Netanayhu files personal affidavit to High Court to defend his natural gas policy

No PM has ever appeared before the High Court to defend one of his policies, because that would have delayed and encumbered the process, legal expert says.

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February 8, 2016 15:52
3 minute read.
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Prime Minister Benjamin Netanyahu at a special Knesset address, October 13, 2015. (photo credit: KOBI GIDON / GPO)

Prime Minister Benjamin Netanyahu on Monday filed a personal affidavit with the High Court of Justice to defend his natural gas policy against five petitions filed by Zionist Union, Meretz and various NGOs.

The affidavit says “there is no other realistic option” to exploit the country’s natural gas resources other than the one Netanyahu has chosen.

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The main purpose of the affidavit was to justify Netanyahu’s first-ever use of the power of the Economy minister (a role which he recently took over) to bypass the antitrust authority’s objections to the policy.

The premier wrote he had “decided to use my authority under Article 52... after I was convinced that there was an essential need for the quick rescue of the natural gas market in Israel from the freeze it went into after the former antitrust commissioner decided to withdraw support from the executive order to which he had agreed” with the developers of the Tamar and Leviathan reservoirs.

He had, “on the basis of professional opinions presented to me, come “to the unmistakable conclusion that this was needed, meaning vital, from the perspectives of foreign policy and national security,” the document says.

MK Shelly Yacimovich (Zionist Union) accused Netanyahu of “lying” to the court and called his affidavit “another unprecedented step in a series of power-grabbing steps.”

She said there were no national security problems behind the policy, and that his real motives were to satisfy his economic allies and developers.

Meretz party leader Zehava Gal-On said “the prime minister is panicking and wants to use his political power to intimidate the court, using this unprofessional affidavit, which adds nothing new.”

The Movement for Quality Government asked the court to expand its already-expanded five-justice panel to the largest size possible, a nine-justice panel.

The NGO thought such an enlargement was needed to weather what it saw as intimidation and pressure that Netanyahu’s personal intervention had brought to the issue.

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 w as approved by the cabinet in August, but faced additional obstacles due to failure to win the antitrust commissioner’s approval.

Fully realizing the gas deal 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, Netanyahu held consultations with the Knesset Economic Affairs Committee, chaired by MK Eitan Cabel (Zionist Union). The committee voted against recommending the clause, but their conclusions were not legally binding.

According to Aviad Hacohen, the dean of Sha’arei Mishpat Academic College, no prime minister has ever appeared before the High Court to defend a policy.

With the filing of the six-page affidavit and an anticipated in-person appearance in the coming days, Netanyahu will be the first, with the future of the state’s energy policy, possibly for decades, in the balance.

Despite objections by the petitioners, justices on Wednesday approved Netanyahu making a personal appearance, provided he would file a written affidavit beforehand.

The affidavit fleshes out some of the national security and foreign policy issues Netanyahu mentions.

He writes that in January and February he met with US Vice President Joseph Biden, the leaders of Greece and Cyprus and has been in regular touch with Egypt and Turkey about enhancing relations – all due to these countries anticipating that the gas deal is on the verge of moving forward.

Noting that 50% of the state’s electricity flows from natural gas, the prime minister says having only one reservoir running, Tamar, leaves the country too exposed from a national security perspective.

Rejecting accusations that his deal empowers monopolies, Netanyahu holds himself as an ardent supporter of competition and counters that the unlocking the freeze on gas exploitation will unlock stifled competition.

He writes that the opposition provided no feasible alternative or concrete evidence that markets or customers would be harmed by the claimed monopoly issues.

Netanyahu says it is unclear why the opposition wanted legislation to solve an issue where the executive is already empowered.

He rejects arguments about deregulation and freezing prices that developers can charge for 10 years at what has been criticized as a high rate, adding that Israel is viewed as overly regulatory and there was no way to get companies to develop the reservoirs without giving them an extended period of stability.

Sharon Udasin contributed to this report.


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