Prosecutions in Israel have also been infected by this systemic bias, not uncommonly under the influence of the predilections of the judiciary with whom prosecutors must deal, as well as by the impact of prosecutors’ own aspirations to ultimately achieving a place within the judiciary.
Innumerable examples of prosecutorial bias can be cited. One that received much publicity at the time was the aggressive prosecutorial pursuit of Benjamin Netanyahu, after his first term as prime minister, for allegedly having engaged in illegal activities connected to contracting work done at his private residence while he was in office and also his allegedly having kept gifts received while in office that properly belonged to the state. In contrast, pursuit of then-President of Israel Ezer Weizman for allegedly having been given large payoffs to advance left-wing political goals – the amounts involved were considerably greater than those entailed in the allegations against Netanyahu – was much less vigorous.
The blatant political use of prosecutorial actions prompted Harvard law professor Alan Dershowitz, hardly a right-wing zealot, to address the matter in a letter to Haaretz back in August, 2000. Dershowitz noted “Israel’s long history of prosecuting, often unsuccessfully, some prominent public officials, while foregoing prosecution of others.” He went on: “Even those who want to see Benjamin Netanyahu prosecuted appear to acknowledge that if the same test that was applied to Ezer Weizman were to be applied to Netanyahu, there would be no prosecution.”
And he warned: “It would be discriminatory in the extreme to apply a less demanding evidentiary and prosecutorial standard for Netanyahu than has been applied to other political figures in the past.… Any less demanding standards would reasonably raise the specter of political partisanship and discrimination.”
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Again, there have been innumerable instances of such partisanship and discrimination, with prosecutors pursuing in prejudicial ways those on the political Right.
Thus, for example, in advance of the dismantling of the Jewish communities/settlements in Gaza, as well as four in the West Bank, in the summer of 2005, an entirely new and extraordinary body of prosecutorial procedures was created to deal with anti-evacuation demonstrators and resistors.
Among the novel guidelines was an order that cases brought against those accused of threatening a civil servant in the course of the expulsions “cannot be closed by the investigating unit because of lack of evidence or lack of public interest, but only with permission from the state prosecutor.”
In an April 2007 hearing for a senior reserve officer who had tried to resist his expulsion from Kfar Yam in Gaza, Judge Drora Beit-Or, deputy president of the Beersheba Magistrates Court, acknowledged, “We dealt differently with the cases from the Disengagement.… We [in Beersheba] dealt with many cases including minors and threats. Most of the defendants were first time offenders and all [cases] received special treatment.” This included the months-long imprisonment of young teenagers who had committed no crime and had no previous criminal record.
The perennial bias of the Israeli judiciary, and particularly the Supreme Court, has had an impact on public opinion. In a poll conducted by the Maagar Mohot Survey Institute and published November 11, 2011, only 14 percent of respondents believed the Supreme Court represented all elements of the nation while 51 percent believed it did not. By 54 percent to 46 percent, those polled viewed the court as politically slanted. Of the 54 percent who declared the court politically biased, by 75 percent to 11 percent they saw it as slanted in favor of the Left.
The vigorous opposition of the Israeli Left to reforms of the judicial selection process that would bring it more in line with democratic norms calls to mind a television interview conducted in June 1977 with Itzhak Ben Aharon, a former Labor member of the Knesset and head of the Histradrut Labor Federation. The occasion was the election of the first non-leftist government in Israel’s history. Ben Aharon declared: “The [election] results are a mistake.” The interviewer responded: “But Mr. Ben Aharon, this is a democracy and the people have spoken.” To which Ban Aharon retorted, “The people are wrong.”
No element of Israeli national governance is more in need of constitutional controls than the judicial system. Short of introduction of a constitution with a system of checks and balances, the corrective of legislating Knesset vetting of candidates for the judiciary is the least the public should demand if the nation’s judiciary is to move toward conforming to standards of judicial power and judicial constraint characteristic of functioning democracies.
Kenneth Levin is a psychiatrist and historian and author of “The Oslo Syndrome: Delusions of a People under Siege” (Smith and Kraus Global, 2005; paperback 2006).
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