In Netanyahu Ruling, Israel's Chief Justice Did Exactly What She Should Have Done

Ravit Hecht
Ravit Hecht
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Justice Esther Hayut sitting in the High Court, Jerusalem, May 2020.
Justice Esther Hayut sitting in the High Court, Jerusalem, May 2020. Credit: Oren Ben Hakoon‎
Ravit Hecht
Ravit Hecht

The High Court of Justice’s decision to reject the petition seeking to bar Benjamin Netanyahu from forming a government is the most reasonable decision that could have been handed down. The ruling written by court president Justice Esther Hayut is thoroughly explained, and its main claim is convincing because it is so simple – there is currently nothing in the law preventing a prime minister from serving while under indictment, and there is no legal barrier to appointing someone who has been criminally indicted to form a government. Hayut also explained how Netanyahu’s case is distinct from the Dery-Pinhasi precedent, which requires a prime minister to dismiss ministers who have been criminally charged, and from rulings which require local authorities to dismiss mayors under the same circumstances.

The judicial critique of the legislative body – which “appoints” the candidate to form a government in this case – should be limited and more cautious compared to other authorities because the court is not a political player. What’s more, Hayut refused to turn the court into a tool to be used by one political camp against the other. She made sure the court remained loyal to its duty: preserving the rule of law.

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This attitude does not reflect weakness, but in fact strengthens the court on a more important level, that of cultivating public trust in it. It is not a happy situation that the prime minister, incumbent or not, is accused of serious crimes, and it’s a very difficult situation, as the president herself remarked in the decision. However, the solution to this depressing situation shouldn’t be born in the High Court but rather in the ballot box, or in the ruling of the court that will hear Netanyahus’ criminal case. Despite the cynical use of the language of the law by the prime minister and his supporters, it is not the job of the High Court to descend into the muddy battlefield, to figure out what he’s up to and to invent laws out of thin air to stop him. The judges are not supposed to undo the failures of the political players in their fight against Netanyahu.

Hayut probably could have taken a sharper stance regarding the coalition agreements, parts of which look very problematic constitutionally, rather than excuse herself from discussing them more pointedly on the claim that these sections have yet to be legislated. Still, Hayut is certainly hinting that if certain sections will be legislated, if the work of the Knesset is paralyzed and the opposition subjugated, there is a good chance that the High Court will intervene as necessary. If anything, Netanyahu’s opponents should be able to see the political capital here: If the High Court had approved Netanyahu as candidate for prime minister (for what can we do, the law says what it says) and overturned the coalition agreements, Netanyahu could have gone to elections as “the coronavirus victor” with the backing of the High Court and without any serious political opposition in his way.

It is no coincidence the High Court decision was made unanimously – conservatives and liberals in one voice. These things are so simple and basic, and in a normal climate they would have been clear to rightists and leftists, Netanyahu-lovers and Netanyahu-haters. However, this isn’t the situation. The High Court – whom the Netanyahu-haters had sworn to protect just a moment earlier – has turned into an indolent institution in their eyes; Hayut has become a coward or collaborator with Balfour Street.

This tendency is familiar. Journalists who do not agree with every clause in the list of the Netanyahu-hating cult are labeled as defiled, no matter that they bitterly criticize him or uncover his corruption. David Grossman, who supported a unity government – is called a traitor. They rise up to cut down anyone who doesn’t perform the movements of the dance exactly as he is expected to. And, well, this is the perfect mirror image of Netanyahu’s supporters; when their lord is served an indictment, it’s a mafia, and when a ruling goes in his favor, suddenly “there are judges in Jerusalem,” as Menachem Begin said.

In this moronic climate, in which it is impossible to speak about the core of any issue without unleashing a wave of violent emotion that purports to be a legal argument, Hayut is the right person in the right place.