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 be best described as “legal surrealism.”
Our rulers sound like they speak the language of politics and law, but much of what they say makes no sense at all. Consider the case of Benjamin Netanyahu’s testimony in his own trial.
Though Israel is in a state of war on several fronts, the judges presiding in that trial are forcing him to testify three days a week, every week, because, they have argued, it is “in the public interest” to bring the trial to a speedy conclusion. So, determining the exact number of cigars that Mr. Netanyahu received as gifts from friends has come to take precedence over his running of the war.
The judges know, of course, that they will pay no price for their risible definition of “the public interest,” which the public itself would undoubtedly have rejected. Because Israel’s deep state has achieved the dream of bureaucrats since the dawn of bureaucracy: the complete divorce of authority from accountability. The judges know that if their lopsided priorities hinder the war effort, it will be the prime minister, not those who coerced him, who will pay the political price.
At this late stage in the game, one may speculate that this is exactly the point of their whole exercise. Because the Netanyahu trial is not a real criminal procedure. It is a means for doing what elections could not: removing him from power. It is an arena of the struggle for supremacy between democracy on the one hand and the administrative state on the other.
The exacting schedule that the judges have imposed on the prime minister is less a reflection of any tangible public interest, and more part of a trap that our clever jurists have laid down for Netanyahu. You see, they have invented something they call “essential incapacitation.”
Contrary to the explicit meaning of incapacitation clauses in the laws of Western democracies, including those in the United States and Israel, this helpful little judicial gadget extends the idea of medical incapacitation to the realm of scheduling conflicts. According to this new abracadabra, if Netanyahu argues appearing in court three days a week impairs his ability to run the war, then the attorney general can declare him “essentially incapacitated” from preforming his duties, and thus overrule the results of a legal election.
