The upcoming November 1 Israeli national elections, the fifth in three years, are not merely another electoral contest, or just the latest effort to break out of political deadlock.
Rather, they represent a key junction for Israeli society, which will have to make fateful decisions about the kind of ethical and legal systems that will govern the State of Israel in the near and distant future.
Two factors are converging to threaten Israel’s democratic norms and rule of law. The first is the likely attempt by opposition leader Benjamin Netanyahu to disrupt the trials underway against him, and the second is the rise of authoritarian political forces that wish to undermine the system of checks and balances and make the Knesset the all-powerful branch of the state. These two elements are joining forces.
Until now, the rule of law in Israel has been based on a critical moral foundation of ethical values, which have underpinned Israel’s democratic-Jewish nature. These values are what enable the balance that Israeli democracy has successfully maintained between the Jewish national cause and adhering to liberal democratic norms.
Such norms include equality of all citizens, freedom of expression, and ensuring individual citizen rights. Israelis have relied on state mechanisms like legislation, the police, state prosecutors, attorney generals and the High Court to ensure these values.
Now, unfortunately, this system is in jeopardy.
Since Israel’s inception in 1948, there have always been substantial disputes between political camps, and in that context, between Herut (the pre-Likud party) and Mapai (the pre-Labor democratic socialist party) over multiple issues. These ranged from whether or not to accept German Holocaust reparation offers in 1952, or decades of dispute over the land-for-peace formula, as well as bitter arguments over whether a free-market economy or deep government-involved socialism should govern the Israeli social-economic sphere.
Over the years, the electorate made its decisions, and Israel continued as a functioning state and society despite these serious divisions. What enabled this to happen was a national consensus on the need for a fundamental ethical framework, which was universally accepted. Institutions made their decisions and society accepted these decisions whether people agreed with them or not.
Until now
For the first time in Israel, the High Court’s authority, or respect for legal institutions and legal rulings, are under attack. This flies in the face of the national-liberal tradition of the Herut party, which was always committed to upholding the rule of law.
The late prime minister Menachem Begin consistently argued that the High Court should have the authority to overturn Knesset legislation if it violates human rights. I am proud to have been the Justice Minister for the Likud when we initiated legislation to guard basic human rights (known as the constitutional revolution).
In 1953, the High Court told David Ben-Gurion that he could not decide the balance between freedom of speech and security, and overturned his decision to close the Kol Ha’am newspaper – not very long after the 1948 War of Independence.
The legal system has not changed. The same judges, now accused of being “leftists” by the pro-Netanyahu camp, ruled against Ben-Gurion. In 1977, Aharon Barak, the attorney-general at the time, was about to indict then-Labor prime minister Yitzhak Rabin, prompting his resignation. However, he indicted a number of senior members of the Labor camp.
This is what the separation of powers looks like, and this is how the judicial branch applies checks and balances on the government and the Knesset – just as it was designed to do – to prevent unchecked power or tyrannical rule.
Liberal democracy has never advocated for unchecked majority rule, and while the majority certainly can select the identity of the government and influence critical policies, it cannot decide who is guilty or innocent. A court has the legitimate and legal powers to also cancel rules that violate democratic norms.
In 1988, we in the Likud led the unusual initiative to ban the racist Kach party from running in the elections. We gathered public information about its activities and delivered it to the National Elections Committee. That is because racism has no place in a Jewish democratic state, whether one is on the Right or Left, Jewish or Arab – according to the Basic Law, which was changed in 1985 by the national unity Likud-Labor government. The change we introduced banned racist parties.
Today, Itamar Ben-Gvir, a student of the late racist Meir Kahane – the founder of the Kach party – who until recently had a photograph of Jewish terrorist Baruch Goldstein in his living room, and who was convicted in the past of support for a terror organization, has gained, to our dismay, legitimacy in the political system. Netanyahu brought Ben-Gvir into the political sphere in order to reach a parliamentary majority.
THIS IS the clearest demonstration of how values once taken for granted are now being questioned. Israel is a Jewish state because it has a Jewish majority, not because it discriminates individually against Arab citizens. The value of equality is now under assault.
The pro-Netanyahu bloc seeks to actively weaken the judicial system because it has identified it as the gatekeeper. The courts, the state comptroller (who has the power to expose corruption and who was weakened), and the police chief have all been targeted by rhetoric designed to delegitimize these institutions and to personally attack those who head them.
This includes anyone who does not fall in line with the pro-Netanyahu agenda, such as the former settler police commissioner Ronnie Alsheikh, the former religious attorney general Avichai Mandelblit, and the former chief prosecutor and yeshiva graduate Shai Nitzan. None have been spared from the wrath of the Netanyahu camp or dodged charges of being “leftist” conspirators seeking to dislodge Netanyahu from power in a nefarious plot.
Such unprecedented attacks are, essentially, attacks on the state as we know it. A state cannot exist without agreed-upon methods for resolving disputes.
Now that the trials have already begun, Netanyahu, who has already accused the judges of being “leftists,” is probably examining options to stop them. The past four elections held in Israel since 2019 were about one issue: The likely effort by Netanyahu to gain legal immunity and prevent criminal trials against him from starting.
A weakened court system, which could then be passed to cancel the trial using a step like the “French Law,” is one such scenario that Netanyahu may hope to achieve.
While Netanyahu has the right to be assumed innocent until proven otherwise, a failure to complete his legal process would constitute a significant blow to the concept of equality in the face of the law.
Zionism is a just cause. Justice is critical to it. Today, those that espouse values like democracy, human rights, and rule of law, are tagged as “left-wing,” although these are the precise values that were espoused by Begin, Herut, and the older version of the Likud party.
Ultimately, all of these developments project onto the core of the Zionist movement. Zionism holds that after 2,000 years of not employing sovereignty or force – with disastrous consequences – the time for the Jewish people to return to statehood has arrived. However, the right to use force comes with the responsibility to preserve righteousness, and that, in turn, is based on the preservation of democratic rights and values.
It is this mix of national and liberal values that the old Herut party once championed, and which the current pro-Netanyahu bloc is threatening to weaken and largely disable.
The writer is a publishing expert with The MirYam Institute. He was deputy prime minister and intelligence minister from 2009-2013.