law, and the law prohibiting the police from making public its recommendations after investigation of public officials, is but a tropical storm in comparison to what awaits us this Knesset sitting. The gathering clouds on the fast encroaching Knesset horizon, promises to reach level five on the constitutional Saffir-Simpson hurricane scale.

Nation State Law. A constitutional onslaught?

a) Let us start with the obvious; for the first time in our history, we will find ourselves with an incumbent Prime minister under indictment and possibly on trial. Ironically, it was Netanyahu himself who set the standard, in 2008, when he said “A Prime Minister who is up to his neck in investigations, does not have the moral mandate to make such fateful decisions for the state of Israel, because a fear exists that he will make decisions based upon his personal interests for his political survival, and not on the national interest”.

During the election campaign, the surreal concept of “an indictment coalition”, meaning a coalition which would remain loyal to the Prime Minister and protect him, even if indicted was discussed in earnest. The first salvo of an impending constitutional crisis came early, the morning after the election, when MK Miki Zohar, not particularly known for his political refinement, went public on national television and said that the people had spoken and it would be best if the Attorney General took note and dropped the indictments. In essence, what Zohar is touting, is that the Prime Minister is above the law. It does not apply to him. This, while for months prior, every single Netanyahu apologist spoke about how Netanyahu was legally entitled to the presumption of innocence, like every other citizen in Israel. So, which is it? Is Netanyahu to be judged according to the same standards as every other citizen, or is he above the law? Because if he is to be judged according to the same standards as all Israeli citizens, then in a properly functioning democracy, any public official suspected of corruption, is removed from his place of work and restrained from going near it, in order to prevent him (or her) from destroying evidence, or abusing his or her power and authority in order to intimidate witnesses or investigators. The fact that he does not do this, and that his Republican Guard of Likud MKs closes ranks and supports him, undermines the integrity of our democracy.

b) During the election campaign, Netanyahu refused to pronounce that he would not seek to pass a law which grants him immunity from prosecution while in office. The very real possibility that such a law will be passed this session, with retroactive effect, would actually put Netanyahu above the law in practical terms. More damning, those that support this, do not do so out of legal or constitutional conviction, but rather out of political expedience – what political-ideological goals they can achieve under Netanyahu’s Prime Ministership as a quid pro quo? And that makes this initiative all the more obscene. Sacrificing our constitutional-democratic system for the fulfilment of their ideological aspirations, is unforgivable.

c) For a number of years, Right wing politicians in Israel have become increasingly critical of the Supreme Court, which has frustrated their ideological ambitions on more than one occasion. Now, they believe that they have the power to pass a bill which will allow the Knesset to override Supreme Court decisions. Moreover, whereas in other countries, a 2/3 majority would be required to override the Supreme Court, the advocates of this law want just 61 seats to have that authority. This should be a Constitutional issue, which addresses the balance of power, and checks and balances in our society, between the three arms of government, so that no one person or political coalition will have unbridled power. Given our parliamentary system, the legislature in practical terms, is an extension of the executive branch, as opposed to being a check on the executive’s authority. Thus, now subjugating the authority of the courts to the will of the Knesset, would be an abandonment of the concept of separation of powers, and thus of the democratic system itself. It is a debate about the very character of our political system.

The Israeli Supreme Court. Maybe not so supreme in the future?

The motivation to pass a bill which allows the Knesset to override Supreme Court decisions, is parochially political – to enable those in power to pass laws in order to achieve their ideological vision. Too often, the Supreme Court is reluctantly forced to stand resolute, as the last refuge against assaults on people’s rights, and the rampant aggression and land grabbing of the settler movement. If this legislation is passed, there will no longer be a balance of power, and we will find ourselves in the midst of a deep constitutional crisis. Israel will no longer be a democracy. It will be something else, more despotic.

d) Make no mistake; the Supreme Court Override Law is the lynchpin legislation for all the legislative plans of the forthcoming government which will follow. It sets the stage for a major upheaval of the laws in Israel’s law books. If you think the Nation State Law which was passed last session redefined the character of Israel, you ain’t seen nothing yet. Not for nothing, the opening demand by the Bayit Yehudi party to join the coalition, is the legislation of the Override Law within sixty days.

For six years, Right Wing settler politicians have been agitating to extend Israeli Law to Jewish settlements in the West Bank. Now, it seems like the time is ripe: the nature of the fractured coalition which will be formed, gives every coalition party the power to topple the government, exposing Netanyahu’s government to a level of political extortion unthought of up to this point. Given his obsession to remain in power at all costs, and his dependence on the extreme Right to remain in power, it seems inevitable that this law will pass. Netanyahu has already set the platform, when he initiated a policy decision in the Likud, allowing to move this initiative forward. So, moving to legislate this law has already been given the go-ahead. But first the Override Law, in order to ensure that it will not be struck down by the Supreme Court.

To be clear, the law which will extend Israeli law to Jewish settlements in the West Bank is a euphemism. In effect, it is annexation, without announcing annexation. In fact, it is even more convenient than annexation.

Annexation would require Israel to absorb the 2.8 million Palestinians living in the West Bank, making them citizens. There is no way that the current government would then grant these Palestinians the right to vote, thereby jeopardizing a Jewish majority in Israel. It is more likely that they would decide to disenfranchise the Palestinians, tearing away the last vestiges of Israel’s claim to being a democracy. The diplomatic fallout and the sanctions that would follow would cripple us.

But, by “merely” extending Israeli law to settlements, Israel would hope to conveniently bypass this minefield, because it would not have to grant citizenship to the Palestinians, thereby ostensibly maintaining the façade of Israel still being a democracy. However, for all intents and purposes, it would be selective, de facto annexation – of the areas Israel wants only to annex. What of the Palestinians? They will probably remain with the status they have now, with no franchise and a permanent situation of limbo with regard to their status. (Bantustans, anyone)? This will create a situation where there is one set of laws for Jews living in the West Bank, and another set of laws for Palestinians. Some will say that this is the situation we already have today. The only difference is, that instead of it being government policy, now it will be inscribed into our law books, our “constitution”. That, is Apartheid.

The question is, having lived in an Apartheid state, which I decided to leave, do I want to live in another? Do you?

About the Author
Paul Mirbach made aliya from South Africa to kibbutz Tuval in 1982 with a garin of Habonim members. Together they built a new kibbutz transforming rocks and mud to a green oasis in the Gallilee. He served in infantry during his army service, serving in both Lebanon and the West Bank, including on reserve duty during the first intifada. Paul still lives on Tuval with his wife and two sons.