Supreme Court President Esther Hayut provided a rare moment of levity, albeit cloaked in judicial seriousness, at Monday’s hearing on the legality of the coalition agreement between Likud and Kahol Lavan when she compared it to the trashy reality show “Married at First Sight.”
“First you get married, and then you court one another,” the honorable justice quipped. In response, the lawyer for Kahol Lavan, Shimon Baron, who was arguing his case at that point, offered his own comparison: “Politics is more like ‘Survivor.’”
Both are right, as they say, but there was also a third show, a drama program actually, whose presence had been hovering in the courtroom since the hearings began Sunday: “Prison Break.”
Some of the coalition agreement’s provisions at issue in court on Monday are designed to throw Benjamin Netanyahu a rope to escape the legal precedent of the Dery-Pinchasi case, which requires ordinary cabinet ministers who are charged with crimes to resign, but not the prime minister.
Of course, since he will be prime minister first under the rotation agreement, he is protected. But no less importantly, the coalition agreement gives him a way around the Dery-Pinchasi ruling after he yields the prime minister’s job to Kahol Lavan leader Benny Gantz by handing Netanyahu the fictional post of “alternate prime minister,” to which the Dery-Pinchasi precedent also wouldn’t apply.
The concept of “alternate prime minister” entirely distorts the Israeli system of government and subordinates our constitutional principles to the needs of two people: Netanyahu, who is spared being forced to resign and instead continues to receive the perks of office that are apparently as essential as oxygen to his family; and Benny Gantz, whose lack of confidence in the integrity and the intentions of his coalition partner when it comes to stepping down as prime minister required that he seek proper safeguards.
The provision in the coalition agreement that eliminates representation by a member of the Knesset opposition on the Judicial Appointments Committee is also not in service of any legal ideology. Instead it’s connected to the selection of the justices who might be called upon to hear a future appeal filed by defendant Netanyahu in his three corruption cases.
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A deep state conspiracy
In the current atmosphere, it was necessary to provide live broadcasts of the two days of Supreme Court hearings, when a large portion of the public is convinced that the Supreme Court justices are a gang of radical leftists and Jew-haters who are part of a broader deep state conspiracy. Such an attitude is the product of ongoing, venomous and malicious propaganda the offshoots of which originate at the Prime Minister’s Residence.
Anyone who watched the broadcasts saw 11 male and female justices in proceedings firmly and efficiently managed by Hayut. Her conduct was a model of common sense and logic and the protection of the standing of the opposition and adherence to legal principles. It was in such contrast to the blind hatred, ranting and ignorance displayed by pro-Bibi stalwarts of various kinds (including those who boast law degrees) or to the youngest inhabitant of the Prime Minister’s Residence.
In the course of the two days of hearings, only those whose surgical masks were totally covering their faces would have failed to discern the gun on the table in the form of the mafia-like threat issued by the prime minister’s associates: Either the court’s decision goes his way or there will be a fourth election.
It was no coincidence that on Sunday, after the first day of hearings, the Likud representatives dispatched to the evening news programs were cabinet members Miri Regev and David Amsalem and Knesset member Miki Zohar.
They are the people who more than anyone else represent contempt for the legal system and an unwillingness to recognize the concept of the supremacy of the law. None of the three were prepared to say that the government would respect the High Court’s ruling if it is not to the government’s liking.
And of course, let’s not forget Justice Minister Amir Ohana and his ridiculous motion to disqualify Justice Menachem Mazuz, due to a “conflict of interest,” from hearing the case involving the extension of the term of the acting state prosecutor. Mazuz obliterated the claim on Monday.
The prevailing view is that the 11 justices will not disqualify Netanyahu from forming a government, although they did make their views clear about the legal-constitutional distortions in some of the coalition agreement’s provisions. The lawyers for Netanyahu, Likud and Kahol Lavan agreed to inform the court by Tuesday afternoon regarding whether they are prepared to make necessary changes to the coalition agreement.
The new government will almost certainly not be sworn in this week. Whether it will be sworn in at all depends, as always, on what Netanyahu wants. The considerations guiding him were, are and always will be personal and legal. They will have nothing to do with the coronavirus pandemic or national unity. Instead what will guide him are survival and escape.