Building A Jewish Democracy

Israel Liberty Monitor

Volume III Issue 2 - 3 Sivan 5768 / June 6,2008

COMMENTARY: THE UNTOUCHABLES

Haim Ramon: Harasser or harassed?

In testimony yesterday before a special Knesset committee, established to investigate the conduct of the law enforcement establishment in prosecuting former Justice Minister Haim Ramon, the current minister, Daniel Friedmann, complained that the police and the Attorney General were doing everything in their power to protect police officials and prosecutors who violated Ramon’s due-process rights. Freidmann called for the establishment of an official Commission of Inquiry. Unlike a Knesset committee, an official Commission of Inquiry can issue subpoenas, force civil servants to testify, and prescribe sanctions for offenders. As things stand now, the people who violated Ramon’s rights are untouchable.

When Kadima came to power in 2006, Olmert made Haim Ramon Justice Minister. Ramon had a brief to reform the ministry, which means especially its most powerful bureaucracy, the State Prosecution. On the eve of the Second Lebanon War Ramon kissed a woman officer stationed in the Prime Minister’s office. He says she led him on; she charged him with sexual harassment. Ramon was convicted — but not of felonious conduct. He’s now a minister again.

The really curious part had to do with the way police, prosecutors and judges handled the Ramon case. A senior police officer with a checkered history, Miri Golan, apparently pressured the young woman into filing charges. Police obtained a warrant to tap Ramon’s cellphone, apparently on false pretexts. A judge issued the warrant without asking the most basic questions as to why the warrant was needed or justified. Then, the prosecution failed to reveal the content of the wiretaps or even the fact of their existence to Ramon’s lawyers, as required by law; doing so would have revealed that the state went fishing for additional incriminating evidence and found none. All these facts were confirmed by an independent inquiry performed by retired judge Vardimon Zeiler. Nothing has been done to those responsible for deliberately or carelessly violating Ramon’s rights.

There is nothing new with Israel’s law enforcement authorities bending the law when they’re out to get a politician they don’t like. When Binyamin Netanyahu was Prime Minister, Attorney General Michael Ben-Yair, a Rabin appointee, filed trumped-up tax-evasion charges against Netanyahu’s Justice Minister, Yaakov Neeman. Later on a senior police officer, Moshe Mizrahi, obtained a warrant to wiretap conversations between Netanyahu and Avigdor Lieberman, then (and since) under investigation for corruption. On the basis of the warrant, Mizrahi recorded hours and hours of purely political conversations between the two. The low-ranking police officer who spilled on Mizrahi, Stanislav Yazhemski, fled to Canada because, he said, he feared Mizrahi’s vengeance. Eventually Mizrahi was forced out, a singular and exceptional development.

In the Knesset yesterday Daniel Friedmann testified in bitter tones that all his efforts to force his ministry to discipline the officials who violated due process in their haste to railroad Ramon into jail have failed. Judge Zeiler seconded Friedmann’s call for a Commission of Inquiry, saying (according to Haaretz’ Hebrew edition. “Everyone involved with [the Ramon investigation] agrees terrible things were done.”

In reaction, Haaretz reports current Chief Police Inspector David Cohen as saying, “So every time an internal investigation reaches a conclusion someone doesn’t like, we’re going to appoint a special Commission of Inquiry?” Cohen referred to the anemic “internal investigation” of the affair by the complaisant Judge Nathan Brener, appointed by Mazuz, who concluded that nothing special needed to be done to any individual.

Inspector Cohen has a point. What’s needed is not a special Commission of Inquiry. The fact is that Israel’s police and prosecutors habitually play fast and loose with the due-process and civil rights of citizens, prominent or nameless. The judges are careless in exercising their authority to oversee, and hence check, violations of citizens’ rights. The entire law enforcement establishment acts like one big happy family, claiming to act beyond reproach, in practice devoid of oversight and out of control.

Nobody in a democracy should exercise authority without oversight. What’s really needed is set up a permanent civil rights authority, independent of the police, the courts and the Justice Ministry, with the statutory right to do everything, on a permanent basis, that a one-off Commission of Inquiry can do: Hold investigations, issue subpoenas, and prescribe sanctions for judges, cops and prosecutors who go off the reservation. The appropriate place to set up such an authority is within the Office of the State Comptroller, which is already responsible for investigating the way the rest of Israel’s government is administered and is not chummy with the cops, courts and prosecutors. The Israel Policy Center is preparing appropriate legislation, to be introduced in the next Knesset and under the next government.

Not So Fast

On May 28, in the wake of Morris Talansky’s preliminary testimony in Jerusalem District Court, the head of Israel’s Labor Party, Ehud Barak, appeared to pull the plug on the 17th Knesset. Barak demanded that Kadima, the biggest party in the Knesset, choose a new leader to replace Ehud Olmert as Prime Minister. Pulling an unpopular Prime Minister out of the government and plugging in a replacement appears, however, impossible to do quickly under Israel’s political system. 

Compromised though he is by suspicions of graft and corruption, Olmert seems certain to continue as Prime Minister for another five months at least. That’s more than enough time for a Prime Minister to initial a peace treaty or two or to authorize a military offensive in Gaza, all with the most exiguous political legitimacy. Compare that with the situation in Britain in 1990, when it took the British Conservative Party about a week to topple the unpopular Margaret Thatcher and install John Major as Prime Minister in her place.

Getting rid of a Prime Minister requires him either to resign or be removed. Neither course leads quickly or easily to a new government:

1. Israel’s system of government grants the Prime Minister special status. In effect, the government belongs to him. According to Par. 19 of Israel’s Basic Law:The Government, the Prime Minister cannot simply resign; if he does so, the government is considered to have resigned with him, and a new government must be formed from scratch. Thus every change of Prime Minister involves new coalition negotiations, which may or may not succeed.
2. If the Prime Minister does not resign, the situation is worse. He has to be pushed out. This can only be done by a vote of no-confidence, in which at least 61 MKs, an absolute majority, vote to ask the President to bestow the task of forming a government on some alternative Prime Minister. This means that coalition agreements must essentially be completed in principle before the change of Prime Minister can even be contemplated. And this runs up against the problem of—
3. Primaries. The law states, reasonably, that the President must consult with the various parties as to whom they are willing to support in place of the outgoing Prime Minister. But Olmert’s party Kadima, the biggest in this Knesset, can have no recommendation till it holds primaries among its 60,000 members. A primaries campaign requires money, organization and time: in Kadima they are taking about holding primaries three months from now. Coalition negotiations can’t even start until the putative head of the next coalition has been chosen. In contrast, the MPs of the British Conservative Party voted on Thatcher’s replacement: Less democratic but also a lot more efficient.

Even if Kadima wanted to take up the gauntlet Ehud Barak threw down, it can’t get its act together and nominate a new candidate for Prime Minister for another three months. During all that time Olmert will be Prime Minister. The law gives Kadima’s replacement candidate 42 days to try and form a government. During all that time, if it’s needed, Olmert will be Prime Minister. And if the candidate can’t manage it, as now seems likely, elections will be held 90 days after that. That brings us to January, and during all that time Olmert will be Prime Minister.

There is an alternate route, which is to pass a bill to dissolve the Knesset and go to elections on an agreed date, which now looks like Tuesday, Nov. 11. Until then, Olmert will be Prime Minister. This actually seems the quickest way to get a replacement Prime Minister under current law.

One wonders if it wouldn’t be better to amend the Basic Law: The Government to empower the Prime Minister’s party, i.e. its Knesset faction, to decide to change its candidate for Prime Minister at will, by secret ballot. The new candidate would still have to build a coalition and receive a vote of confidence from the Knesset, but at least a Prime Minister with envelopes of unmarked bills burning a hole in his pocket would be able to hang around for a matter of weeks, not months. Prime Ministers, of course, wouldn’t like such a change. The prefer making it difficult to replace them.

Primaries and the Next Knesset

Israel’s parliamentary system is based on proportional representation. Parties nominate ranked lists of candidates. Voters get to vote for the list, not individual candidates. The more votes a party gets, the larger its representation in the Knesset, starting with the first candidate on its list, then the second, third, and so on.

The Emergence of Primaries

One of the critical issues in Israeli politics is how parties make up their lists — who is chosen to make up the list, and how candidates are ranked. During the pre-state period and in the state’s early days, party functionaries decided on the list. Individual candidates didn’t have to be popular with the public — just with their party colleagues or with party leaders. Backroom deals and maneuvers were common in selecting the list and ranking its members. Knesset members accordingly felt loyal to the party kingpins who selected them, not to the voting public.

In the 1970s and 1980s primaries became more popular. The Labor party instituted primaries among its membership, who usually numbered scores of thousands or over a hundred thousand. Women, minorities and representatives of certain geographic areas were guaranteed slots on the list. In the Likud, the membership elected a Central Committee of several thousand members, which in turn nominated candidates by secret ballot. This turned out to be far from abuse-proof; local “vote contractors” recruited party members by thousands and central committee members by the score, hoping to parlay their influence into jobs and perks.

Some parties adopt variants of these two systems. In others the selection process is overtly undemocratic. In Shas, members of the list are hand-picked and ranked by the party’s spiritual leader, Rabbi Ovadia Yosef. Avigdor Lieberman, whose Yisrael Beitenu party appeals mainly to Russian voters, also hand-picks his list.

Primaries—and Democracy—in Decline

During the first decade of the 21st century the primary system deteriorated. The nadir, in terms of the democratic selection of list candidates, was reached in the 2006 elections, when Ariel Sharon broke from the Likud and founded the Kadima party. Kadima’s constitution declared Sharon the first head of the party and gave him the authority to hand-pick the party’s slate for the 2006 elections. In the 2006 elections, 71 Knesset members were elected from parties whose lists were appointed by a strongman, or by a “central committee” so small and so dominated by key leaders that the outcome was a foregone conclusion. 30 were elected from parties that elected their slate by secret ballot in a sizeable central committee. Only the Labor Party continued to elect its list in primaries open to the entire party membership.

Primaries Redux?

For the next elections, in 2008 or whenever, the prospects for internal party democracy are brighter. Kadima’s constitution provides that from the second election in which the party participates, its membership must be involved in selecting the party’s Knesset list. One of the first things Binyamin Netanyahu did when he was re-elected to head of the Likud in 2006 was to force the Central Committee to abandon its right to elect the party’s Knesset list and adopt a primary system. It now seems likely that a majority of the 18th Knesset’s members will be elected from parties which hold primaries among their mass membership.

Ordinary primaries among party members are not free from the taint of corruption. In the Labor party, every leadership contest and every election of candidates for the party list is accompanied by well-founded charges of corruption, ballot-stuffing and vote-selling. A significant number of party members are people recruited en bloc by local political leaders, who then “sell” their supporters’ votes to candidates in return for political favors. In some cases, it is alleged, the word “sell” should be written without quotation marks. This phenomenon is especially widespread in the Arab sectors, where prominent members of hamoulas (extended family groups) can sign up hundreds or thousands of distant relatives. A similar phenomenon is likely to dog Kadima’s primaries this year, where there has been active recruiting in the Arab sector.

It may be that party memberships in Israel are just too small for them to genuinely express the will of a constituency. Where party members number only a few score thousands — the Likud, with 125,000 voting members, is currently the biggest — it is too easy to corner a few thousand votes and gain undue influence. One solution may be to increase the pool of primaries voters (and make it harder to identify and corrupt large blocs of voters) by holding open primaries, where any citizen claiming to identify with the party’s principles can obtain a ballot and vote (see related article on open primaries in the “national-religious” sector).

Primaries and the Parliamentary System

Primaries require primary campaigns, which take time and oodles of money. In the American system of government, where elected officials serve fixed terms, there is plenty of time to organize primaries. One of the supposed advantages of a Parliamentary system of government, however, is the flexibility it affords: One does not need to wait for official election time to change governments. A government can lose the confidence of the parliament and elections can be held in a matter of weeks. The flip side is that parliamentary systems often do not permit time for primaries to be held.

In countries with constituency elections, such as Britain, where voters choose a representative for their district, voters in any case get to determine which person will represent them in the legislature. Primaries are less important for ensuring that legislators genuinely represent their constituents. But a proportional-election system like Israel’s often means a choice between democracy and flexibility. If one wants quick elections, there is no time for primaries and party lists have to be decided by party hacks. If one wants primaries, one has to wait patiently until the process is completed before going to general elections.

This is precisely the dilemma faced by Israel’s largest (current) party, Kadima. The head of the Labor party, Ehud Barak, has told Kadima that it must replace Ehud Olmert at the hel, quickly or else Labor will pull out of the government and precipitate elections. The only way to do this is for some small group of privileged party members, presumably the party’s MKs, to choose a new leader. If the party’s constitution is to be respected and primaries are to be held, the process cannot be completed quickly. These issues are not simply technical ones; the outcome of a vote in the party’s Knesset faction and among its leadership is liable to be very different.

Candidate Selection in the 2006 Elections

Parties with Handpicked Lists or Dominated Central Committees

Party	Seats	Comment
Kadima	29	Ariel Sharon’s party
Shas	12
Yisrael Beitenu	11
Aguda	6	Nominated by coalition of Haredi leaders
Pensioners	7	Members are leaders of large unions
Moledet	2	Component of National Union Party
Tkuma	2	" " " " "
Religious Zionism	2	" " " " "
------------------------------------------------------------------------
Total		71

Parties Using Large Central Committees and Secret Ballots

Likud	12
Arab parties	10
Meretz	5
NRP	3
------------------------
Total	30

Parties with Membership Primaries

Labor

19

Open Primaries Among the “National-Religious” Public?

Dr. Asher Cohen of Bar Ilan University's Political Science Department has suggested open primaries for Israel’s “national-religious” community. Israel’s National-Religious public is deeply committed to the principle of a sovereign Jewish state. The community’s educational institutions, formal and informal, are acknowledged to produce large numbers of idealistic young people highly motivated to good citizenship and public service. This public’s institutional and communal coherence completely break down in the political sphere, where it is in considerable disarray.

Thirty years ago this community was represented by one party, the National Religious Party (NRP), which at its height received 10% of the public vote. The NRP more or less copied the institutions of the veteran Mapai (Labor) party: It had its affiliated bank, health fund, youth movement, etc. and a Central Committee that took all political decisions. Today, at least four factions compete for the vote of this community, divided by fine points of ideology too arcane for most outsiders (and many insiders) to follow. The factions are “united” in one party, the National Union, which ran in the last elections and received nine seats. Since then the factions making up the National Union have been at each others’ throats, threatening to divide and run separately, to the disgust of many of their constituents. Recent polls show the National Union declining to five seats in the next Knesset. Part of the reason for the decline of the National Union is stagnation in its slate of Knesset candidates: The same faces keep coming back, election after election. This is widely regarded as retarding the emergence of fresh agendas and initiatives.

Right now, none of the factions holds primaries. One is committed to doing so before the next elections. Dr Asher Cohen of Bar Ilan University’s Political Science department has proposed an iconoclastic idea for the “national-religious” community: Open primaries.

The idea of open primaries, familiar in other political systems, is new in Israel: You don’t have to belong to a party to select its candidates. All you have to do is care enough about the party and its prospects to identify with it and walk into its (primaries) polling booth. In this manner Dr Cohen hopes to get around the problem of factional distinctions within the “national-religious” public. You don’t have to belong to a particular faction, or to any of the factions, to vote. In fact, according to Dr Cohen’s plan, you don’t even have to be religious. You only have to believe in strengthening the public power of the “national-religious” public. It is believed that a small but significant portion of Israel’s general public feel this way.

The object of the open primary is threefold:

a) To get around the narrow ideological differences that separate the various factions and attract the participation of people who don’t like any faction.

b) To create a new political leadership that better represents the views of the “national-religious” public and is likely to draw increased support at the polls.

c) To create new leaders who will appeal to the broader public, and to a degree, compete with the “regular,” secular parties for mainstream votes. Dr Cohen’s plan includes four stages:

1. A professional survey of political positions and attitudes within the National-Religious public, to ascertain the range and relative weight of different points of view within this public.

2. Formation of a “public committee” consisting of prominent rabbis, academics, jurists and educators reflecting the various points of view in the “national-religious” public—none of whom are candidates for election.

3. Selection of a panel of 50 potential Parliamentary candidates, half to be proposed by the “public committee” and half (on a proportional basis) by the existing factions.

4. Open primaries to rank the candidates. Anyone who, on primaries day, expresses identification with the “principles of national religious Zionism,” not to be further defined, can receive a ballot and vote.

According to this system, it is clearly possible for the entire current Parliamentary representation of the “national-religious” public to be pushed out of the 10-12 leading positions on the slate that can be considered realistic. It is also unlikely that this will happen. In all likelihood the system will produce a combination of old and new. One question that arises is whether the candidates chosen in such a system will get along and cooperate with each other in the Knesset any better than the existing candidates and factions. The advantage of nominating people who share the same party affiliation is that know each other and are, prima facie, committed to cooperation.

Primaries in Kadima Stymied, Increasing Probability of New Elections Soon.

In response to the challenge issued by Defense Minister Barak to replace Ehud Olmert as Prime Minister or face new elections, prominent leaders of the Kadima party forced Olmert to agree to hold primaries for a new party leader. The chance of swiftly holding primaries dimmed today when it was discovered that Kadima’s constitution has no provision for holding primaries while Kadima has a serving leader. 

Kadima’s constitution was tailor-made to the requirements of Ariel Sharon. It provides for primaries to select a new leader when the previous leader leaves office, through death or permanent or temporary suspension. There is no provision for holding primaries simply because a majority of the party (however defined) decides it’s time for a new leader. Introducing such a clause into Kadima’s constitution would require a solid majority of the party’s Knesset faction. With party leaders divided over a four-way race, there seems no prospect for doing so. In effect, Tzipi Livni, the current front runner, is the one who wants an accelerated primaries process, while her three opponents — Shaul Mofaz, Avi Dichter, and Meir Shetreet — are preventing her from gaining a majority for the decision.

Barak stated in his ultimatum that if Kadima did not swiftly replace Olmert Labor would force new elections. Livni’s opponents are betting that he’ll back down. Recent polls do not give Barak much reason to rejoice, were a national election held now. Backing down, however, might be perceived as a fatal blow to Barak’s credibility and might provoke a revolt against him in the Labor party.

Friedman Accuses Justice Ministry of Resisting Efforts at Transparency

In June 3 testimony before a special Knesset committee investigating the behavior of police and prosecutors in the indecent-behavior case against Minister Haim Ramon, Justice Minister Friedmann accused his own Ministry, as well as the Israeli police, of resisting efforts to probe the misconduct of police and prosecutors in investigating the case of Haim Ramon who, as previous Justice Minister, was tried for administering an unwanted kiss to a woman soldier serving in the Prime Minister’s office.

Ramon’s attorneys complained that the police had pressured the soldier to file charges against Ramon, had obtained a wiretapping warrant against Ramon illegally and then concealed the fact and the content of the wiretaps during Ramon’s trial. An independent investigation by retired Judge Vardimon Zeiler confirmed the accusations.

Friedmann accused his chief subordinate, Attorney General Menahem Mazuz, and other Justice Ministry civil servants of doing everything in their power to block the investigation into the Ramon case and prevent the assignment of individual responsibility to police, prosecutors and judges who engaged in misconduct. He called for the establishment of an official commission of inquiry into the case. Unlike a Parliamentary commission of inquiry, a commission set up under the Commissions of Inquiry Act has the authority to subpoena witnesses, including public servants, assign personal blame and apply sanctions. 

Friedmann, who replaced Ramon when the latter was forced to quit the Justice Ministry, is known to be a sharp critic of Israel’s law enforcement establishment and judicial system, and his relations with his professional subordinates have been tense. He has implied publicly that the charges against Ramon were trumped up by the law-enforcement system to remove a minister who threatened to implement reforms.

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