Analysis

High Court Ruling Gives Netanyahu Super-status, Irreversibly Harming Equality

Allowing the prime minister to remain in power despite the corruption charges against him means those who have dared to stand against him will keep coming under attack – including the court itself

Gidi Weitz
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Protesters watch the High Court hearing streamed live in Jerusalem, May 3, 2020.
Protesters watch the High Court hearing streamed live in Jerusalem, May 3, 2020.Credit: Ohad Zwigenberg
Gidi Weitz

The reality from today on in Israel – and with the stamp of approval of the High Court of Justice – is that every elected official from the mayor of a tiny village near the Dead Sea to the minister of space can be removed from office if serious criminal charges are filed against them, but a prime minister in the same situation remains at the wheel of government, with all the power that this entails. And he can continue to send his loyal envoys to harm and weaken those who have dared investigate him, indict and try him.

The Supreme Court justices’ decision not to disarm the most significant explosive device that the court petitioners laid, and for now to only deal with cosmetic fixes to the coalition agreement, is a demonstration of the illusions embodied in the 2020 model of judicial review. At this week’s hearings, the justices hinted that they lacked a “hook” to attack or bypass the statutory provisions that permit a Knesset member charged with a crime to form a new government.

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One might cautiously assume that in a different political atmosphere, if they were faced with a similar case involving a less aggressive prime minister and without his regiments, one whose removal would not have necessarily led to a fourth round of elections – Ehud Olmert, for example – they might have found a formal legal hook to bring about such a change and adapt it to the norms that they subscribe to.

Three decades ago, when the Supreme Court ruled that Prime Minister Yitzhak Rabin had to dismiss the then – and current – interior minister, Arye Dery, following Dery’s bribery indictment, Supreme Court President Meir Shamgar wrote in his opinion that if Dery remained in his position “it would have far-reaching implications for the nature of the government in Israel, its good faith and its decency.” In that same ruling, Shamgar quoted Attorney General Yosef Harish, who said that Dery’s remaining in office as interior minister would raise a “suspicion of conflict of interest … primarily regarding the exercise of his judgment on matters at his ministry that touch on issues that are related to the suspicions against him.”

Israeli Prime Minister Benjamin Netanyahu addresses his supporters after first exit poll results for Israeli elections in Tel Aviv, Israel, March 2, 2020. Credit: Oded Balilty / AP

In the Supreme Court decision requiring the removal from office of mayors indicted on serious crimes, Supreme Court President Miriam Naor wrote that if such a step were not taken, “democratic principles in their entirety” would suffer critical harm. Today such high rhetoric is a dead letter.

Supreme Court President Esther Hayut’s ruling late Wednesday is based on the differences between the legal precedent that prevents mayors and cabinet ministers from serving after being indicted and the court’s decision to allow Netanyahu to continue at the country’s helm. It is indeed possible to provide formal legal explanations as to why Netanyahu’s case is different, but any child understands that the power to do harm wielded by a prime minister with an indictment hanging over his head is infinitely greater than that of an interior minister, mayor, deputy minister or municipal treasurer in the same situation.

In Netanyahu’s case, there is no need to engage in dark prophesies regarding the future. It is enough just to take a look at the present.

Fodder for the war machine

It is reasonable to assume that the justices saw how in recent weeks the prime minister of a caretaker government had managed, through the use of his effective justice minister, to appoint an acting state prosecutor who worked in turn to undermine the legitimacy of the attorney general – riffling through a closed criminal file involving the attorney general to find some fodder to satisfy the war machine.

The justices certainly noticed that Netanyahu was determined to keep the public security cabinet portfolio in the hands of one of his loyalists, and they also seemed to have understood that it was not just out of a sense of urgency to reform the traffic police or to put more police officers out on the streets.

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

What will Hayut tell herself on the day that it is announced that the investigator in Netanyahu’s cases, Koresh Bar-Nur, has left the police force because the public security minister refused to give him a promotion? Or that the new minister has established a committee to examine deficiencies in the national fraud unit of the police? Or that the police commissioner has appointed a puppet to head the investigations division?

What will she think when Netanyahu’s representative on the Judicial Appointments Committee is trying to head off the appointment of a candidate to the Supreme Court simply because in the past, the candidate recommended indicting the boss on accepting bribes? Or when the prime minister humiliates the attorney general at a cabinet meeting and ignores the attorney general’s directives just because he indicted the prime minister?

A prime minister on trial

One morning, in several months, Netanyahu will take a seat in a courtroom in front of prosecution witnesses. That evening, he will attend a security cabinet meeting, and until the wee hours of that night, he will consult with his lawyers. The following morning, he will get up to attend a cabinet meeting dealing with the police budget.

That’s what we will need to get used to – and it might be possible to get used to it. But such a situation has to be coherent and consistent, without double-talk or pretense.

After all, it’s unreasonable to think, if in another few months Attorney General Avichai Mendelblit files a new indictment against Interior Minister Dery for tax fraud, or against Health Minister Yaakov Litzman over conflicts of interest, that they would be forced to resign or be fired by Netanyahu.

It doesn’t make sense that mayors who are indicted but remain very popular with their voters – as was the case with Shlomo Lahiani in Bat Yam and Shimon Gapso in Upper Nazareth – aren’t allowed to continue in office, particularly when the local government statute provided that a mayor charged with a crime involving moral turpitude could only be removed from office after appeals are exhausted.

A woman takes part in a protest against Israeli Prime Minister Benjamin Netanyahu, seen on the poster, in Tel Aviv, Israel, April 19, 2020.Credit: Oded Balilty,AP

It might be possible to somehow understand the survival motive behind the Supreme Court’s ruling this week, but it’s much harder to digest the grievous harm that it is inflicting upon the principle of equality and the fact that it legitimizes the prime minister super-status.

Over the past several weeks, Netanyahu expected that the High Court “saints,” as he calls them, would take advantage of the opportunity to be rid of him. Now, after he received the green light from them to serve as a prime minister charged with bribery, he has something else buzzing around in his head: The opening that Hayut left near the end of her ruling for the petitioners to return to her courtroom for another round.

That’s after the legislative process is complete regarding coalition agreements between Netanyahu’s Likud and Kahol Lavan, which “raise considerable difficulties.” So even though Netanyahu received a major gesture from the justices around midnight Wednesday, don’t be surprised if the blitz against the High Court soon resumes.

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