Chief justice Hayut: The fortress of justice will not fall if Bibi is PM

On Thursday, Attorney-General Avichai Mandelblit green-lighted Netanyahu despite significant misgivings regarding the bribery indictment pending against him.

High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
Prime Minister Benjamin Netanyahu warned the court not to intervene in coalition negotiations.
“After the Likud won more votes than any party in Israel’s history and a large majority of the public and Knesset want me as prime minister, it would be wrong if the court intervenes in our democracy,” Netanyahu said in a press conference in the Prime Minister’s Residence on Monday.  
Netanyahu said his coalition agreement with Blue and White was sensitive and he hoped the court does not change it.
“If there will be intervention, it increases the chance that we will be dragged to fourth elections, which would be a disaster for the State of Israel,” he said. “I hope the Supreme Court will not do this.”
Supreme Court President Esther Hayut and a maximum 11-judge panel appeared on Monday to be leaning again toward letting the Blue and White-Likud deal go through despite its controversial constitutional provisions.
Rebuking one of the petitioner’s lawyers, who said the voters had no idea this problematic new form of government would be foisted on them, Hayut said: “The voters did not vote for a specific form of government, they voted for political parties and for the Knesset.”
On Sunday, the High Court of Justice seemed ready to let Prime Minister Benjamin Netanyahu form the next government despite the bribery indictment pending against him.
At the same time, the justices seemed to be upset about some provisions of the deal.
If the High Court endorses the deal, a government may be formed as early as Thursday. If it nixes the deal, the country may go to new elections.
A third possibility was that the High Court would nix only some smaller aspects of the deal, and the parties would cut their losses and still form a government.
A decision could come as early as Tuesday. But after 16 hours of hearings over two days, the expectation was the decision would come on Thursday, while leaving enough time for the coalition to form a government by Thursday’s midnight deadline.
Hayut appeared to give the coalition a big win at the opening of the hearing, suggesting that the lawyers focus “only on issues not requiring Knesset legislation.”
The implication was that the High Court would not disqualify any of the changes to the Basic Laws required by the deal until after the Knesset successfully passes them into law.
This means the government will overwhelmingly go into effect, leaving its critics to try and slice pieces off before the High Court at a later date only after it is established.
Regarding changes to the Basic Laws required by the coalition deal, Attorney-General Avichai Mandelblit last week said once the government is established, portions of the deal that conflict with Israel’s democratic structure may need to be amended.
He voiced concern that the deal restricts the Knesset’s powers for six months, and possibly beyond, to consider issues beyond the coronavirus crisis.
Several of the justices voiced opposition to this, saying the new government could not give itself an unlimited coronavirus emergency period for playing with the country’s normal legal structure.
Along those lines, Hayut pressed the deal’s defenders to explain why the coronavirus crisis prevented them from appointing a permanent police inspector-general.
The deal freezes most top officials in place during the six-month coronavirus emergency period.
Like Mandelblit, Justice Neal Hendel showed distaste for provisions that weakened the role of the opposition in the Knesset, such as removing them from certain committee positions as well as from the Judicial Selection Committee.
At the same time, when the petitioners attacked this point, the justices suggested that however problematic it might be, there had been past rotation- or unity-deal eras when the opposition was given fewer roles.
The basis of this, they said, was the idea that a national-unity government already represents multiple viewpoints and interests in the country and in some ways allows even more public debate than when there is a mere disempowered opposition.
This vision “is very dangerous,” Yesh Atid lawyer Eliram Bakal said. The justices must not let the unity government say there is no opposition and that it represents all the interests of all groups in Israel, he said.
Mandelblit also objected to dividing the government into two blocs and to a deal to appoint Osnat Mark to the Judicial Selection Committee, even though she will only become an MK after some Likud ministers resign their positions.
This and other moves also disturbed High Court Vice President Hanan Melcer, who asked: “How can you post-election change the order on your list [for jobs and seats] in the Knesset?” This would be misleading the voters, he said.
Melcer also warned that the suggested 52 ministers and deputy ministers was close to a point where a majority of the Knesset would be part of the cabinet, ending the idea that the executive and legislative branches are separate.
The court asked for the coalition parties to clarify and fix within 24 hours certain legal problems that the justices had flagged.
Avigdor Feldman, one of the petitioners’ lawyers, objected the idea of the High Court waiting to rule on proposed Knesset bills until they became law.
“We went to sleep with one prime minister and woke up to two prime ministers,” he said, adding that the High Court should not be so passive to wait for major new legal facts to be set and then have to roll them back later.
Both Feldman and Movement for the Quality of Government in Israel lawyer Eliad Shraga said the justices could not ignore “the elephant in the room” that none of the changes to the law were out of an ideological belief that this would improve Israel’s governmental structure.
Rather, they said it was a testament to the lack of trust Blue and White had in Netanyahu and their commitment to force him out of the prime minister’s chair in October 2021.
Leading into the hearing, Yesh Atid MK Karin Elharar said: “The State of Israel has known many coalition deals, but we have never seen a deal that is this bad. It is a deal that weakens the Knesset, oppresses the opposition” and treats public appointments as if they are part of “someone’s personal wallet.”
However, Michael Ravilo, a lawyer for Netanyahu, said the deal that was reached was extremely sensitive and had taken so long to negotiate that the justices should not touch it, lest they risk going to a fourth election.