High Court and the Lebanon maritime deal - analysis

Both on October 3 and again on Wednesday, the court, with the latest decision written by conservative Justice David Mintz, rejected getting involved before the final decision-making point.

The High Court justices are seen at the retiring of Menachem Mazuz. (photo credit: JUDICIARY SPOKESPERSON)
The High Court justices are seen at the retiring of Menachem Mazuz.
(photo credit: JUDICIARY SPOKESPERSON)

On Wednesday, the High Court of Justice rejected, for the second time, a petition to compel it to freeze the government’s moves toward negotiating a maritime deal with Lebanon.

Both on October 3 and again on Wednesday, the court, with the latest decision written by conservative Justice David Mintz, rejected getting involved before the final decision-making point.

At first glance, the opponents of the deal still might have a chance to block the deal.

As of Wednesday, it appears that the government will place the deal before the Knesset for advice and consultation for a 14-day period and then vote on the deal, without asking for Knesset approval.

Referendum needed?

 THEN-PRIME MINISTER Naftali Bennett glances at Justice Minister Gideon Sa’ar during a debate in the Knesset plenum, earlier this year. (credit: OLIVIER FITOUSSI/FLASH90) THEN-PRIME MINISTER Naftali Bennett glances at Justice Minister Gideon Sa’ar during a debate in the Knesset plenum, earlier this year. (credit: OLIVIER FITOUSSI/FLASH90)

The petitioners who attack the deal argued that it cannot be approved without a referendum because it includes yielding territory – which under Israeli law may require a referendum – while also stating that a transition government, such as the current one, cannot decide fateful historic questions for the country without Knesset approval.

Between these two arguments, the second one is likely to give the High Court greater pause.

There is some lack of clarity about the mix of territorial and economic rights being given up and possibly even about whether decades-old conventions regarding maritime law fully anticipated the significance of natural gas fields far off countries’ coasts.

However, supporters of the deal have noted that in 2011 Israel cut a maritime deal with Cyprus which did not go to a referendum.

What makes the argument about needing Knesset approval more serious is that Attorney-General Gali Baharav-Miara has also recommended to the government that it seek Knesset approval.

Obviously, the critics hope this would block the deal before the election since the coalition lacks 61 votes to approve anything at present.

And yet this is exactly why the High Court is likely not to block the deal.

It is not that the High Court is in lockstep with the government.

In a recent ruling, the High Court nixed the transition appointment of its own former justice Menachem Mazuz to an eight-year term as chief of the country’s vetting committee for senior professional appointments, arguing that such an extended appointment by a transitional government would inappropriately tie the hands of the next post-election government.

Also, at least portions of the government wanted to block former Yamina MK Amichai Chikli from running with the Likud after he clearly bent Knesset laws about toppling a coalition to defect to the opposition. The High Court rejected the position of some coalition members and let Chikli run.

However, these points again also prove why the High Court is likely to stay out of the way.

An easy solution

IN ESSENCE, the High Court only nixed Mazuz because it knew there was an easy solution for the government – appointing Elyakim Rubinstein as temporary vetting committee chief to approve Herzl Halevi as the next IDF chief.

Had there been no such solution, it probably would have ruled differently. The court wanted its ruling to cause as few ripples as possible.

This same attitude led to a stunning 8-1 approval of Chikli to run with the Likud so as not to deprive Likud voters of a candidate they wanted. the only objection being unclear technicalities about when Chikli should have resigned from Yamina.

Once more, the court wanted the easy way out in election season.

Here, the easy way out will be to just stay out of the way.

True, transitional governments are not supposed to do too much during election season, but Netanyahu took plenty of significant foreign policy moves during election seasons and a stronger court principle is not second-guessing the government and security experts on foreign policy decisions.

This is a highly complex foreign policy decision far beyond the court’s expertise and if it blocks the deal, the deal may disappear.

The justices will not want the responsibility for killing the deal. Like Baharav-Miara, they will probably recommend Knesset approval, but not demand it.

This is why right-wing justice Mintz is not slowing the deal now.

If there was more doubt within the High Court about what the final ruling would be, then slowing down the train galloping forward toward approval would make sense.

Of course, the court has intervened in such issues, most notably when it forced an earlier Benjamin Netanyahu government to alter the terms of an earlier natural gas deal.

So the High Court could still throw a last-second wrench into the issue.

But that change was to avoid open conflict with other Basic Laws and all signs here are that the court will do its best not to intervene.