Coalition agreement a symptom of Israel’s constitutional void

At the end of the Jewish holiday of Passover, which celebrates a people’s liberation from slavery and the start of a new era, more than 2,000 people held a rally in one of Tel Aviv’s main squares, waving black flags to express their fear of the slow death of Israeli democracy under Prime Minister Benjamin Netanyahu. In their modernday version of the Passover story, these defenders of democracy would like to see the exodus of Netanyahu from the prime minister’s residency and the liberation of today’s Israelites from a leader who, in order to avoid facing charges of fraud, bribery and breach of trust, is ready to grind the democratic system to dust. With the coalition agreement signed on Monday evening, their work to defend Israel’s democracy has been cut out.

What the well-intentioned demonstrators in Tel Aviv, who are deeply concerned with the destiny of their country, should ask themselves is this: Is Netanyahu the sole cause of Israel’s current political chaos with its threat to democracy or is he merely the symptom of some deeper authoritarian trends? Netanyahu, together with his wife and eldest son, in their obsession with power and their paranoid “us against the world” mentality, are cynically exploiting the most powerful position in the country, and hence are detrimental to the future of the country as democratic. Their removal would be a first positive step in repairing the damage inflicted by the self-styled “irreplaceable” family.

However, the foundations of Israeli democracy could be more robust, particularly if there was a written constitution that enshrined the notions of separation of powers and checks and balances. Perhaps then a politician who had been indicted for illegally exploiting his position to take expensive presents from businessmen with interests in Israel, or who promoted legislation to advance the economic interests of certain media moguls in return for favorable coverage in their outlets, would have been suspended from public life until his criminal case was settled by the courts. Instead, a defendant in the most serious corruption case in the country’s history is heading a major party and is allowed by law to negotiate a governing coalition and lead it for at least the next 18 months. This is a systemic anomaly, not just an anecdote. Worse, in what can only be regarded as good old chutzpah, the main stumbling block to signing a coalition agreement was Netanyahu’s demand that his Likud party be given veto power over appointments to the Supreme Court

— a departure from the existing procedure that requires approval by seven out of nine members of the appointments committee. In essence, Netanyahu was proposing that the keys to the prison be given to the prisoners; and Gantz agreed to that in a complete U-turn on his promises to the electorate.

After all, the Israeli prime minister — despite his bravado in public, his endless delaying and manipulation tactics, and the unexpected help from the coronavirus pandemic — knows full well that, sooner rather than later, he is going to stand before a judge and go through a prolonged series of legal procedures. It is also most likely that, at some point in the future, convicted or acquitted, the case will be decided by the highest court in the land, the Supreme Court. Netanyahu’s insistence on controlling the appointment of judges has an ideological undertone but, considering his legal woes, it is mainly a personal interest that has turned into a mixture of crusade and vendetta against the legal system. In this, he finds allies within Likud, the settler movement and the ultra-Orthodox parties, who share with him a deeply ingrained, anti-democratic worldview. The principle that everyone is equal in the eyes of the law and that a government may not act arbitrarily is, for these sectors of Israeli society, an inconvenient obstacle to their promotion of laws that discriminate against minorities, attacks on the human rights of Palestinians in the Occupied Territories, and introduction of legislation and practices that are gradually turning Israel into a state ruled by Jewish holy law, or “halacha.” Between Netanyahu clinging to power by the skin of his teeth and being concerned with selecting judges who will be more lenient with him; those who would like to see the justice system subordinated to the political one as a mere rubber stamp of the executive branch; and an opposition that is unconvincing in its determination or strategy to resolutely oppose these anti-democratic assaults, Israel’s system of governance is in genuine jeopardy more than ever. Netanyahu’s masquerade of calling for a unity government to deal with the coronavirus pandemic was exposed as he blocked the initial coalition agreement on the issue of nominations of judges to the Supreme Court. It made explicit what was apparent from the beginning of his negotiations with Benny Gantz’s Blue and White alliance — that the coronavirus crisis was being exploited by Netanyahu to guilt his coalition partner into joining a government despite the latter’s explicit promise not to sit in government with someone who is a defendant in a criminal case. For a brief moment, it seemed that Gantz and his party would resist Netanyahu’s demands and the temptation to join a government led by a defendant facing corruption charges. This fleeting hope has been dashed by Blue and White joining the government, and there is no escaping the fact that its leaders are now complicit in destroying one of the foundations of any democracy: The justice system.

Beyond the current political crisis, this is a wakeup call for all those who hold democratic values dear. The mire into which the country is sinking is not just a historical accident, nor the fault of one person or even a group. It is closely correlated with more than 50 years of occupying, blockading and depriving another people of their basic human rights; with the discrimination against minorities within Israel from day one of its formation; and with the country’s failure to enshrine democratic values and principles in a written constitution. Those are the main sources of the erosion of democratic norms from which the current crisis derives.