Netanyahu may be able to contribute more to Israel’s justice and democracy than Nitzan ever did.
By OPHIR FALKTHE view from the Supreme Court: While the debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent(photo credit: Courtesy)
Israel’s justice system is ill. A system once openly trusted by a vast majority of Israelis and the envy of the free world is now trusted by a blind few and in dire need of lifesaving surgery. Benjamin Netanyahu, a prime minister soon to be indicted, cannot be the chief surgeon. But if the 70-year-old leader is strong enough to fight for justice and defend his good name, he will significantly contribute to Israel’s quest for safeguarding a resilient and durable democracy.The historical significance of such a contribution may outweigh US President Donald Trump’s Declaration on Jerusalem, US recognition of the Golan Heights, the legitimization of Jewish settlements, the economic reforms that unleashed Israel’s free market and the new relations with moderate Muslim countries in search of a pragmatic peace.Fixing Israel’s broken justice system may even be more paramount than mitigating the horrors of the Oslo Accords and the Palestinian terrorism it enabled. A durable democracy is as important as denuclearizing Iran. Both are indispensable for the Jewish state’s existence.Undoubtedly, it is detrimental for a nation to be led by an indicted prime minister. It is, however, more detrimental for a Prime Minister to be ousted from office against the will of the people by undemocratic means. It is the people’s right to decide who leads them – at the ballot.Just as national security is too sacred to be in the sole hands of generals, rule of law and justice cannot solely be in the grasp of legalists – not even in those of capable lawyers like Shai Nitzan or distinguished jurists like Aharon Barak.Nitzan, who spent all his career at the State Attorney’s Office, represented state authorities in numerous petitions before the Supreme Court in criminal, security, and administrative matters. He was instrumental in formulating the State Attorney’s policy in many areas, including Israel’s Targeted Killing policy. As state prosecutor, Nitzan’s intentions may have been pure but his consequent actions (actus reus) have compromised Israel’s democracy.During his tenure as state prosecutor, Nitzan took pride in squashing bills drafted by elected legislators that he regarded as illegitimate, before those bills could become law or prior to being petitioned before the Supreme Court. He saw part of his job description to include voter guidance, stating: “I gather people will not want to vote for a candidate suspected of bribery”. Such condescending statements and Nitzan’s briefings of district and supreme court judges concerning Netanyahu’s case, have caused nothing less than the targeted killing of public trust in the State Attorney’s Office. Above all, his tenure will be stained by the serial and slanted leaks that compromised the prime minister’s investigations. These leaks occurred under Nitzan’s watch, and his efforts to disregard them as nonexistent are a testimony to his detachment. Citizens under investigation have rights, even if they are prime ministers and Netanyahu’s right to due process was conceded.Aharon Barak, Nitzan’s mentor, considered to be a brilliant legal mind appears to have squandered principles of Democracy and the concept of checks and balances of late. Barak, who at the age of 38 was awarded the Israel Prize for legal research, climbed to become one of Israel’s most influential chief justices. In recent weeks however, he has participated, some would say led a coordinated effort to remove Netanyahu from office. At a Haifa University lecture, he precariously campaigned that the attorney-general’s decision to indict the prime minister should dictate Netanyahu’s resignation while blatantly disregarding a Basic Law in Israel that specifically states the opposite. A few days later Barak praised Deputy Attorney-General Dina Zilber and her teenager-toned proselytizing, calling her speech, in which she scorched elected officials and pleaded that the public protect her and her colleagues, the best he had heard. It seems like at 83, Barak may have lost some sense of judgment.In the closing paragraph of his final ruling as president of Israel’s Supreme Court, in a case concerning the permissibility of targeted killing, Barak reiterated the same words he used in the case against the use of torture:“At times democracy fights with one hand tied behind its back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of its security stance. At the end of the day, they strengthen democracy and its spirit, and allow it to overcome its difficulties.”
Former judges and appointed civil servants should also consider “fighting with one hand tied behind their back” when addressing ongoing legal proceedings, and refrain from overreaching their legal jurisdictions – even if they can.If law professor and recipient of the Israel Prize for legal research Ruth Gabison is mistaken and Netanyahu can indeed receive a fair trial – that may be his best bet. The indictments against him may show that Netanyahu is no Mother Teresa, but it is also clear that it will be very difficult, based on the evidence or lack thereof, to convince a justice-seeking court of law and the public at large that the prime minister is a corrupt criminal. Not this prime minister. If the public gives Netanyahu another vote of confidence in the upcoming elections, it will be hard to see a court convict him of acting against the public’s interest.If Netanyahu endures Israel’s grinding legal system and prevails in the battle of his life, he may be able to contribute more to Israel’s justice and democracy than Nitzan and Barak ever did.The writer interned at the State Attorney’s Office two decades ago.
