The Court’s independence and the threats it faces

The prime minister in this transitional government will ultimately drag the nation in the end to a fourth round of elections.

SUPREME COURT President Esther Hayut shares the bench with Justice Uri Shoham. (photo credit: Courtesy)
SUPREME COURT President Esther Hayut shares the bench with Justice Uri Shoham.
(photo credit: Courtesy)
Let us imagine for a brief moment a scenario that never took place, and could not have happened, at least not in our political reality.
Let us assume that after the third elections which took place on March 2, the Likud Party won 26 seats in the Knesset and the entire right-wing bloc received only 45 seats. It is clear under these circumstances that a right-wing bloc led by Benjamin Netanyahu would have had no real option to form a government with the backing of at least 61 Knesset members.
Now let us assume that the Blue and White Party led by Benny Gantz and the rest of his so-called cockpit would have attained the spectacular achievement of winning 45 seats, and with the cooperation of Yisrael Beytenu and the Labor-Gesher-Meretz Party. They could have formed a coalition government with the backing of more than 61 MKs without needing the support of the Joint Arab List.
So far, this is a simple matter. Clearly, such a result would have put an end to the ongoing political crisis. The Gantz-led coalition would have gained the support of the haredi (ultra-Orthodox) parties, and shortly after them, that of the New Right led by Ayelet Shaked and Naftali Bennett. These two would have explained to the “hilltop youths” and other hoodlums who provoke Palestinians in the West Bank daily, destroy their fields and ruin their crops, that it is better to try and maintain the assets held by the settlers within the coalition as partners – even of Left-leaning people such as Gantz, Gabi Ashkenazi, Moshe Ya’alon, and Yair Lapid – than to let the leftists partner with traitors who support terrorism and are prepared to destroy Israel; in other words, the Joint List.
This is a simplistic scenario. I think that if this was how people voted and this was how the Knesset seats were distributed, Likud members and the criminal gang led by Netanyahu would be pressured into accepting such a reality.
NOW LET US imagine that a few months before these elections, a police investigation led by Lahav 433 against Benny Gantz for alleged criminal offenses that dealt with personal benefits, would have ended and that it was revealed that there was another investigation regarding the procurement of sensitive military equipment from the period he served as IDF chief of staff, even if he himself was not a suspect.
I say again: This is nothing but a fantasy conjured up for illustration. There is no chance that such an investigation could be carried out against Gantz because he is an honest man. I do not agree with the path he has taken in the last few weeks but I have no doubt that his integrity is intact.
So let us assume for our imaginary discussion that the investigation would lead to a recommendation to indict Gantz in a criminal case, and that the attorney-general would, in such a short time, succeed in holding a hearing for Gantz and then filed an indictment against him.
Before this imaginary trial against Gantz could begin, the elections would be held and despite the dark cloud above his head Gantz’s party would get enough support to form a government.
The president would have been called on to give Gantz the task of forming the government, and one of the NGOs famous for supporting a corruption-free government would petition the Supreme Court with a demand that it block the presidential assignment.
The legal situation in this make-believe reality is completely identical to the situation we face today; a reality in which the Supreme Court needed to decide how to act. Should it disqualify Netanyahu from getting the appointment to form a government, or maintain that there is no reason to interfere?
Let us return to this make-believe reality, the one I invented only to write this article. To me, it is clear the Supreme Court would have stepped in and issued a ruling banning the president from tasking an MK who was not a minister and held no office to form a coalition after the AG had decided to indict him for alleged crimes.
Since this person is not someone who already serves as prime minister and is not already the head of a caretaker government for the last year and a half, the story would be simple: It would have been discussed simply and have ended swiftly.
The court would have ruled that among 120 MKs it was unthinkable that the one person facing an accusation of felonies was the person asked to form a government. The justices, after removing the medical masks from their faces, each in his or her own style, speech and wit, would have asked as if awestruck, “Has the country gone mad? Does someone really want to put an obstacle in front of the president and compel him to task a fugitive with forming the government of Israel?”
One of the justices, perhaps, would have added in measured tones that the court is not afraid of threats. The justice might ask if anyone believes that by ruling out this one candidate because of the criminal indictment against him, and having his court case begin days before he forms a government or after he creates one, the court was taking a political stand or attempting to dictate who will form a government.
Such an assumption would be baseless, since anyone else from the same party led by the indicted person would still be worthy and wanted.
Can anyone seriously tell me that in this make-believe outcry would have been heard against the Supreme Court for allegedly dictating who would lead the nation?
If the candidate does not hold office or any other national duty, if he is only the person elected to Knesset while being the top-ranking member of a party which won the highest number of MKs, even if he doesn’t have the absolute majority of voters, the legality of striking him out would not be questioned. Most members of the public would welcome him being struck down with a sigh of relief, even if some people would have backed his party or a party set to be in his in the government he could have created, based on the election results.
The only difference between this imaginary reality and the show that took place at the Supreme Court this week is that the prime minister in this caretaker government is the person nominated to create the new government. So any discussion about if he can or can’t, if he is unfit to serve or not, is being done under the false pretense that his removal is an attempt by the court to dictate who may or may not serve as prime minister.
THIS IS A blatantly false argument that is part of the violent, fascist demagoguery employed by the gang led by Benjamin Netanyahu.
The Supreme Court was put in a spot this week that no previous jurists were ever asked to deal with. This is not because of the complexities of the legal problem. It is not complex. The court ruled and made it into a solid political fact that anyone who is indicted cannot serve as a minister or must be fired if he is serving in that capacity when indicted. It did so without any expressed written instruction in a basic law.
The original ruling known as the “Pinhasi Rule,” to which Arye Deri would be added, was an expression of a balanced, meticulous, sensitive and decent set of values and interests that uphold the democratic nature, tradition and heritage of the State of Israel. It was accepted as a historic precedent as an expression of the fair nature of the Israeli government and the clear mind of its administration.
This is exactly why I willingly resigned from my position as prime minister long before the investigation concerning the matters relating to me ended. It was long before there was a court decision about those cases and even more than a year before the attorney-general decided to indict me.
I did so because I understood that there are laws which are above what is written in this or that piece of legislation. A prime minister in any nation, let alone ours, cannot lead the country, defend the health of the people, assure their safety, while at the same time sit in court; fight with prosecutors; and lead a public, legal, political, populist effort against the courts and police. It is impossible, not decent, and does not stand the basic test of the rules of democracy on which the legitimacy of government is founded.
When I did what I did, I thought that the police did not properly conduct the investigation against me and had leaked details from the case. I was sure then and I am still sure today that the State Prosecutor’s Office was irresponsible, partial and unfair in the investigation against me, especially in its demand to have witnesses provide early testimony; a procedure that had never happened before and has not been used since. I am convinced until this very day that the Supreme Court convicted me for a crime (unrelated to Holy Land) that I did not commit, and that it made a grave and sad mistake.
Yet these are exactly the prices we occasionally pay for living in democracy.
What is taking place today is intolerable because the Supreme Court is facing a simple matter under clear threats from the prime minister and those around him, saying that if it dares to rule in contrast to what they expect, Netanyahu and his men will punish the nation by holding a fourth round of elections (“horrible elections,” Netanyahu said), and that after the elections, should Netanyahu win them and form a government, he will pass a law bypassing the Supreme Court and finish it off once and for all.
The constraints of the Supreme Court can be understood, yet I think it should have ruled in this major issue in a manner consistent with the Pinhasi-Deri ruling. The AG’s opinion that there is no legal reason to prevent Netanyahu from forming a government proves that Mandelblit’s courage was limited, and that it ran out after the lukewarm decision to indict Netanyahu on bribery charges in only one case.
All the court had to do was remove the hot air from this unnecessary drama, shove off those who threatened it, and declare that anyone who wants to force the court to rule in his favor under the threat of punishment is proving that he is unfit to serve as prime minister.
The expectation that a candidate for the office of prime minister will behave as a decent man and not as a thug is long gone. The hope that the High Court of Justice will show bravery as expected, especially because of the sensitivity and threats it is facing, seems to be evaporating as well.
The prime minister in this transitional government will ultimately drag the nation in the end to a fourth round of elections. The citizens who hope to rebuild their lives after the coronavirus calamity will pay the price of elections to be held at the end of the year or the start of the next one. And Netanyahu, eventually, will pay the price and be removed from power.
It is a pity that hundreds and thousands of citizens in this country will pay the heavy personal price because of the recklessness of the man who led them.

The writer was the 12th prime minister of Israel.