An expanded five-panel justice panel ruled on Wednesday that Prime Minister Benjamin Netanyahu can appear before the High Court to defend his natural gas policy.
The justices, presided over by Supreme Court Deputy President Elyakim Rubinstein, approved Netanyahu’s appearance provided he files a written affidavit beforehand regarding his comments. No date has been set for the hearing, but it is expected to happen in the next week, and his affidavit is due Monday.
Five petitioners, including the Zionist Union and Meretz parties, fought the state against Netanyahu’s right to appear before the court.
According to Aviad Hacohen, the dean of Sha’arei Mishpat Academic College in Hod Hasharon, no prime minister has ever appeared before the High Court to defend one of his policies, because that would have delayed and encumbered the process.
But now it seems that Netanyahu will be the first, as the future of the state’s energy policy, possibly for decades, is in the balance.
The policy and deal in question – a comprehensive accord aimed at settling disagreements between gas developers and the government – were officially activated on December 17 after Netanyahu signed a controversial legal clause enabling the framework to move forward.
Commonly known as the gas outline, the deal received cabinet approval in August, but faced additional obstacles due to failures to receive the antitrust commissioner’s approval.
Fully realizing the gas deal ultimately required that the economy minister – a role currently being filled by Netanyahu – invoke a legal clause to circumvent the commissioner’s objections – Article 52 of the Restrictive Trade Practices Law (1988).
As part of the process of employing Article 52, Netanyahu was required to conduct consultations with the Knesset Economic Affairs Committee, chaired by MK Eitan Cabel (Zionist Union). While committee members voted against recommending the use of the clause, their conclusions were in no way legally binding.
The state’s unprecedented request to bring the prime minister to the court came after the justices arm-twisted the state into agreeing to a conditional order against it regarding the deal. Essentially, the order means the state will have to drop many of its procedural defenses of the deal, and forces it to go on the offensive in a final substantive debate over the policy.
After approximately an hour of consultations, which included a broad range of top officials in court – Energy Minister Yuval Steinitz, Foreign Ministry director-general Dore Gold, Deputy Attorney-General for Financial Issues Avi Licht, top defense official Amos Gilad, plus Attorney-General Avichai Mandelblit by telephone, the state agreed to the order.
Accusing the government of neglecting the natural gas sector and “marketing an illusion” in the industry, the Zionist Union faction on January 11, and later also Meretz and several NGOs, filed High Court petitions against the country’s gas framework.
While the petitioners were represented in court on Wednesday by MKs Shelly Yacimovich (Zionist Union), Cabel and Gal-On, opposition leader Isaac Herzog has also slammed the deal, due to the prime minister’s “disregard” of the Economic Affairs Committee recommendations, as well as his decision to sign Article 52, which “bypasses the antitrust commissioner for the first time since the state’s establishment.”
The petitions take a look at a “long series of legal flaws” in the outline, as well as issues of “extreme unreasonableness and disproportionality,” according to the faction statement.
“The petition exposes the poor conduct of the government in neglecting basic issues in the natural gas sector, such as the problem of monopolistic pricing and the lack of energy security – and now, instead of taking care of this suitably, it tries to market an illusion of an ‘outline’ that not only does not solve these problems, but cements them for generations and even worsens them,” the Zionist Union added.
Yacimovich, who has long been a vocal opponent of the gas outline, stressed that she and her colleagues would do everything in their power to abort the deal.
Also describing the plans as unreasonable, Yacimovich has emphasized “the public’s right to benefit from everyone’s natural resources, which were expropriated and plundered by a few with the help of the government.”
Essentially, the Article 52 problem is an accusation that Netanyahu is making a power grab to eliminate oversight, whereas the never-used article was written just to help the state act where the antitrust commission was overwhelmed, not where it was against a policy.
The other two main objections boil down to a guarantee to the investors of certain market conditions remaining the same for 10 years (critics say this is too long and promotes abuse) and that, with falling energy prices, the set price is overwhelmingly too high.
Bringing out every weapon they could to defend the policy, the state had Steinitz make an unusual and extended speech to the High Court about the need to immediately approve the deal.
Steinitz told the court that without the deal, “I want to say very clearly and unambiguously that from a security and energy perspective, our situation with the gas is a grave crisis. Not a crisis. A grave crisis.”
Toward the end of the hearing, the state submitted to the court classified briefings on the issue from the Defense Ministry in June 2015, the IDF in March 2015 and three briefings from the National Security Council from 2013.
The petitioners have demanded these be declassified for them to be able to view them also, with Cabel calling the act of keeping them classified “pathetic” and asking “what are they trying to hide?” Attorney Lihi Goldenberg from Adam Teva V’Din (Israel Union for Environmental Defense) said that “already, it’s clear to see that the price monopoly is turning the gas deal into an environmental nightmare.”
Citing the announcement from Phoenicia Ltd. that its glass factory will go back to using petroleum fuel due to low oil prices, and despite receiving a government grant to switch to natural gas power, Goldenberg said that “for this reason alone, the natural gas outline needs to be reexamined.”
Sharon Udasin and Michelle Malka Grossman contributed to this report.