Was the delay of Netanyahu's trial cynical or legal? - analysis

While the political establishment was split between those giving the benefit of the doubt and those accusing Netanyahu of a cynical move, the legal establishment was similarly split.

Israeli Prime Minister Benjamin Netanyahu gestures as he delivers a speech at his Jerusalem office, regarding the new measures that will be taken to fight the coronavirus, March 14, 2020 (photo credit: REUTERS/GALI TIBBON/POOL)
Israeli Prime Minister Benjamin Netanyahu gestures as he delivers a speech at his Jerusalem office, regarding the new measures that will be taken to fight the coronavirus, March 14, 2020
(photo credit: REUTERS/GALI TIBBON/POOL)
Prime Minister Benjamin Netanyahu's trial was postponed 10 weeks on Sunday until May 24 after acting Justice Minister Amir Ohana issued an order in the middle of the night to shift all court activity to a “state of extraordinary emergency.”
Both Ohana’s emergency order and the idea that it would delay Netanyahu’s trial raised massive controversy within both the political and legal establishments – especially with no endorsement by the Knesset and with Ohana having limited authority of an acting minister in a transitional government.
While the political establishment was split between those giving the benefit of the doubt and those accusing Netanyahu of a cynical move to leverage the coronavirus crisis to delay his trial, the legal establishment was similarly split.
On one hand, Supreme Court President Esther Hayut sent a letter out to the various court regions appearing to signal that while she would defend the court’s independence, she believed the message of the hour was to defer to concerns about public security.
Hayut did not specifically refer to the Netanyahu trial, but she wrote that the courts must support the country when there is a state of emergency like the one presented by the coronavirus pandemic.
There was also no attempt by the High Court to raise issues with the new policy of allowing the Shin Bet (Israel Security Agency) to perform surveillance on citizens who have been infected with the coronavirus.
Likewise, Attorney-General Avichai Mandelblit did not oppose the delay of the trial and signaled support for the Shin Bet to follow the movements of citizens who have the coronavirus.
But leading figures of the legal establishment, including former Supreme Court justices and top government lawyers blasted Netanyahu.
Many told The Jerusalem Post, under anonymity so as not to undermine the sitting legal establishment, that even if the coronavirus crisis is as bad as presented, there was no reason not to hold the initial hearing on Tuesday.
Some senior critics pointed out that the first hearing could have been held with fewer than 10 people in the room.
They added that since no witnesses were needed for this technical hearing of resolving evidentiary disputes and setting a trial schedule and since the Supreme Court is still holding hearings, there was no basis to delay a hearing of such importance to the country.
Critics said Netanyahu’s timing had unavoidably raised the cloud of a conflict of interest and that he should have made sure his hearing went forward at all costs so that the rest of his actions would not come under question.
There was also criticism that the two moves – the Shin Bet surveillance and the closing of much of the courts – were ordered together to attempt to give a veil of legitimacy to the postponement of Netanyahu's trial.
Further, critics said that the Shin Bet had not requested the new authorities given to them and that Netanyahu appeared to have pushed for the most extreme emergency measures possible.
Top intelligence officials did not even want to comment on whether they needed the new authorities.
In addition, critics said Mandelblit and Hayut had finally been steamrolled by a combination of Netanyahu’s “shock and awe” style campaign with the coronavirus along with a constant wave of political attacks against them.   
The NGO Movement for Quality Government filed a petition Sunday morning with the High Court to block the postponement as well as a request that Mandelblit freeze Ohana's order.
According to the NGO, “Minister Ohana is an interim minister in an interim government that has never received the confidence of the public.”
The movement added that, “the regulations stand in conflict with Basic Law: Human Dignity and Liberty, possibly amounting to a grave, unconstitutional violation of human rights, and were never approved by the Knesset.”
Supreme Court Justice Noam Sohlberg ruled late Sunday that Ohana and Mandelblit had until Tuesday at 4 p.m. to respond to the NGO’s petition to block the emergency order from postponing Netanyahu's trial.
Sohlberg added that, despite the NGO’s request, he would not consider issuing a temporary decision freezing Ohana's emergency order until the acting justice minister and Mandelblit had responded.
However, Hayut’s deferential letter to the emergency situation signaled that, at least at this stage, the NGO is unlikely to get a sympathetic audience.
Ohana’s emergency order will be in force for 24 hours and is expected to be extended.
All non-urgent court sessions with the exception of bail hearings and High Court of Justice hearings are postponed under the order.
The district courts – including the Jerusalem District Court where Netanyahu’s trial was due to open on Tuesday – were included in the order, which led the court to issue the postponement.
Ohana’s office reported that further steps would be examined and taken.
According to the Justice Ministry, court sessions that will be allowed while the order is in effect will be urgent requests to postpone evacuations or demolitions, deportations and arrests among other issues.
On Saturday night, Netanyahu announced that counterterrorism measures would be used to identify and track potential coronavirus patients. The measures, allowing state security services to track citizen's phones, led to dramatic public battles by the political class.
Mandelblit’s office approved Netanyahu's regulation allowing the Shin Bet (Israel Security Agency) to surveil Israeli citizens, “subject to limitations, particularly concerning the period they would be in effect.”
However, Mandelblit did not explain what any of the limitations were that he had placed on the move.
Blue and White MK and former defense minister Moshe Ya’alon responded to Netanyahu's new regulations, saying on Twitter that “everyone who criticized us when we warned against becoming [President Recep Tayyip] Erdogan’s Turkey should acknowledge and understand the cynical exploitation of the coronavirus crisis for the personal interests of a defendant before trial.”
Former justice minister Yamina MK Ayelet Shaked tweeted, “The technological surveillance after coronavirus patients is a radical move and a grave violation of privacy, but it can save lives and money to the state.”
Leon Sverdlov contributed to this report.


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