The Irony Of Israel

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The New York Sun

It’s ironic, when you think of it. For decades, one heard dire predictions of how Israel, faced with maintaining a military occupation of the Palestinians while at the same time having to deal with serious domestic frictions and discontents, would inevitably go the way of authoritarianism and become a country ruled by a centralized military-political cabal in which democratic norms and procedures would be eroded.

And what has actually happened? Although the military occupation continues, as do the serious domestic frictions and discontents, Israel has become a country in which democratic norms and procedures have, as it were, run wild. With its welter of competing institutions clamoring for primacy, the country has never been less subject to strong, centralized rule in its history. Public life has become a free-for-all in which various bodies — the prime minister, the ministries, local government, the Knesset, the courts, the army, the police, the trade unions, official investigators and commissions of inquiry — all attack and seek to defend themselves from each other as if each were a warring principality rather than part of the same unified state.

In this week’s latest episode, Prime Minister Olmert has accused the state comptroller, Micha Lindenstrauss, of lying and behaving illegally in his investigation of the government’s functioning in last summer’s war in Lebanon — an investigation that Mr. Lindenstrauss launched on his own, even though an independent commission of inquiry, the Winograd Commission, with which the comptroller is in effect competing, had been created for the same purpose. Mr. Lindenstrauss, in turn, has accused Mr. Olmert of refusing to cooperate with his investigation or to answer the questions it put to him.

Meanwhile, Major General Yitzhak Gershon, the commander of the army’s Home Front Corps, is threatening to go to court to stop Mr. Lindenstrauss from publishing his report, which is said to find fault with General Gershon’s wartime functioning. And at the same time, the chairman of the Knesset’s State Control Committee, who also is chairman of the National Religious Party, Zevulun Orlev, announced that he would defy the demand of the Knesset’s legal adviser, Nurit Elstein, to postpone a hearing at which Mr. Lindenstrauss’ report is to be presented to his committee.

Anywhere else in the democratic world, this kind of thing would be unheard of. In Israel it has become a matter of course. What is happening?

It would be easy to blame the government of Ehud Olmert, which is indeed probably the weakest that Israel has ever had. But there are also long-term trends at work that have nothing to do with Mr. Olmert’s government and that were already in existence long before it. At bottom, nearly all of them can be traced back to Israel’s electoral system, which has produced an enfeebled legislature, which in turn has led to a frequently handcuffed chief executive, both which have resulted in a hypertrophied judiciary and to the constant recourse to legal rather than political channels on the part of institutions and individuals.

The main problem with Israel’s electoral system, which has remained in place since 1948 despite one or two attempts to tinker with it, is that its voters do not directly elect candidates for the Knesset, the nation’s parliament, but rather vote for nationwide lists assembled by parties that are represented in the Knesset according to the percentage of votes they receive. Since there are no electoral districts with winner-take-all contests, the Knesset’s members are dependent for election and re-election not on voters but on cronyism and on the parties that pick them. Since there can be a dozen or more such parties in the Knesset, none ever has a majority there. And since it is the Knesset that chooses the prime minister, the latter must govern by means of a coalition, often precarious, consisting of a number of parties other than his own, each with its own ideology and constituency.

This results both in a weak Knesset, whose members have no real independence, and in a potentially weak prime minister – and into this vacuum, in recent years, Israel’s courts and extraparliamentary investigative bodies, particularly the High Court of Justice, have plunged, arrogating to themselves powers and responsibilities along an astonishingly broad front.

To give a few examples, Israel’s supreme court has agreed to hear cases and hand down rulings on such things as whether legally or morally tainted politicians are appointable to office, the route to be followed by Israel’s West Bank security fence, and the permissibility of collateral damage to innocent Palestinians in the targeted assassination of terrorists — all subjects that no judicial system anywhere else would even consider. Having originally done so because the legislative and executive branches shirked their duties, the high court has by now taken on the role of supreme-authority-on-everything to which everyone appeals. And by the same token, since the Knesset has failed in its function of monitoring the government’s activities, extraparliamentary commissions of inquiry are established all the time to take the Knesset’s place.

This “over-judicialization” of Israeli political life has had increasingly negative consequences, to the point indeed, that the new minister of justice, Tel Aviv law professor Daniel Friedman, has taken office with the pledge to curb the country’s judiciary — itself an unprecedented act for someone whose job it ostensibly is to represent the judicial branch and its interests.

But curbing Israel’s runaway judiciary is only half the job — if even that. It will accomplish nothing, and may even do more harm than good, unless it is accompanied by the kind of electoral reform that will strengthen the Knesset, and ultimately, the prime minister’s office. And whether Israel’s political leaders have either the desire or the ability to change an electoral system to which they owe their own standing is something that comes with a very big question mark.

Mr. Halkin is a contributing editor of The New York Sun.


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