The High Court hearing: Judicial activism or legal pedantry? - opinion

The stakes in the High Court’s decision over Netanyahu’s suitability to form a government could not be higher

By JEFF BARAK
THE view from the Supreme Court: While the debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent (photo credit: Courtesy)
THE view from the Supreme Court: While the debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent
(photo credit: Courtesy)
This is the moment the Supreme Court has been dreading.
No matter how it rules in the petitions against Benjamin Netanyahu’s suitability to head Israel’s next government, and the detrimental to democracy coalition agreement that will grant him his fifth term in office, half the country will vehemently disagree with its findings. For a system that relies on a public consensus of legitimacy for its authority, such a divide is disastrous.
In a masterpiece of understatement, Attorney-General Avichai Mandelblit wrote in an opinion published last week of the “significant difficulties” posed by Netanyahu once more heading a government. What he meant, of course, is that it is untenable for a man facing criminal charges on such serious offenses as bribery, fraud and breach of trust to be trusted with the formation of the country’s next government.
And yet, according to Mandelblit, what is untenable is not necessarily illegal. The fact that there is no law explicitly prohibiting an indicted Knesset member from becoming prime minister thereby permits it, the attorney-general argued.
This goes against the grain. Surely, if, according to the law, a cabinet minister has to resign if he or she is indicted, then it is indefensible for a politician under indictment to become prime minister. Back in 2008, Netanyahu himself made such an argument, when he called on Ehud OImert (who at the time was not yet even indicted) to step down, on the valid grounds that “a prime minister who is neck-deep in investigations has no public or moral mandate to make crucial decisions.”
Common sense would also dictate that if a person under indictment cannot be appointed as IDF chief of staff, city mayor or any job in the public sector, then it is also inconceivable to allow an indicted politician to serve as prime minister.
Moreover, as his legal problems have deepened, Netanyahu has stepped up his attacks on the judicial system. Over the past year, the prime minister supported initiatives to weaken the powers of the High Court of Justice, seeking to revoke its authority from intervening in legislation and administrative resolutions by the government, ministers or the Knesset, in his ultimately unsuccessful attempt to win immunity from prosecution.
Even in the coalition agreement with Benny Gantz’s Blue and White Party, Netanyahu was unable to restrain himself from threatening the court. Despite running three election campaigns under a promise not to serve in a government led by a prime minister under indictment precisely because of the dangers to the rule of law, Gantz shamefully agreed to a clause in the coalition agreement that basically puts a bullet to the court’s head.
Under the agreement, if Netanyahu is disqualified by the High Court from serving as prime minister in the first six months of the coalition’s lifespan, the Knesset will be dissolved, and new elections called. This seriously violates the principle of separation of powers, since it triggers the dissolution of the parliament in the case of a judicial ruling against the head of the executive branch.
In private conversations, moreover, Netanyahu has been reported as saying he believes the Supreme Court is part of a judicial “deep state” determined to oust him from power and send him to jail. If he is banned from serving as prime minister, “masses will take to the streets,” he reportedly said, predicting a boycott of any future election. If the court does rule against him, these behind-closed-door comments will soon become the order of the day to his supporters.
THIS FEAR for the future of Israel’s democracy will no doubt weigh heavily on the Supreme Court justices as they make their decision. In his opinion, Mandelblit also argued that since the cases against Netanyahu were well known to the public when they went to the polls, there was insufficient reason to warrant the court’s intervention in the Knesset’s decision to task Netanyahu with forming the next government.
As law professor and Israel Democracy Institute senior fellow Yedidya Stern pithily put it, the court is facing a choice of either “a corrupt prime minister, or a cultural war with no end.” Neither is an appealing option, but there is no way for the court to shirk its duty: it has to rule one way or the other.
Its decision this week will determine not just Israel’s immediate political future but that of the High Court for years to come. Will Chief Justice Esther Hayut and her fellow justices follow the path of judicial activism promoted by her predecessor Aharon Barak and others, or retreat into narrow legal pedantry?
The stakes could not be higher, but if the country wants to live up to its founding ethos of being “a light unto the nations,” the court has to rule that a politician under indictment for serious crimes cannot be tasked with forming a government, no matter the political fallout.
Such a ruling is the only way, in the long term, to protect Israel’s democracy and ensure the country’s needs do not become subservient to a politician’s determination to avoid a possible prison sentence.
The writer is a former editor-in-chief of The Jerusalem Post.