High Court, A-G afraid of intervening on PM’s eligibility - analysis

We may never know what Mandelblit and the High Court really think about whether Prime Minister Benjamin Netanyahu is eligible to form the next government as they probably will never tell us.

ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state. (photo credit: MARC ISRAEL SELLEM)
ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state.
(photo credit: MARC ISRAEL SELLEM)
Attacks on Attorney-General Avichai Mandelblit and the High Court of Justice have worked their magic. We may never know what Mandelblit and the High Court really think about whether Prime Minister Benjamin Netanyahu is eligible to form the next government, as they probably will never tell us.
Some will be overjoyed by the result. They will say that Mandelblit and the High Court get involved in too many issues beyond their purview and that whoever leads the nation should be left to the will of the voters.
They might be right. Maybe the High Court should not force a prime minister to resign, leaving such issues to the voters, and maybe Netanyahu is innocent of the charges against him.
But what was striking about Tuesday’s hearing before the High Court was that neither the Attorney-General’s Office nor the High Court justices appeared interested in those fateful issues that will shape the nation’s future.
Rather, they were interested in esoteric and formalistic legal arguments about timing, jurisdiction and procedure.
Mandelblit has taken the position that until he must rule on whether Netanyahu is eligible to govern, he would prefer not to. Translation: He is really hoping Netanyahu does not get the support of 61 MKs after March 2 so he never has to give an opinion.
Although the High Court sort of flirted three times over recent weeks, and even Tuesday, with trying to get Mandelblit to reveal his position, they seem to have picked up on his bottom-line message: “Let’s stay out of this” more than anything else.
This is strange because the High Court can order anyone, certainly the attorney-general, to respond, and the party must respond.
All the High Court needed to do after Mandelblit refused to reveal his cards the first time it asked was say: ‘Tell us now or you will be in contempt of court.’
Why didn’t it force Mandelblit’s hand, why will it probably punt on the whole issue, and why is Mandelblit himself so dead-set against giving his view?
Although it was never 100% clear in the attorney-general’s legal briefs, and it took around 90 minutes of arguments on Tuesday to clarify, the real reason finally became clear as day.
Mandelblit is terrified of the consequences for his office if he intervenes.
A lawyer from his office talked to the High Court on Tuesday about the intensity of public attacks on the High Court over the last week for even daring to hear the issue of Netanyahu’s eligibility. He warned the entire legal establishment could be on the chopping block if there was a wrong move, and they would be accused again of a coup against the executive branch.
This is a radical change from the High Court’s previous readiness to, for good or bad, follow its conscience and address the fateful issues at hand.
When Netanyahu himself came personally before the court in March 2016 and threatened it with causing a national disaster if it did not endorse his policy for exploration of natural gas at the time, then-deputy chief justice Elyakim Rubinstein yawned and led a 4-1 ruling against the policy.
Economists and moral philosophers can debate what the impact on the country was, but it just happened to be that on Tuesday, Israel started a major new chapter with developing natural gas from the Leviathan field. Almost four years passed, and whatever might have been gained or lost, the sky did not fall.
On December 29, 2015, the High Court did not bat an eye when it voted 5-0 to send former prime minister Ehud Olmert to jail for at least 18 months. Incidentally, Justice Uzi Vogelman was on both that panel and Tuesday’s panel sitting in judgment of Netanyahu.
This trend of fear from the political class includes indefinite postponed rulings on the Settlements Regulations Law, the Jewish Nation-State Law and a variety of rulings punting on the question of integrating haredim into the IDF.
This does not mean the High Court does not bang heads with the political class.
It did block Acting Justice Minister Amir Ohana from appointing his candidate to replace recently retired state attorney Shai Nitzan and disqualified some – not all – candidates from the fringe right-wing party Otzma Yehudit from running for Knesset.
It has also, in the not too distant history, struck down the state’s policy of dealing with African migrants numerous times.
But apparently confronting a sitting prime minister with more than one million voters and around half of the country’s Knesset members behind him is too much.
Once again, some might understand if the High Court said it did not even have the authority to hear the issue at all.
But the High Court implied from its questions that it believes it has such authority to hear the issue, but wants to wait until after March 2 to see if Netanyahu actually has 61 MKs and President Reuven Rivlin backing him.
Would the High Court then be ready to disqualify him – right after he got a brand new shot in the arm of voter validation?
This situation is precisely what the around 70 hi-tech officials who filed the petition to the high Court were looking to avoid.
As a first preference, they said Netanyahu should be disqualified. But as a second preference, they implied at least he should be able to run without a cloud over his head if the court rules it cannot disqualify him before or after the election. Make his status, whatever it might be, clear to the voters, they said.
When the fate of the country was raised at the hearing, the justices seemed unmoved. The rare moments when they lost their patience appeared to be when either side tried to drag them into deciding the core issue of Netanyahu’s eligibility, as opposed to the technical question of whether they needed to decide his eligibility before the election or could wait until after it.
The High Court could still surprise and make a substantive decision, but all indications from Tuesday are that it will pounce on the attorney-general’s invitation to punt.