The most influential jurists in Israel defend democracy in the courts

#17 - Guardians of democracy: Avichai Mandelblit and Esther Hayut

(L-R) Avichai Mandelblit and Esther Hayut (photo credit: MARC ISRAEL SELLEM)
(L-R) Avichai Mandelblit and Esther Hayut
(photo credit: MARC ISRAEL SELLEM)
Attorney-General Avichai Mandelblit was not only one of the most influential Jews of 2020, but may turn out to be one of the most influential jurists in Israeli history, right next to his hero, former chief justice Meir Shamgar.
Like Shamgar, Mandelblit brings a rare combination of having served as the IDF’s Military Advocate General and then as attorney-general, with potential – post-the Netanyahu era – for appointment to the High Court of Justice.
On November 21, 2019, Mandelblit announced he would indict Netanyahu for a combination of bribery, fraud and breach of trust in three separate corruption affairs. On January 28, he filed the indictment, having successfully beaten back Netanyahu’s assertion of immunity.
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On May 24, Mandelblit’s hand-picked prosecution team opened the trial against Netanyahu.
Despite indicting Netanyahu, when a petition to the High Court was filed by NGOs to disqualify Netanyahu from forming a government, Mandelblit green-lighted the prime minister.
His tightrope wording for justifying this position – stating that Netanyahu should be voluntarily stepping down but that the law does not prohibit him from staying on – was practically word-for-word the position which the High Court eventually adopted.
In a very real way, this understated man, through his indictment decision and green-lighting decision of Netanyahu, were the formative events of the country’s politics in 2020 and likely beyond.
No one gave him credit for green-lighting Netanyahu, but Netanyahu supporters have savaged him with a line of unflattering stories to try to force him from office.
Mandelblit has refused to issue an order to end the protests around Netanyahu’s Balfour official state residence despite requests by the prime minister and his supporters that the demonstrations have gotten out of hand.
If the fate of the prime minister was not in Mandelblit’s hands, it might be noticed that he has heavily impacted nearly every major legislative effort that came through during his term.
Mandelblit has been a key figure in shaping corona-era legislation, whether with regard to Shin Bet surveillance of infected persons or regarding conditions for declaring an emergency to ensuring that the Knesset and the judicial branch reopened after initial corona restrictions on their operations.
Mandelblit’s opposition also helped sink the Settlements Regulations Law before the High Court and his appeal for a maximum High Court panel may lead to a decision to permit a demolition of a terrorist’s home, which a smaller High Court panel vetoed.
In later 2020 or early 2021, Mandelblit is also expected to determine the fates of Shas Party leader Arye Deri, UTJ party leader Ya’acov Litzman and former Likud coalition chairman David Bitan – all accused of different varieties of corruption.
Supreme Court President Esther Hayut was destined to disappoint critics on both the political Right and Left in 2020, but no one can deny that she was influential.
Like her predecessor, Miriam Naor, she is categorized by many as a moderate activist. She is ready to strike down Knesset laws and state policies in particular circumstances, but tries to avoid wading too deeply into issues with larger political implications.
The defining decision of her era will likely be her own vote within the 11-0 vote of the High Court green-lighting Prime Minister Benjamin Netanyahu in early May to form a new government.
This will always be seen on the Left as an unforgivable shirking of moral authority and responsibility: the moment when the gatekeepers of last resort permitted a man indicted for bribery continue to run the country.
Some have slammed her for voting in the minority to try to disqualify Joint List MK Hiba Yazbek from running for the Knesset.
Though a majority of five justices cleared Yazbek, Hayut’s minority vote was seen by critics on the Left as a betrayal to populist hatred of Arabs.
Curiously, although Hayut and the High Court eventually exercised some oversight over the government’s use of the Shin Bet to conduct surveillance of novel coronavirus-infected citizens, many critics on the Left declared her performance as too little too late.
The criticism of Hayut is at least as intense from the Right.
Hayut’s three great sins from the right-wing perspective have been: firing of Likud’s Yuli Edelstein from the post of Knesset speaker, their loud condemnations of Netanyahu even as they allowed him to form a new government and invalidating the Settlements Regulation Law.
Ideological conservatives were fuming that the High Court even agreed to hear the issue of whether Netanyahu could remain prime minister. They viewed it as a Knesset matter with an open and shut Basic Law that permitted Netanyahu to continue until conviction that the High Court should not have touched.
High Court Justices David Mintz and Noam Sohlberg even agreed with this criticism even as they joined their more activist brethren for the full 11-0 result of green-lighting Netanyahu.
This is part of the big picture ideological battle in which figures like former justice minister Ayelet Shaked say that the High Court should never hear cases regarding Basic Laws.
However, Hayut and the majority of the current court believe the justices have the authority to hear cases regarding Basic Laws in case there is a need to parse two Basic Laws which contradict each other.
Still, it would seem that Hayut will go to extensive lengths to avoid invalidating a Basic Law. She has avoiding ruling on the Jewish Nation State Law now for around two years.
The High Court under Hayut’s direction, has also delayed ruling on the issue of haredim (ultra-Orthodox) integrating into the IDF for even longer.
She did spark calls to reduce the High Court’s power after invalidating the Settlements Regulations Law, which put the fate of over 4,000 residential units in the West Bank into question. Still, even there she held off the decision until three years after the petition against it was filed.
The claim is that she had hoped the politicians would resolve the controversial issues. But when that fails to happen, she eventually steps in – along with all of the political storm that her action generates.