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Legal bullying in the service of the prime minister

The Knesset is fast-tracking legislation to hobble and hide corruption investigations against Netanyahu. The bill would further erode Israeli democracy, training citizens to accept that they do not have the right to know the facts about their leaders.

Israeli Prime Minister Benjamin Netanyahu and Israeli Chief of Police Roni Alshiech at an inauguration ceremony marking the opening of a new police station in the northern Arab Israeli town of Jisr az-Zarqa, November 21, 2017. (Basel Awidat/Flash90)

Israeli Prime Minister Benjamin Netanyahu and Israeli Chief of Police Roni Alshiech at an inauguration ceremony marking the opening of a new police station in the northern Arab Israeli town of Jisr az-Zarqa, November 21, 2017. (Basel Awidat/Flash90)

The Knesset raced toward adopting a law this week intended to constrain Israeli police from making recommendations about indictments based on its investigations, and to keep the findings of those investigations from the public. The law would apply retroactively to the current investigations involving the Prime Minister.

The bill represents another blow to democratic practice in Israel, along with laws in recent years that target Arabs, left-wing political expression, and civil society. Yet in some ways, the anodyne-sounding “Recommendations Law,” represents a new low for democracy in Israel.

It sponsors have “fast-tracked” the process; the bill won a critical first vote in the Knesset plenary on Monday with 46 in favor and 37 opposed; if it wins a second and third reading, the law could go into effect within two weeks.

The first version of the bill prevented the police from providing any summary of evidence, which is the basis for the attorney general to recommend indictment, imposing criminal liability on those who publish or leak such a summary. The restrictions apply specifically to investigations that are being “overseen by a prosecutor” – notably, those currently involving Benjamin Netanyahu.

These aspects elicited severe criticism of a “personal” bill; Yair Lapid called it “the Netanyahu law,” while Haaretz has referred to it as the “police-silencing law” in news stories. Following an outcry by opposition figures and civil society organizations, an updated version allows the attorney general to request “consultations” with the police regarding investigations already underway – once again, Netanyahu’s files – in which the police can presumably provide summaries of the evidence. But it still prohibits “unlawful” leaks (by police, investigators or prosecutors) on pain of jail time.

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Amir Fuchs of the Israel Democracy Institute (IDI) noted in an email to +972 Magazine that the attorney general might still be allowed to publish investigation summaries at his discretion in the version that passed Monday’s vote.

But the intention is clear: the public shouldn’t know. In fact the bill’s authors openly call for keeping the evidence secret, arguing that many cases do not reach indictment and publishing the findings tarnishes the suspects’ reputations unnecessarily.

The notion of protecting citizens has been roundly dismissed. An opinion by the Israel Democracy Institute (prior to the modified text of Monday’s vote), co-authored by Fuchs, stated that the bill “prevents writing recommendations or summarizing the basis of evidence only in cases where there is a prosecutor overseeing the case…[which] demonstrates that this law is intended for a very few instances, and does not address a genuine matter of principle.” The authors concluded: “It is crudely tailored to provide professional cover for nothing other than the pernicious use of legislative power of the Knesset to benefit the Prime Minister.”

MK David Bitan and MK David Amsalem attend a Knesset committee meeting, Jerusalem, September 21, 2016. (Yonatan Sindel/Flash90)

MK David Bitan and MK David Amsalem attend a Knesset committee meeting, Jerusalem, September 21, 2016. (Yonatan Sindel/Flash90)

The legislative procedure over the last week has been at least as alarming as the spirit of the law. The bill was authored by a pair of Likud cronies: David Bitan, the chair of the coalition, who last year threatened that he would seek to strip the citizenship of human rights leader and head of the anti-occupation organization B’Tselem Haggai Elad, and Likud MK David Amsalem,who heads the Knesset committee debating the bill. When longtime Likud MK Benny Begin refused to support the earlier version last week, Amsalem and Bitan booted him from the committee.

The state prosecutor and the attorney general have both criticized the bill in its various forms. In addition to Israel Democracy Institute’s opinion, the Movement for Quality Government has filed a petition to the High Court against it. Even Justice Minister Ayelet Shaked said in a televised event that she “doesn’t love the law,” though her party, Jewish Home, supported it.

For many the biggest shock was Finance Minister Moshe Kahlon’s backing this week, after he insisted on the amendment allowing the attorney general to continue consultations with police over Netanyahu’s investigations. Kahlon faced internal party strife: Rachel Azaria of his Kulanu party was the only coalition member to oppose a preliminary vote earlier this month. But Ynet and other outlets reported that Likud members sent the finance minister a blunt message: support the bill or we call for elections.

Moshe Kahlon (Photo by Activestills.org)

Moshe Kahlon (Photo by Activestills.org)

This is bullying — lawmaking as theater in the service of the Prime Minister. Many legislators apparently do not feel the need to participate at all: just 83 out of 120 even voted. I find this particularly worrying; legislators not voting, while not entirely new in Israel, reflects a deeper illness in the system.

What about the consequences if the law actually passes? One Times of Israel analysis argues that this will not significantly affect the probes against Netanyahu, since the police will still be allowed to summarize evidence to the attorney general in those cases. But the authors of the bill hope the public will never have access to that evidence. It seems impossible for authorities to ignore the fact that if they decline to recommend indictment, any public outcry or even oversight has already been hobbled.

But the long-term implications are worse. Like Israeli laws designed to deter criticism or dissent, such as the NGO law or the anti-boycott law, this one would slowly train citizens to accept that they do not have the right to know the facts about their leaders at all. It’s a small step from there to becoming passive subjects rather than active citizens, and another large step away from democratic norms.

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    1. I usually don’t make internal comments for various reasons, but here I will note that in the US investigations not yielding indictment are sealed from the pubic, save for those cases where an arrest has been made, property confiscated, or some court order produced (some of which, such as wiretaps, themselves may be sealed). An investigation may begin with some pubic event, such as third party charge of some violation, but that is distinct from State release of information. Pre-indictment information is sealed for the simple reason that such release can act as a social punishment without true opportunity of defense. Of course, an arrest as such, prior to indictment, must be public to satisfy due process. Even in high politics there are cases of House members arrested out of the blue, with no prior indication that something was afoot. None of this applies to the President because impeachment is overtly political and a President is otherwise immunized from prosecution; yet even here releases have to be within the political process–leaking information say from FBI files would be a criminal offense, while a House member announcing that information would likely not be.

      What’s happened in Israel, as far as I can tell, is that prosecution itself has become politicized (as is always somewhat the case in high profile) to such an extent that the integrity of prosecution is doubtful; the sense of an independent prosecution, Attorney General, is fading. We see this as well in the US during Watergate, which is why a Congressional investigator was created back then, with soon a special prosecutor beyond Attorney General supervision, present Mueller a descendent. But no matter what Mueller finds, he himself cannot bring down the President.

      Lastly, I again see tension in what “democracy” is supposed to mean. For the national right the goal seems to be equating the word with Knesset Supremacy and elections thereto, yet the latter under full Supremacy would be a matter of political indulgence. Dahlia would include the rule of law in the words core meaning, but under full Supremacy the rule of law is naught but an indulgence of political will by the ruling coalition–so the first version of the present bill. I am of the opinion that there is no firm support for the rule of law in Israel save for an electorate fractured into multiple non majority parties; the rule of law becomes whatever one needs to form a coalition government. Without written text, even if only a flimsy “Basic Law” which the Knesset may overturn overtly or as applied, the High Court can do little against Supremacy; or, rather, for some time every time it had the opportunity to do something it ultimate has backed away from constitutional crisis. The rule of law cannot survive by popularity contest; there will always be high profile cases where a majority of the polled will want the rule of law suspended or circumvented. Democracy as legislature is not a Constitutional Republic, and only the latter has any hope of long term sustenance of the rule of law. Simply, the rule of law is not about The People, but rather contours what The People can become.

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