The government vs. the rule of law

Israeli Prime Minister Benjamin Netanyahu and his cabinet ministers are currently attempting to advance three key initiatives as part of this government’s judicial overhaul: the dismissal of the head of the Shin Bet internal security agency; the dismissal of the attorney general; and the restructuring of the Judicial Selection Committee. What these three moves have
in common is that they undermine the foundation of the rule of law in Israel.

In all of these cases, the government is trying to push forward the notion that the role of the head of the Shin Bet, the attorney general and judges is merely to faithfully represent the position of the politician, who alone will decide what the law requires. This view undermines the very essence of democracy. In a democracy, it is indeed essential that the government (which, in Israel, holds office by virtue of the confidence of the Knesset) can implement its policies. However, this must be subject to checks and balances designed to ensure adherence to the law, including being subject to judicial review and the principle of the rule of law, which mandates that all branches of the government act in accordance with the law.

Let’s start with the head of the Shin Bet. It is clear that the Shin Bet must implement government policy. However, it is equally clear that the Shin Bet is subject to the law, which explicitly states that it must operate in a non-partisan manner and that it cannot be assigned tasks to serve political or partisan interests. The prime minister denies the head of the Shin Bet’s supreme duty to uphold the law by seeking to remove him on the pretext that he lacks confidence in him. In reality, the prime minister seeks personal loyalty to himself rather than to the law, and he has not found that in the head of the Shin Bet, who has refrained from dragging his feet in investigating allegations of offenses within the prime minister’s office.

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This is even more evident in the case of the attorney general. It is clear that the attorney general should assist the government in implementing its policies, but this must be done within the confines of the law. When the government seeks to dismiss the attorney general for insisting on upholding the law in cases where she believes the government has attempted to deviate from the law, it is rejecting the attorney general’s subordination to the rule of law and demanding that she represent only the government.

This principle applies even more strongly to judges. At the core of the government’s desire to legislate that politicians and their representatives will determine, through political deals, who will be appointed as judges — both Supreme Court justices and judges for lower courts — is the distorted idea that judges should represent the views of politicians. Perhaps one could argue that for the Supreme Court, which rules on constitutional and public matters, it is legitimate to seek a reflection of a variety of different worldviews. But what justification is there for applying political representation to magistrate courts? This legislation undermines the very essence of the judiciary, which is meant to adjudicate based solely on the law, not on political positions that the Knesset was elected to advance. This holds true for the Supreme Court as well as for all other courts.

As if that were not enough, the prime minister is also shirking his obligation to obey a court order if it prohibits him from dismissing the head of the Shin Bet. Contrary to the basic definition of the separation of powers, his view is that the government will decide for itself the limits of its authority, even when there is a claim that it has overstepped them.

What underlies all these issues is the principle that all public officials must be subordinate, first and foremost, to the law, not to politicians. More than 2,000 years ago, the Greek philosopher Aristotle articulated this idea when discussing the essence of democracy. In “Politics,” Book IV, Aristotle distinguished between a democracy in which all citizens share power but the law rules, and a democracy in which the people, rather than the law, have authority. In the latter type of democracy, Aristotle argued, popular leaders rise to power and govern through decrees rather than through law. As Aristotle explained, one could argue that such a system is not truly a democratic regime at all, since where there is no rule of law, there is no regime because in every regime, the law must rule.

This is the ultimate question facing Israel today: Will Israel remain a democratic regime where the law rules, or will it become a populist-authoritarian regime where the prime minister stands above the law? PJC

Guy Lurie is a researcher at the Israel Democracy Institute. This article first appeared on The Times of Israel.