Column one: Israel’s democratic crisis

The power to appoint is the power to govern. Without the power to appoint public servants, governments cannot develop patronage networks.

Gal Hirsch, Former IDF Brig.-Gen. Gal Hirsch is seen leaving the Prime Minister’s Office on Tuesday..

By Caroline Glick, JPOST

On Wednesday night Prime Minister Binyamin Netanyahu touched on the most critical threat to Israeli democracy. Following Public Security Minister Gilad Erdan’s announcement that he was canceling Brig.-Gen. (res.) Gal Hirsch’s appointment as inspector-general of the police due to Attorney-General Yehuda Weinstein’s refusal to approve it in a timely manner, Netanyahu said, “Our appointments process is harsh, prolonged, harmful, and without a doubt worthy of review.”

The power to appoint is the power to govern.

Without the power to appoint public servants, governments cannot develop patronage networks.

Although patronage has developed a bad reputation, all it really amounts to is the ability to ensure that officials appointed by a government are loyal to the government and as a result can be depended on to faithfully execute the policies of the government.

When appointments are controlled by unelected forces, elected officials cannot trust that public servants will implement their policies. Indeed, it is almost a given that they won’t.

In recent weeks various unelected forces have conspired to scuttle two senior governmental appointments.

In the first case, retired far-left Foreign Ministry officials sabotaged the government’s appointment of Dani Dayan to serve as ambassador to Brazil.

Alon Liel, a former director-general of the Foreign Ministry, and former ambassadors Ilan Baruch and Eli Bar Navi met with the Brazilian ambassadors to Israel and the Palestinian Authority and petitioned the Brazilian government to reject Dayan’s appointment.

Like the government that appointed him, Dayan does not support these former officials’ goal of surrendering full control over eastern, southern and northern Jerusalem, and Judea and Samaria. His position made him a target for Liel and his colleagues.

In an interview with Army Radio on Monday, Liel bragged that he’s been working for years to undermine the government’s ability to determine Israel’s foreign policy. Liel explained that as he and his friends see things, since the public doesn’t agree with them, Israeli democracy is illegitimate, and it is therefore legitimate for them to subvert it.

In his words, “I don’t expect my camp to control the government. If I thought my camp could win an election I would work within the Israeli system. My ideology won’t be able to win an election for the foreseeable future.”

So far their initiative has been a raving success.

Brazilian President Dilma Rousseff informed Netanyahu that she opposes Dayan’s appointment. If Netanyahu and the government insist on sending him to Brazil, they risk harming Israel’s bilateral relations with that key South American country.

And if Dayan is sent to Brazil now, he will likely be treated as persona non grata from the moment he lands in Brasilia.

For all their destructive power, Liel and his associates are small potatoes when compared to the legal fraternity.

With Hirsch’s scalp hanging from his wall, Attorney- General Yehuda Weinstein can take pride in the fact that he has blocked the government’s appointments to Israel’s two most powerful national security posts. In 2011 he forced the government to cancel Maj.-Gen. Yoav Galant’s appointment to serve as IDF chief of General Staff.

Back then, Weinstein forced the government to cancel Galant’s appointment by refusing to defend it before the High Court of Justice when it was challenged by an environmental group. At the time, Weinstein acknowledged that there was no legal basis for his position, but he held it all the same, due to his (legally irrelevant) “ethical” concerns.

By forcing the government to abandon Galant – and now Hirsch – Weinstein has done more than simply undermine government authority.

He has sent the clear message to Israel’s security brass that they needn’t be beholden to the lawful orders they receive from the government. His is the only opinion that matters. He is their lord and master.

Not only is this a perversion of democratic norms, it is corrupt.

Currently, the government is seeking a replacement for Weinstein, who is due to retire at the end of the year. The process of searching for a new attorney-general itself shows the pathological nature of the system.

First there is the issue of the senior appointments’ committee.

Eighteen years ago, under an avalanche of condemnation from the media for appointing an ally to serve as attorney-general, Netanyahu, then in his first tenure as prime minister, agreed to empower a committee chaired by a retired Supreme Court justice to approve senior civil service appointments.

Ever since, the committee, now chaired by retired justice Jacob Turkel, has arrogated more and more power to dictate appointments to the government. As a result today, the government won’t even bother submitting the names of jurists who publicly oppose the legal fraternity’s seizure of government power. There’s no point.

Turkel and his colleagues can be expected to find an excuse to reject any such candidate. And they have no compunctions about forcing their will down the throats of Israel’s elected leaders.

In 2010, then-speaker of the Knesset Ruby Rivlin said that he wasn’t interested in hiring any of the three candidates for the position of Knesset legal adviser that the Turkel Commission approved.

Turkel shrugged his shoulders.

Rivlin was forced to accept a legal adviser he didn’t want.

As for Weinstein’s successor, it is an open secret that Netanyahu wishes to appoint cabinet secretary and former IDF military advocate-general Maj.-Gen. (res.) Avi Mandelblit to the post. It is also an open secret that Weinstein opposes his appointment.

As a result, the same attorney-general who bent every rule in the book to scuttle the criminal investigation – and later blocked the indictment – of former IDF chief of general staff Lt.-Gen. (res.) Gabi Ashkenazi over allegations regarding felonious abuses of power, bent every in the book to open a criminal investigation against Mandleblit for his handling, as the IDF’s chief lawyer, of Ashkenazi’s alleged misconduct.

Mandleblit played a bit role in the Ashkenazi saga. One of Ashkenazi’s loyalists, Lt.-Col. (res.) Boaz Harpaz, forged a document which he leaked to the media with the intent of destroying Galant’s reputation. After the document was leaked to Channel 2, Ashkenazi gave Mandleblit a copy of the forged document. Mandleblit waited a few days before handing a copy of the document to the police and to Weinstein.

It can be argued that Mandleblit betrayed the principle of attorney-client privilege by sharing the document with investigative authorities. After all, he was Ashkenazi’s attorney.

But that was not the basis of Weinstein’s investigation.

Based on no clear statute, Weinstein argued that Mandleblit may have acted in a criminal manner by waiting a few days to give Weinstein the document which he may have been barred from sharing in the first place.

In the end, after months of stringing Mandleblit (and Netanyahu) along, Weinstein finally closed his investigation. But by acting as he did, Weinstein paved the way for a foreign-financed NGO to petition the High Court to reject Mandleblit’s appointment if and when the government appoints him. Moreover, he cleared a path for himself to refuse to defend the appointment on “ethical” grounds, just as he did in the case of Galant’s appointment.

Weinstein’s serial torpedoing of the government’s appointments is part and parcel of a larger agenda that involves preventing the government from determining national policy. Just as he acts without legal foundation to prevent the government from appointing senior officials, so he acts to prevent the government from adopting policies that he doesn’t like.

Take the government’s recent attempts to dictate minimum prison terms for rock-throwers.

Over the past few weeks, Weinstein has repeatedly blocked the government from implementing sentencing guidelines.

Now it is possible to oppose with the government’s position on policy grounds. But there is nothing illegal about its proposed course of action. Many governments enact sentencing guidelines for a variety of crimes. And there is no binding international statute barring the government from dictating minimum sentences for rock-throwers.

But Weinstein opposes them. So the government is unable to deal with a security issue that endangers public security and imperils Israel’s sovereignty over its capital city. True, it can ignore Weinstein.

But Weinstein’s opposition has paved the way for an EU-financed NGO to petition the High Court. And since he opposes the policy, he will refuse to defend it.

The legal fraternity’s tyrannical behavior has engendered a deeply destructive organizational culture at the Justice Ministry. Why work hard to defend the country when your career advancement is dictated solely by your willingness to toe the company line? Consider for example the ministry’s non-response to the EU’s rapidly escalating economic war against Israel.

This week two esteemed international law experts published a position paper for the Kohelet Policy Forum setting out Israel’s options for handling the EU’s policy of sanctioning Israeli products and entities beyond the 1949 armistice lines. Profs. Avi Bell and Eugene Kontorovich explained that the EU’s policy constitutes a material breach of the World Trade Organization’s treaties.

Israel has the right to open legal proceedings against the EU before the WTO tribunal to force it to abandon its unlawful trade boycott of Israeli products and entities.

Bell and Kontorovich argue that unlike the World Court and other politicized international bodies that are inherently anti-Israel, the WTO’s judicial body is comprised of technical experts who tend to rule on the merits of cases. As a result, Israel has a good chance of prevailing before this body.

Bell and Kontorovich’s position is not new.

They first recommended turning to the WTO two years ago. Ever since, the EU has escalated its unlawful economic war against Israel and the Justice Ministry has taken no action to defend the county.

And this makes sense. Justice Ministry lawyers have nothing to gain by doing so. This is true first of all because international trade is an area in which Justice Ministry lawyers have no expertise.

To handle the issue they would need to hire an outside expert. Hiring an outside expert means admitting that the legal fraternity isn’t all-knowing. And that just can’t be done.

Moreover, no one wins points at the Justice Ministry by noticing that Israel has every legal right to operate economically, militarily and politically beyond the 1949 armistice lines. Who would be dumb enough to risk his career by sticking his neck out? Indeed, if Bell and Kontorovich hadn’t spoken up, we’d never know that we have a way of defeating the European boycott movement. And even now, we have no reason to believe the government will be able to act on their recommendation.

Who will implement it? Weinstein? Israel faces a daunting threat environment. The good news is that we have the tools to handle the threats we face. The bad news is that so long as unelected officials in and out of government are able to subvert governing authority, these tools will never be used.