Who is winning the legal wars right now, gov’t or opposition? - analysis

The legal wars between the government and the opposition are about as intense as they have ever been.

SUPREME COURT justices arrive for a hearing at the Supreme Court in Jerusalem last month.  (photo credit: YONATAN SINDEL/FLASH 90)
SUPREME COURT justices arrive for a hearing at the Supreme Court in Jerusalem last month.
(photo credit: YONATAN SINDEL/FLASH 90)

The legal wars between the government and the opposition are about as intense as they have ever been.

The opposition had a big victory last week when it convinced the High Court of Justice to nix Menachem Mazuz as the next permanent chief of the vetting committee for senior officials.

As a former attorney-general and former High Court justice, one might have thought that Mazuz’s former fellow justices would have had more sympathy for him.

But there was a twist, or possibly a situation engineered by the court, to avoid any conflict.

The panel that ruled on Mazuz’s appointment included two justices, Yael Wilner and Ruth Ronen, who either served with Mazuz for a shorter period, or did not serve with him at all.

Supreme Court judge Menachem (meni) mazuz seen at   Israeli businessman Jacky ben Zaken hearing of his appeal on manipulating the share price of Financial Levers. on July 14, 2016.  (credit: FLASH90)Supreme Court judge Menachem (meni) mazuz seen at Israeli businessman Jacky ben Zaken hearing of his appeal on manipulating the share price of Financial Levers. on July 14, 2016. (credit: FLASH90)

Noam Sohlberg, the other justice, served with him for longer, but is known as Mazuz’s polar opposite on many constitutional issues.

Still, whatever the lineup, using the High Court to take down Mazuz was a win for the opposition.

This means that this government does not control the vetting committee for future appointments of the next police or prison chief, likely to come up between now and the end of 2023.

Also, if the government could not find someone who would agree to the High Court’s formula of a temporary appointment merely to vet Herzl Halevi as the next IDF chief, then Halevi’s appointment itself would be sidelined.

This is where the government made a comeback. By this week, it had approved former deputy chief justice Elyakim Rubinstein to vet Halevi.

Once Halevi is approved, this will be a win since it was unclear whether it would be able to get an IDF chief approved in the middle of election season.

Disqualifications efforts from both sides

Next is the normal election season attempts by both sides to disqualify candidates.

Either the score is neutral, or the government won, depending on how you keep score.

Amichai Chikli, who defected from Yamina and was due to join the Knesset as part of the Likud, was disqualified.

This, despite the fact that Chikli had gotten some informal support from the Jerusalem District Court, which presided over a negotiated deal between the Knesset legal adviser and Chikli.

This story may not be over — Chikli may yet triumph, but the Central Election Commission is headed by High Court Justice Yitzhak Amit, who has been a moderate on many issues. This could suggest that much of the High Court will see the issue the way he does.

On the other hand, in 2020, the High Court narrowly approved Hila Yazbek to run by a 5-4 majority. That was before the High Court added additional conservative justices who may have moved the general dial more in the direction of the right-wing opposition.

Might that shift be enough to change the result in the Chikli case?

Even if the opposition loses with Chikli, it has won with Idit Silman, who also defected from Yamina to Likud, but did it much later in the Knesset legislative season, such that she was never formally declared a defector like Chikli.

Some may see this as an obvious result, and not a win for the opposition per se, but the fact remains that there are allegations — and pending lawsuits — against Silman for allegedly agreeing to ditch Yamina for an advance promise to be included in the Likud slate.

If Silman happened to earn the Likud’s goodwill sufficiently to get onto their slate after her resignation, she is in the clear. But if promises were made while she was still in Yamina, that would be criminal.

Amit could have held up her candidacy until these issues are resolved and the fact that he did not, is a clear win for the opposition – rewarding whatever game it played with Silman with no penalty.

The Arab parties take center stage

Next, the opposition will doubtlessly say that Amit’s likely failure to disqualify any of the Israeli-Arab parties shows bias toward the government and the Left.

They will rally to the cry of it being unfair that Michael Ben-Ari has been previously disqualified from running whereas Israeli-Arab MKs have not been disqualified, including one who praised terrorists Samir Kuntar and Dalal Mughrabi, and refused to condemn physical resistance against the IDF.

But this argument leaves out some points.

Religious Zionist MK Itamar Ben-Gvir has made many controversial statements over the years which the Left has said it feels demand his disqualification. Every time this was brought up, the High Court let him run anyway.

Moreover, a number of Israeli-Arabs have been indicted and convicted for statements or actions against Israel, but these politicians do not get to the point of running, or running again once convicted.

One well-known case is former Balad firebrand Haneen Zoabi, but there are quite a few other examples.

Finally, all of this is just the warm-up for who controls the government after November 1.

If Yair Lapid or Benny Gantz are prime minister, the trial against Benjamin Netanyahu will continue and there will be no major personnel or policy changes to the High Court or to the Attorney-General’s Office beyond some significant changes made by Justice Minister Gideon Sa’ar this past year.

If Netanyahu wins, all bets are off and the legal establishment could look very different down the line.