Opinion |

High Court Response: First Let Democracy Die, Then Discuss Doing Something About It

A photo of Dr. Zvi Bar'el.
Zvi Bar'el
A panel of judges of the Israeli Supreme Court address a discussion on a petition asking whether Netanyahu can legally form a government, in Jerusalem, on May 4, 2020.
A panel of judges of the Israeli Supreme Court address a discussion on a petition asking whether Netanyahu can legally form a government, in Jerusalem, on May 4, 2020.Credit: POOL/ REUTERS
A photo of Dr. Zvi Bar'el.
Zvi Bar'el

It’s clear from the pointed questions of the High Court justices that the heavy stench emanating from the proposed formation of a government by a criminal defendant and the moral corruption which underlies the coalition agreement have come to a grinding halt in the face of legal arguments and trick questions, namely: Is there anything here that contravenes the law? Is there anything here that harms the essence of democracy?

The answer given by Supreme Court President Esther Hayut was crystal clear: “The anticipated outcome of this agreement, even at this point, as things stand, does not reach the level of a democracy committing suicide, which makes our intervention unwarranted.”

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What is democracy and when is it deemed to be on the brink of suicide? The court offers no diagnosis, as if these things were self-evident.

Although the court has not yet rendered its ruling on both sets of petitions, the barrier it has placed between morality and law has turned the justices into law engineers. Their only role is to determine whether political deals, which entail future legislation, meet the standards set by past lawmakers.

Israeli protesters watch a live broadcast of a panel of 11 justices in the highly anticipated session in Israel's Supreme Court in Jerusalem, on Sunday, May 3, 2020.Credit: Tsafrir Abayov,AP

That is so even if the new anticipated laws, whose legislation depends on their ruling, could violate the sense of justice and decency held by the majority of this country’s citizens, namely, all those who did not want Benjamin Netanyahu as this country’s leader.

“Are we supposed to pass criticism over a law that might be legislated?” wondered Justice Menachem Mazuz.

“What do they expect of us, that at this juncture, when we don’t know the final outcome of the proposed legislation, we give our judicial advice? Why not wait for the end of the legislative process?” asked Justice Noam Sohlberg.

As if the blueprint of the crooked political structure that will arise from this miserable legislation is insufficiently clear, and its disastrous results need any proof.

What would we say about an engineer who said that the calculations regarding building materials are correct from the perspective of physics, but that it would be best to wait for the building to be approved by a regional planning and construction committee before raising any objections? What should we say to democracy? First commit suicide, then we’ll determine the cause of death.

The court, however, is correctly not limiting its examination to the narrow scope of these issues. It is willing to assume the burden of a taking a wide view, which demands the examination of the impact of this legislation and this coalition agreement on the nature of Israel’s democracy. But here it places itself in a bind.

While Justice Hayut believes that the coalition circus does not meet the standards of a suicidal democracy, Justice Mezuz openly states to the petitioners that “your entire argument relates to a public, political context. It’s a legitimate one, but how is it related to judicial review? You ask whether we find one clause or another in the coalition agreement seemly – that’s irrelevant. You’re not attacking any normative change in the law.

Mezuz may be right from a legal perspective, but the two honorable judges must decide whether the debate is about the essence of democracy, which is supposed to express the wishes of the public, its intentions when it cast its vote and its hopes regarding the nature of our democracy – or whether they should only examine the deviation of the proposed legislation from preceding norms, norms which could not imagine that a criminally indicted person could be the country’s leader.

When the court sets the bar of a suicidal democracy as the yardstick for considering the scope ofwhat is permissible legislation, drawing a clear line between what is moral and what is legal, as if we were talking about oil and water, it absolves itself of the responsibility to perform a judicial review of any immoral and heinous legislation.

If the High Court of Justice approves the legislation that the coalition agreement entails, the Knesset will no longer need to pass laws that override the court, as have been proposed. The prime minister and his toxin-spewing associates will be able to desist from their vilification of the court. They will receive a new democracy, tailor-made for them. But this will be completely legal. All that will be missing is the serological test that determines that we’re already clear of corruption antibodies.

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