Not justiciable

When the country is facing an election, and a sufficiently large number of its citizens are likely to vote for a man who is facing criminal charges, and will do so fully aware of the relevant details

By YEDIDIA STERN
Prime Minister Benjamin Netanyahu announces that he will request immunity from Knesset, Jan. 1, 2020 (photo credit: MARC ISRAEL SELLEM)
Prime Minister Benjamin Netanyahu announces that he will request immunity from Knesset, Jan. 1, 2020
(photo credit: MARC ISRAEL SELLEM)
The decision by the High Court of Justice to hear a petition to rule out the possibility of Benjamin Netanyahu competing for the post of prime minister in the upcoming elections, has exacerbated the already existing tension between the political and judicial systems, to the point of posing a real threat to the stability of Israel’s democracy.
The High Court cannot refrain from dealing with any case that comes before it out of fear for its status. Should such a fear prevail and paralyze the rule of law, the judicial system will have lost its independence. If judges can be intimidated once, they can be intimidated in the future as well – thus destroying the most outstanding public service in Israel. If the High Court operates on the basis of profit-and-loss considerations, at the end of the day all of us will be the losers.
But does it follow from this that the High Court should issue a ruling on whether Netanyahu, who is facing criminal charges, is a legitimate candidate to form the next government if he wins the election? I think not.
Even those who believe, as a matter of principle, that any and all issues are subject to a judicial decision – “everything is justiciable” – understand that it is not a good idea to translate every issue into legal language and assign its resolution to judges. Indeed, jurists in Israel and abroad debate the appropriate policy for involving the courts and on delineating the boundaries of their engagement: what is justiciable and what is not.
When the country is facing an election, and a sufficiently large number of its citizens are likely to vote for a man who is facing criminal charges, and will do so fully aware of the relevant details, the courts must take a step back and refrain from intervening in the public’s decision. The election of a prime minister is at the core of the political arena, and the courts must respect this.
It is true that in principle there is nothing barring Israeli law from intervening in this matter (and it would even be desirable), and the Knesset could have legislated that a person facing criminal charges may not run for the office of prime minister or be called on to form a government. However, as we know, the law currently says nothing on this matter. It seems that the legislature has chosen to keep this issue outside the courtroom.
THE JUDICIAL system sees itself, and rightly so, as one of the guardians of Israeli democracy. Together with law-enforcement agencies, it shares the responsibility, among other things, to stamp out corruption in general and governmental corruption in particular. The system has not been daunted that the police, the state prosecutor and the attorney-general in an orderly and well thought-out process, decided to file an indictment against the prime minister. But with that their role comes to an end, until the charges have been heard by the court.
Alongside this clear statement, there is also a need for a clear statement regarding the responsibility of the prime minister and his supporters for the deterioration of the public’s attitude toward the rule of law. We are witnessing a prime minister who is deliberately stirring up public delegitimization of bringing his case to the courts. This maneuver, which initially targeted the police and subsequently the state prosecutor, and now has the attorney-general in its line of fire, will be directed in the future – let there be no doubt about this – at the courts as well.
Time after time, the prime minister and his minions, of whom the most prominent – how ironic – is the minister of justice, confront the legal system and stir up emotions. Somewhat outrageous statements jabs (“a prosecution inside the prosecution,” “a governmental coup”) and vitriolic actions (the dismissal of the director general of the Justice Ministry; the attempt to appoint an acting state prosecutor in defiance of the desire of her superior, the attorney-general), driven by inappropriate motives, have become the norm in recent months.
In the history of the State of Israel, this attack will be remembered as the low point of Netanyahu’s years in power. Historians will wonder how one of the country’s most important leaders, who did so much to protect it against external enemies, could possibly have acted at the very same time and with consistent determination, moved by his own private interests, to weaken it from within.
Netanyahu and those who do his bidding are tainting themselves by shaking the very foundations of democracy, one of whose main elements is the rule of law.
Israel needs a time out, a quiet time, a cease-fire – in the ongoing battle between the judicial system and the political system. Responsible adults in each of those branches must take a step back and consider the full picture. Allowing the current situation to continue, with its imminent exacerbation, will deal a strategic blow to Israeli society.
The writer is a senior fellow at the Israel Democracy Institute and a professor of law at Bar-Ilan University.