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Israel's High Court Implies It Won't Foil the Proposed Netanyahu-Gantz Government

It could be that the justices believe that this is the only way to get Israel out of its political stalemate and faulty governance by caretaker government

Mordechai Kremnitzer.
Mordechai Kremnitzer
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Mordechai Kremnitzer.
Mordechai Kremnitzer

The concerns Sunday about a total focus on the trees at the expense of the forest – the Likud-Kahol Lavan coalition agreement and the backdrop – was validated Monday.

One question should have been the focus of the High Court hearing: In a properly run democracy, can the people accept a political agreement based on constitutional change so far-reaching, even revolutionary, without the agreement being thoroughly studied with an eye on the long term?

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And in this case, the agreement is solely to let a prime minister stay in office despite the serious corruption charges against him and his methodical harassment of the law enforcement system. We should also ask if we’re facilitating the breach birth of an additional prime minister and paying with an endless number of ministers and deputy ministers.

Can such collusion be the basis for massive constitutional change when it results in the cheapening of the constitution? Can such a change – which allows someone charged with breaching the public’s trust to head the executive branch – be worthy?

Doesn’t the intent to do this at any price, even the price of holding a fourth general election, violate public policy? Is it so hard to notice the undermining of public policy when Benjamin Netanyahu is wrapped in protective gear even when he becomes the deputy prime minister, eroding the Arye Dery precedent and creating serious competition for Berlusconi’s Italy?

It’s true that at this stage, what is subject to judicial review is a coalition agreement, not an entire constitutional system. But the High Court of Justice should stop this dubious process before it metastasizes.

It’s shocking and embarrassing to see how greatly the reality – the coalition agreement – influences what’s considered normal. How quickly those who are meant to evaluate the reality instead justify and approve it, and in the process dilute our ethical resilience.

How low can one go? Well, the prime minister’s attorney made clear that to him, Netanyahu’s case isn’t special. That is, someone accused of crimes is perfectly suited to be prime minister. Thus if the Knesset legislates a norm that is explicitly the opposite, everything will be done to counter this directive, including the dissolution of the Knesset, so that the crown of criminality can be restored to its glory.

Previous rulings on the judicial review of political agreements stressed the exceptional nature of such intervention, but the cases that justified such intervention were broader than what emerged from the justices’ comments Monday.

Mishael Cheshin, a member of the Supreme Court from 1992 to 2006, addressed the possibility that such an agreement could harm “social principles or the foundations of the law,” so it could be invalidated. If he made that statement today, some of the current justices presumably would chastise him.

Meir Shamgar, the court president from 1983 to 1995, said that an invalid agreement would contain elements of corruption, particularly regarding money and integrity. Ayala Procaccia, a member of the court from 2001 to 2011, described as invalid an agreement tainted by corruption or the destruction of the regime.

Puzzling provisions

But on Monday the court’s vice president, Hanan Melcer, was justifiably horrified by the prospect of the so-called Norwegian Law, in which a Knesset member who is appointed a minister resigns his or her seat to let someone else sit in parliament.

The idea that one could, after a general election, thwart voters’ expectations by propelling someone from the bottom of a slate to the top for political considerations is delusional. But it’s less delusional than giving Netanyahu the right to form a government.

The court did much better when it debated the trees, as it were. In Monday’s hearing, the respondents’ attorneys failed to defend puzzling provisions in the agreement between Likud and Kahol Lavan. The justices showed remarkable proficiency in the material and forced the lawyers to insert clarifications.

One example is the agreement that there will not be legislation on issues outside the coronavirus crisis for the duration of the emergency situation, which was not defined in the agreement and was not given a time frame (because the first six months can be extended). In this the two future prime ministers, the heads of the executive branch, agreed to paralyze the Knesset regarding anything unrelated to the pandemic – after more than a year in which the Knesset has basically been paralyzed.

Another example is the freezing of new appointments like that of police commissioner, prison service chief and state prosecutor, which, as Supreme Court President Esther Hayut noted, have nothing to do with the coronavirus crisis. Here, too, we’re talking about appointments that have been delayed for a long time, are vital during an emergency situation and require independence.

We thus learn that the two prime ministers, Netanyahu and Benny Gantz, signed an amateurish agreement for no reason. Apparently the main energy was invested in assuring Netanyahu’s continued rule under indictment, in the disproportionate and delusional allocation of jobs to Kahol Lavan, and in treats for the Netanyahu family like remaining in the prime minister’s official residence. No space remained to properly regulate issues that apparently seemed inconsequential to Netanyahu and Gantz, like the Knesset’s authority to legislate or the cabinet’s duty to make appointments.

Attorney general in retreat

A comparison between the court’s approach and the legal opinion submitted by Attorney General Avichai Mendelblit demonstrates Mendelblit’s weakness. We’re talking about bolstering the rule of law, which has essentially been under attack since the cabinet removed Yitzhak Zamir as attorney general for demanding a thorough investigation of the 1984 Bus 300 affair, in which two bus hijackers caught alive were later killed by the Shin Bet security service.

Since then the post of attorney general has been in retreat, unwilling to declare things illegal when they were. In the overwhelming majority of cases, the red card has been kept in the referee’s pocket, even when it’s required. It has been replaced by a yellow card that points out legal or constitutional problems while declaring that the act in question is still legal and expressing a willingness to defend the law, policy or agreement.

This latest opinion by the attorney general is a salient example of this. Mendelblit notes the substantive problems with the coalition agreement, but the impression is that he came to his bottom-line conclusion in advance – it’s problematic, but it’s legal. The attorney general’s behavior toward the government is very much dependent on the overall political culture.

In a situation where there’s a maximum consideration for the attorney general’s legal opinion, we can live with polite language that points out difficulties but doesn’t take the extra step of declaring something illegal. Respect for the advice will be enough to do the job.

But in a reality where the government couldn’t care less about such advice, or even flouts red cards, this move leads to the slow collapse of the fortress of the rule of law.

The justices’ remarks seem to indicate – and I’d be thrilled to be wrong – that they too have a bottom line: not to foil the establishment of the new government, a government headed by criminal suspect Netanyahu. It could be that they, like the attorney general, have fallen in a trap of “there’s no choice,” that this is the only way to get Israel out of its political stalemate and the current defective governance by caretaker government.

It’s hard to believe, but it could be that the justices, too, have entered the whirlwind into which Netanyahu has forced the entire country via his unwillingness to resign and yield the premiership to a different minister in his party. Ignoring this is a prize for criminal behavior and an obsessive desire to rule.

But back to the forest. In this forest, not all the trees are equal; one towers over all others. This tree is the reinstalling of Netanyahu as prime minister. If this is made possible, something will happen to every other issue where the court is meticulous about the law and personal integrity. These issues will now be considered trivial. If the cedar is allowed to burn, who will be able to complain about the moss?

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