The hearings held by the High Court of Justice this week over Benjamin Netanyahu’s ability to serve while under indictment and his coalition agreement with Benny Gantz were yet another battle in the long legal campaign to hold the prime minister accountable.
Supreme Court President Esther Hayut and her 10 colleagues on the bench are unlikely to disqualify Netanyahu over his indictment in corruption cases or pose serious challenges to his coalition deal. Their responsibility is instead toward the judicial system they represent.
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The 11 High Court justices may enlighten us later this week on whether Clause 18 in the Basic Law on the Government specifically refers only to a prime minister who has already sworn in a government, or whether it refers to a caretaker prime minister of an interim government as well. Who knows, they may even define whether the “will of the people” is manifested in the results of an election or in the votes of a Knesset majority. But they will probably refrain from an intervention.
The real question in the High Court isn’t one that is facing the justices. However each one of them rules on the petitions, they are making an important point just by sitting there: that politicians can still be held to account. The fact that the point needs to be made is evident by the campaign Netanyahu has been running since the weekend, in which he has sought to delegitimize the High Court’s role as the only effective check on the decisions and actions of state authorities.
On Saturday night, Netanyahu briefed his loyalists. The message was that “the judiciary now has checks and balances. Only in Israel does the High Court have unquestioned power to intervene and subvert the will of the people.” For the past three days, this has been all that his faithful, from cabinet ministers to Twitter trolls, have been saying.
The judiciary is “violent,” “obscene” and committing “daylight robbery” (Yair Netanyahu even likened them to the Illuminati), and it and its decisions should be ignored and swept away. In interviews, Likud lawmakers refused point-blank to commit to obeying the court’s rulings if they were not to their liking.
Hayut, who had wisely agreed in advance to televise the High Court’s hearings (as part of an ongoing experiment), tried to inject some levity with references to reality television shows, and affected a more genial approach than her usually severe judicial temperament. Most of her colleagues on the bench also tried to make some quips of their own, especially to balance their attitudes toward the petitioners and the lawyers defending Netanyahu and Gantz.
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Justice Isaac Amit admonished one of the petitioners, saying “the gentleman wants an injunction to make the world a better place. That’s not among our remedies.” But the judicial bonhomie could barely hide the fact that the justices knew they are fighting for their very legitimacy to take the powerful to task.
Esther Hayut is not the real target of the prime minister’s proxies. As Israel’s most senior judge, she is just a totem antagonist for Netanyahu’s mouthpieces. Hayut doesn’t threaten him right now, but another judge in Jerusalem, several rungs down the hierarchy, does. Hayut is standing in for District Court Judge Rivka Friedman-Feldman, who is to preside over the court in which Netanyahu’s bribery, fraud and breach of trust case is set to finally begin in three weeks. And Netanyahu’s argument, even during Monday night’s coronavirus briefing, that “a majority of the nation voted for me” (a lie, since 51 percent of Israeli voters cast their ballot for parties that were then committed to not joining a Netanyahu governing coalition) will soon be utilized to justify his not being put on trial altogether.
Friedman-Feldman, a no-nonsense judge who has a track record of going hard on venal politicians, will soon be holding Netanyahu’s fate in her hands – so her power to do so must be delegitimized now. Before she gets a chance to establish herself as a household name and, who knows, even endear herself to the public, Netanyahu has to brand her as another tool of the deep state.
The groundwork is being laid, and Hayut will soon morph into Friedman-Feldman in the feverish imaginings of Netanyahu’s defenders. It is open season on female, sixty-something judges who think they have the right to sit in judgment on prime ministers.