Don’t you dare

By: David M. Weinberg

Mar 6, 2020

Published in The Jerusalem Post, March 6, 2020; and in Israel Hayom, March 8, 2020.

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Supreme Court intervention to thwart formation of a new Netanyahu government would be a declaration of war against democracy.

Despite Prime Minister Netanyahu’s strong showing, it is still not clear what coalition government can or will be cobbled together after this week’s Israeli parliamentary election.

But one thing is certain: Attempts to use the legal system to thwart a democratic majority government headed by Netanyahu are disgraceful.

The Supreme Court dare not intervene to rule out a Netanyahu prime ministership. Doing so would be a gross overstepping of court authority; a declaration of war against democracy.

Back in January, “Bagatz” (which is the Supreme Court sitting as a High Court of Justice) rejected a petition from a group of high-tech executives who wanted the court to rule in advance of the election that Netanyahu was unfit to run again for prime minister because of the criminal charges against him. The court rejected the petition on technical grounds – that it was “premature.” But it declared the matter “justiciable,” meaning the court had jurisdiction and authority to decide Netanyahu’s status. It was merely declining to do so at that time.

This week, the Court repeated this position. It rejected a petition by The Movement for Quality Government seeking an interim order freezing the president’s decision on who to task with forming the next government until government legal advisers issue a detailed opinion on whether the indicted Netanyahu should be allowed to lead a government. Again, the court determined the petition to be “premature” until the president decides who will be tasked with forming the next government. 

But in both cases, the court shockingly affirmed its own right to intervene. Some observers had the impression that Supreme Court President Esther Chayut and some of her colleagues, while biding their time, are chomping at the bit to bar Netanyahu from forming another government.

Israel’s Basic Laws (essentially, constitutional laws that undergird the entire system of jurisprudence) are clear that a prime minister under indictment can continue to serve; that the President of Israel has absolute personal discretion in giving a government mandate to the MK of his choice; that the President is not subject to the authority of the Court (one cannot file a petition against the president); and that the Knesset is free to vote-in a government that reflects the majority will of the people.

But the High Court could nevertheless try to subvert the will of the public – which is the core of democracy – and do and end-run around the president via a radically expansive “interpretation” of law – as has sometimes been the court’s want over the past two decades.

The Court is fond of a newfangled term that former Court President Aharon Barak concocted, called “essential democracy” (as opposed to pedestrian “functional democracy” where the ballot box is supreme). This means that Court takes on itself a made-up responsibility to set “essential” norms and standards of “decency” for public life, and to apply “broad interpretations” of the law to fit its own perceptions of “reasonability,” “values,” “balance,” “equality” and “propriety” – even if the law books don’t contain any such terms or prescriptions.

Invariably, Court decisions that employ such subjective and highly elastic principles tend to usurp Knesset decision-making powers, and almost always are skewed in favor the radical liberal side of the political spectrum.

For example, the Court has acted to dramatically dilute the Jewish dimension of the Jewish-and-democratic equilibrium, by referencing pliant principles of “human dignity and freedom.”

The court also has ruled imperiously with a liberal fist on a broad range of critical issues such as allocation of JNF land, Palestinian residency rights in Israel, rights of foreign converts to citizenship, Haredi draft deferments and stipends to yeshiva students, commerce on Shabbat, deportation of illegal migrants, and more.

It now threatens to highhandedly annul the all-important Basic Law of 2018: Israel as the Nation-State of the Jewish People – which was a historic, signature piece of supra-Court constitutional legislation.

And then we come to Netanyahu. As mentioned, the Court already has brazenly determined that it has jurisdiction over the question whether Netanyahu is “fit” to form a government.

This is outrageous. The Israeli public decided that Netanyahu can be prime minister and a defendant at the same time. After all, the Blue & White opposition party made this the central issue of its campaign, and it lost!

Nevertheless, and even though Israeli law expressly allows Netanyahu to continue to serve, the Court could fabricate a flimsy, far-fetched rationale for deciding otherwise.

The Supreme Court already has invented gobbledygook terms like “the enlightened values of essential democracy” based on “objective purposes” of the law. This means disconnecting law from the subjective intentions of lawmakers and supplanting such with the “objective ends” of democracy as dictated from on High.

On this basis the Court could decide that Netanyahu is too treif (not kosher) to be sworn-in again as prime minister, even before he has his day in court. The Court certainly is under pressure from left-wing political and “intellectual” forces to do so!

So much for “innocent until proven guilty” and for “the will of the people.” The gods of the Supreme Court would know better.

In my view, the Court mustn’t dare arrogate to itself powers which blatantly usurp and undermine Israeli democracy. It would cause a constitutional crisis that could rip apart Israeli society, and it might destroy the Court itself.

It is bad enough that Netanyahu’s previous government considered passing legislation that would retroactively grant immunity from prosecution to the prime minister. That would have been indecent. It is bad enough that opposition parties are now considering swift passage of a Basic Law that would retroactively change the rules of the game and prevent Netanyahu from taking office. Equally indecent. Such personally targeted legislation is corrupting and destructive.

For the Supreme Court to get into this rotten game would be disastrous. To the Court justices I say: Be careful. Heed Ecclesiastes 2:14, “The wise have eyes in their heads.”

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About David Weinberg

David M. Weinberg is a think tank director, columnist and lobbyist who is a sharp critic of Israel’s detractors and of post-Zionist trends in Israel. Read more »


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