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The rule of law over the ruler

It's one of democracy's substantial achievements: just like every citizen, Netanyahu will stand before 3 judges, whose task is to decide whether he is innocent or guilty
Prime Minister Benjamin Netanyahu arrives to deliver a statement regarding his intention to file a request to the Knesset for immunity from prosecution, in Jerusalem on January 1, 2020. (Gil Cohen-Magen/AFP)
Prime Minister Benjamin Netanyahu arrives to deliver a statement regarding his intention to file a request to the Knesset for immunity from prosecution, in Jerusalem on January 1, 2020. (Gil Cohen-Magen/AFP)

After a gestation period that dragged on for years, on Sunday – the criminal case of “the State of Israel versus Benjamin Netanyahu” will finally make it to the courtroom. It has not been a happy pregnancy. The child brought into the world at its end could be a guilty verdict against an incumbent prime minister, one of the greatest leaders Israel has had, or an acquittal, from which many will infer, albeit wrongly, that it was never more than a blood libel against an innocent man.

Netanyahu has tried to abort the process by casting aspersions on those who dealt with the case by virtue of their official positions, charging they were directed by ulterior motives. But that thesis cannot hold water: The police inspector general, is a right-wing settler and veteran of the General Security Service. The attorney general is the scion of a Revisionist family, a former major general in the IDF, Netanyahu’s trusted confidant whom he himself appointed to his current office. It is far-fetched to cast them in the satanic roles the scenario proposes for them. Roni Alsheikh is not Mephistopheles and Avichai Mandelblit is not Achitophel.

The path that led Netanyahu to the district court has passed by many protest demonstrations, for and against; the coalescence and disintegration of political blocs; three election campaigns; and deep cracks in the public’s trust in the rule of law — all of which have left Israel battered, bruised, and exhausted. And it seems likely that the battles are not over, and will even become more intense.

What trust will Israelis have in the sometimes fateful decisions that the prime minister makes when he is under the gun of criminal charges and so, is highly motivated to exert his powers to his own benefit? Our packed national agenda takes a heavy toll on Israeli citizens. This is why public trust that these decisions are made on the basis of objective considerations crucial for preserving our national resilience. The ongoing trial is liable to undermine this resilience.

There is also a fear that as the trial progresses, the campaign against the legitimacy of the judicial system will heat up further. Every minor statement or decision will be interpreted, by those who have already made up their mind, as the ultimate proof that the judges are biased and that there is a judicial deep state that seeks to foil the will of the voters.

Both sides of the coin — mistrust of the executive branch and mistrust of the judiciary — are unjustified. The presumption must be that Netanyahu will wield his power as can be expected for a man who has sworn to act in the country’s best interests. He risked his life as a soldier and, as a gifted politician, has devoted it to the service of all Israelis. We must not suspect him of betraying the country. Of course, while the trial is in progress he must avoid any direct or indirect involvement with the law-enforcement and judicial system. This is what will put him to the test. At the same time, it is absurd to think that the judges — whose political leanings are unknown — are trying to railroad the prime minister. We must have full confidence in both the executive and the judiciary.

To counter these fears, it is important to present the half-full glass: Israelis can be proud of the fact that despite the difficulties involved, it has been demonstrated that the leader, too, is subject to the law.

Just like every ordinary citizen, Netanyahu will stand before three judges whose task is to decide, on behalf of us all, whether he is innocent or guilty of the charges. This is the ultimate illustration of equality before the law. Even a man in whose hands we placed, only a week ago, the responsibility for the most critical decisions in our national life has his day in court, in the same way as all the rest of us would. The judges will weigh the evidence  and decide to acquit or convict. Given that they reached the bench via a professional – rather than a political – process, we should have confidence in their verdict—whatever it may be.

This is no trivial achievement. Some bemoan the state of Israeli democracy and compare the country to semi-democratic countries such as Hungary, Poland, and Brazil. This is a wild exaggeration. The smooth opening of Netanyahu’s trial is the incontestable proof of this. Even a comparison with our great sister democracy, the United States, illustrates our relative strength. As we may remember, President Trump declared that he had the power to pardon himself if convicted of a crime. Rudi Giuliani, a former federal prosecutor and former mayor of New York City, even claimed that Trump could shoot former FBI director James B. Comey in the Oval Office, and still not be indicted for doing so (but only face impeachment).

Coming back to us, the Netanyahu family’s fondness for the Bible is well known. So we can safely assume that the prime minister is familiar with the precept that the king must “observe … these laws and practice them in action (Deuteronomy 17:19). On Sunday, when he faces the judges and asserts his innocence, he should also remember that even he, the ruler, is subject to the law.

About the Author
Yedidia Stern is a senior fellow at the Israel Democracy Institute and professor of law at Bar-Ilan University.
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