“The extent to which Israel is ruled by unelected officials is difficult to convey to outsiders. It sounds too fantastic”

Photo: Flash90

Memories of the months of anti-government demonstrations preceding Hamas’s Simchas Torah massacre are still fresh in mind. There can be little doubt that those protests, in particular the repeated threats by reservists and pilots not to serve if the government’s judicial reforms proceeded, encouraged Hamas to attack when it did, for they broadcast a picture of a demoralized Israeli population deeply divided against itself.

A number of hostages released from Gaza have reported that during their captivity, whenever there were demonstrations against the government for its failure “to bring back” the hostages (as if it were Prime Minister Netanyahu and not Hamas holding the hostages and opposing their return), Hamas hardened its negotiating positions.

Already 40,000 people are reported (crowd estimates being highly subjective) to have marched in Tel Aviv last Wednesday to protest the cabinet decision to fire Ronen Bar as head of the Shin Bet (Shabak), Israel’s counter-terrorism service.

At another mass demonstration on Motzaei Shabbos, opposition leader Yair Lapid threatened to call for a general strike and a tax revolt if the government defies a High Court ruling against Bar’s firing. And Yair Golan, former deputy chief of staff and head of the new Democrats party, called for the overthrow of the government if it did not obey the High Court.

At the same time, there have been smaller demonstrations on behalf of the hostages since the IDF’s renewed bombing of Hamas in Gaza and the elimination of numerous senior Hamas officials. The latter groups charged the government with abandoning the remaining 60 or so hostages, of whom less than half are believed to still be alive, and signing their death warrant by ending the ceasefire with Hamas.

In fact, the primary purpose of the renewed pressure on Hamas, including the threat of a major ground operation, was precisely to bring Hamas back to the bargaining table over the hostages, after it rejected all proposals for further releases put forth by US envoy Steven Witkoff. In the meantime, Hamas used the weeks-long pause after the last hostage releases to both solidify its administrative hold on Gaza and strengthen its fighting capacities.

From now on, Netanyahu announced, negotiations over hostages will be “conducted under fire.” At the same time, Israel has paused all humanitarian deliveries and the provision of electricity to Gaza, as long as Hamas refuses to return Israeli hostages. Hamas has demonstrated over nearly two decades of rule that it has no concern for the civilian population of Gaza. But it does seek to retain the territory under its control. Thus, Defense Minister Yisrael Katz warned at the end of last week, “If the hostages are not released, Israel will continue to take more and more territory of the Strip for permanent control.”

THE DEMONSTRATIONS thus far, however, will likely pale in comparison to those that may resume as Justice Minister Yariv Levin and the government move forward with plans to fire Attorney General Gali Baharav-Miara. Former High Court president Aharon Barak warned last week, “The government’s actions, including efforts to fire the Shin Bet chief and the attorney-general, are pushing the country to civil war.” He should know, as he did more to set the stage for such a civil war than any other Israeli citizen.

The attempt to fire the head of the Shabak and the attorney general are intertwined — in the sense that they form a response, at least in part, to a campaign waged with great success since Menachem Begin’s shock election as prime minister in 1977 by Israel’s old Ashkenazi elites to retain their hold on Israel’s major institutions — chief among them the government legal system, consisting of the state attorney’s office, the police, the attorney general (or more properly the “government legal advisor”), and at its head, the High Court. As Aharon Barak put it in his warning, “We must prevent the tyranny of the majority.” And creating a juristocracy is the means of doing so.

As Hebrew University political scientist Dr.Gadi Taub writes in the February 25 Jewish News Service (“A deep state doesn’t get any deeper than this”), “The extent to which Israel is ruled by unelected officials is difficult to convey to outsiders. It sounds too fantastic. So fantastic, in fact, that it may best be described as ‘legal surrealism.’ ”

Donald Trump was hamstrung for nearly three years of his first term by charges of “Russian collusion,” cooked up by the Clinton campaign and pushed by the FBI even after Trump was already in office. And thus far, federal district court judges issuing nationwide injunctions at a dizzying rate have put a large spoke in the wheels of the policy agenda for his second term. But eventually those injunctions will be subject of review by circuit courts of appeal and ultimately the Supreme Court. And the debate will rest on the interpretation of congressionally enacted statutes.

In Israel, by contrast, the High Court is often the court of first and last resort, and its decisions with respect to the “legality” of government actions more often than not depend on the Court’s judgment as to whether those actions are “reasonable” or not, rather than on the interpretation of any traditional legal materials.

And since, as Taub puts it, the political leanings of the median judge on the Israeli High Court would place him or her in the Meretz camp, a left-wing party that did not even cross the electoral threshold in the last elections, “reasonableness” in the eyes of those judges varies greatly from that of general Israeli public.

Indeed, Aharon Barak, former president of the High Court and the father of Israel’s constitutional revolution, described the ideal judge as one who derives his views from “the enlightened society in whose midst he dwells” — i.e., that segment of the population “whose values are universal” and which is “enlightened and progressive.” In short, an elite.

Nor is the political balance of the Court likely to shift over time, as the current method of judicial selection by a nine-member committee, including three sitting justices of the Court, an opposition member of the Knesset and a representative of the bar, gives the three sitting justices virtual veto power over the choice of their new colleagues. Barak defended this anomalous system, without parallel in the democratic world, as necessary to preserve “collegiality,” by which he meant adherence to his views. He fought tooth and nail — and successfully — to keep off the Court any legal scholar, such as the late Ruth Gavison, whose judicial philosophy differed from his own.

Barak, in his time, did away with all traditional legal rules of justiciability and standing so that anyone opposed to any government action could gain a hearing on his claim in before the High Court sitting as the Beit Mishpat Govoha L’Tzedek (BaGaTz). The one party that might not be able to have its position heard is the government itself.

Without any statutory warrant, the Barak Court invested the attorney general with final authority over all government decisions. (Barak himself was attorney general prior to his elevation to the Court.) If the attorney general refuses to defend the government’s position in the High Court, the government is left unrepresented. (More recently, the government has been allowed to petition the attorney general for permission to retain outside counsel.)

That is what happened, for instance, when the then attorney general informed the late Prime Minister Yitzchak Rabin that he would not defend the government’s position against a petition to remove Aryeh Deri as interior minister after Deri was indicted for fraud, even though the governing statute made clear that a government minister need resign only after conviction, not indictment, for a crime involving moral turpitude. Rabin had no choice but to jettison Deri.

The Hebrew title of the attorney general translates as “legal advisor to the government,” which sounds like something more akin to the Office of White House Legal Counsel than the position of attorney general as it has developed in Israel. The task of legal counsel is to advise the government on how to best carry forth its policy goals within the limits of the applicable law. Only in the rarest of cases would the legal counsel tell the president that what he wants to do is legally impossible. And even then, his job would be to find legal alternatives to achieve the same policy goals.

But Israel’s current attorney general does not see herself as a member of the government, but as its boss. The attorney general is appointed for specific number of years, and it does not matter how many times the government may change (as can happen in a parliamentary democracy such as Israel) in the course of that term. So he or she is not even presumptively aligned with the policies of the government.

The irony that the government has less right to be heard than any private citizen is a feature, not a bug, of the system Aharon Barak created, for that system is predicated on the assumption that it is the democratically elected branches of government that are the enemy and must be restrained by its more enlightened betters.

And the attorney general plays a lead role in enforcing that restraint. She is in effect the tip of the spear of the Court. Not without reason has Justice Minister Yariv Levin referred to Gali Baharav-Miara as “the long arm of the opposition,” always there to gum up the works for the government.

However one wants to characterize her role, there can be little doubt that the attorney general in Israel is the most powerful such legal figure in the democratic world, and in the words of Dr. Yaakov Ben-Shemesh, a lecturer in constitutional law and a former clerk for Court President Aharon Barak, arguably the most powerful public figure of any kind.

No government could long live with an attorney general who has been invested with vast power in order to keep the government on a short leash. And it appears those inherent tensions in the Israeli system of government may well reach the boiling point over the government’s decision to fire Shabak chief Ronen Bar, with far reaching consequences for the entirety of Israeli society.

Stay tuned until next week.

(Originally featured in Mishpacha, Issue 1055. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)