5 final takeaways from High Court’s green-lighting Bibi as PM

The fully explained decision had profound revelations

By YONAH JEREMY BOB
Likud MKs applaud Prime Minister Benjamin Netanyahu ahead of his first trial hearing on Sunday (photo credit: YONATAN SINDEL/FLASH90)
Likud MKs applaud Prime Minister Benjamin Netanyahu ahead of his first trial hearing on Sunday
(photo credit: YONATAN SINDEL/FLASH90)
1. The 11-0 unanimous vote green-lighting Prime Minister Benjamin Netanyahu glossed over major disagreements between the justices:
Underneath that unanimous vote, the differing worldviews of the court’s progressives and conservatives expressed themselves in how they reached the decision. Their differences also emerged regarding whether they left the door open to firing a prime minister under indictment in the future.
Conservative Justice David Mintz was essentially against the court even hearing the case. He viewed the Knesset’s Basic Law as strictly limiting firing a prime minister to post-conviction. Conservative Justice Noam Sohlberg appeared to have the same view. However, given that his viewpoint was winning the day with a unanimous vote, he did not go into detail regarding his reasoning.
One surprise was with moderate-conservative Justice Neal Hendel. On most policy issues, he tends to vote to uphold Knesset laws and state policies, arguing for judicial restraint. However, in this case, Hendel explicitly said he believed the court could theoretically disqualify a prime minister at the indictment stage (pre-conviction). He merely did not think that the Netanyahu case was severe enough for such dramatic action.
Progressive Justice Daphna Barak-Erez also made it clear that she believed the court could theoretically disqualify a prime minister, but should not exercise that power in the specific case of Netanyahu. Most of the other seven progressive or moderate progressive justices (out of 11 on the panel) did not take as clear a stand about potentially disqualifying a prime minister in the future.
2. When might the High Court of Justice disqualify an indicted prime minister in the future?
While the justices did not completely spell out where they might have ruled differently or might disqualify an indicted prime minister in the future, there seems to be two kinds of cases that would fit the bill. Based on questions the justices asked at the hearing and the language they used in explaining their decision, the two cases would seem to be: violence or directly endangering the future of the country’s democracy.
In essence, the justices said the alleged crime of bribery by Netanyahu may be the worst white-collar crime, but it is still just a white-collar crime. Likewise, they would say public corruption of any kind by top officials can indirectly undermine aspects of the rule of law and democracy, but that is not the same as a direct and imminent threat.
In order to overturn the will of the voters and “save the voters from themselves,” it appears the justices would require an indictment for rape/murder or for abusing power in a way that could imminently end democracy. In some countries where democracies failed, the country’s prime minister ordered the arrest of the judiciary or used some kind of secret police to arrest opposition figures in parliament for nothing other than their political disagreements.
Some might argue that Netanyahu’s various attempts to meddle with Yediot Aharonot and Walla could approach an attempt to take over the press and eliminate criticism. But the justices implied that such an analogy would not hold. Regardless of Netanyahu’s forays into controlling some media outlets, he was not that close to succeeding. Plus, the vast majority of the media remains critical of Netanyahu, especially regarding his corruption case.
3. How did progressive justices reconcile green-lighting Netanyahu with their commitment to eradicate corruption?
Several progressive justices wrote flowery and philosophical opinions about the holiness of the rule of law and how crucial it is to combat corruption. Justice Menachem Mazuz noted that guarding the public’s faith in its public servants is not some sort of low-order voluntary recommendation; rather, it is serious business.
Multiple justices said Netanyahu and the public itself had failed one of the moral tests of our time by moving forward with his premiership. All they could assemble to console themselves for green-lighting Netanyahu was that, on balance, the harm of the judiciary disqualifying him after the voters chose him would be even greater than the harm of letting him run the country.
4. How was the court respecting the electorate if 62 MKs were elected on an anti-Bibi platform?
Both during the hearings and after the decision, critics of Netanyahu have said allowing him to become premier was not respecting the will of the voter but facilitating a fraud on the electorate. They noted that 62 MKs were elected on a clear platform that they would not join a government with Netanyahu. Then how could the court use the will of the electorate to subvert its own disapproval of letting an indicted man form a new government?
Moderate-conservative Justice Yitzhak Amit explained that when the electorate votes for representatives in the Knesset, they give the legislature an irrevocable power of attorney to represent their will. It is for the MKs, once elected, to decide which of their campaign promises they can keep and which they have to compromise on.
Once the Knesset, with a national-unity majority of nearly 75 MKs, recommended Netanyahu as the next prime minister in a rotation with Blue and White’s Benny Gantz, that became the sovereign will of the voter. This was true even if some of the MKs had made contrary promises during election season.
5. Fixing the world:
Some top lawyers had asked the High Court to save the country from itself and represent forward-looking wisdom by disqualifying Netanyahu and by vetoing aspects of the coalition deal that played games with the country’s Basic Laws.
At the hearing, Amit responded sarcastically: “You want us to fix the world,” implying that some injustices are beyond the ability of the courts to fix. Justice Anat Baron wrote directly in her opinion that “the solution is embedded within the voting booths and not in the corridors of the courts.”
Despite some portrayals of the High Court as activists, these statements were as conservative as you can get. The justices essentially said: “We agree with you that there is injustice here, but we are powerless to stop it. Go try to win the next election.”