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Netanyahu is using coronavirus to assault Israel’s democracy

It is understandable in a crisis such as the current pandemic that countries will declare states of emergency or impose emergency regulations. Removing red-tape, repurposing government agencies (including the military), and even restricting people’s movement are necessary to combat the rapid spread of the virus. But we should be extremely wary of the overreach of government in such moments, and all the more wary in this era of illiberal democracy, when autocratic political leaders around the world have attacked the core principles of democratic orders like an independent judiciary, the free press, and the rights of minorities, among others.

We have now entered a new stage, hastened by COVID-19, which presents further opportunity for the autocratically inclined. Israel is a good case in point.

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Israeli Prime Minister Benjamin Netanyahu, friend of Donald Trump, Vladimir Putin, and Viktor Orban, has been desperately using any means at his disposal to stay in power. In the run-up to the March 2 election, the third in less than a year, he pulled out his usual tricks of race-baiting and delusional hard-right promises to fire up his base. It didn’t work, but neither did the election resolve Israel’s electoral deadlock. Opposition leader Benny Gantz received enough support to get the first shot at forming a coalition.

Never one to be outdone, Netanyahu has sought to exploit the fear generated by the coronavirus as a cover to extend his reign, despite the will of the Israeli electorate.

Among the decidedly irregular and extra-democratic steps we’ve seen of late are a decision by Netanyahu’s interim justice minister, announced in the wee hours of the morning, to postpone the prime minister’s corruption trial from March 17 to May 24, and the refusal by the Knesset Speaker Yuli Edelstein, a close ally of Netanyahu’s, to allow the Knesset itself to convene in order to elect a new speaker and pass a number of urgent laws — despite the fact that, by most accounts, a majority of the newly elected parliamentarians would have voted in support of these steps.

Gantz, the leader of the potential new government, declared that “Edelstein and Netanyahu decided to simply blow up the rules and undo Israeli democracy.” Moreover, Israel’s respected president, Reuven Rivlin, called Edelstein to tell him that his action “harms the ability of the State of Israel to function well and responsibly in an emergency.”

But Netanyahu had a third extra-democratic trick up his sleeve, bypassing the Knesset through a cabinet decision to allow the Shin Bet to track people with COVID-19 by using their mobile phone coordinates. This step was countermanded by the High Court of Justice, which ruled that such a decision required Knesset approval.

Emergency law is not foreign to Israel. The nascent country absorbed the existing emergency law of the Mandatory British government in its first legislative act, the Law and Administration Ordinance of 1948. The ninth clause of that ordinance spelled out sweeping emergency powers for the state if needed, although it also indicated that the legislature must grant authority to the prime minister to use them. As part of the general state of emergency of the time, the Israel Defense Force was given its own wide-ranging powers, which it used to censor news sources and, significantly, to impose a military government on areas of Arab residence that lasted from 1948 to 1966.

Several years after the end of the military government, the Knesset further revisited this power in a 1968 law that was supplanted in 2001 by the Basic Law: The Government. According to clause 38 of the law, the Knesset “may of its own initiative or, pursuant to a Government proposal, declare that a state of emergency exists.” While this seemed clear enough, the next clause declared that if the executive branch deemed there to be a state of emergency, it could declare one even before the Knesset convenes if it is sufficiently urgent.

This slipperiness is not unique to Israel; it may well be part of our modern notion of the state. It was the famous claim of the infamous pro-Nazi German legal scholar Carl Schmitt that “the sovereign is he who decides on the state of exception.” In other words, the very idea of sovereignty rests on the ability to declare and make use of emergency powers.

It is precisely this notion of sovereignty that fuels anti-democratic and even totalitarian impulses.

While Schmitt identified a lurking tendency in the modern use of state power, we must not mistake his description for a desired prescription. On the contrary, we must fight the tendency of regimes to base their legitimacy, even in crises, on the assertion of emergency law. We must guard against the trampling of human and civil rights, as well as of the interests of the less privileged and vocal, by government officials invested with emergency authority.

Good governance remains, in good times and bad, a well-calibrated partnership between the people and elected officials, as well as between rights and responsibilities. Now can be no different — not in Israel, and not here at home in the United States.

David N. Myers is the Kahn Professor of Jewish History at UCLA and serves as President of the Board of the New Israel Fund.

Daniel Sokatch is the CEO of the New Israel Fund.

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