After the High Court of Justice denied a petition demanding that Benjamin Netanyahu be barred from forming a government as well as petitions seeking to declare the prime minister incapacitated, the court is erasing another boundary between it and the executive branch. It loudly warned that if a justice minister were not appointed within 48 hours, the court “would itself discuss the matter.” The ultimatum was issued Sunday, 48 hours have passed, Netanyahu requested a two-day extension Tuesday and there’s still no justice minister. Netanyahu generously left the court a note: “I’ll be right back.”
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And back he came. With sleight of hand from his bag of tricks, he pulled out a rubber doll in the shape of Ofir Akunis, inflating it and resuscitating Caligula’s horse. He will probably present this abomination to the High Court on a disposable platter. There is a close connection between the question of Netanyahu’s possible incapacitation and his refusal to comply with the court’s instructions. He realized not only that he no longer has to comply with its rulings – he has held it hostage. As he has done vis-a-vis Hamas and Hezbollah, Netanyahu has created a balance of terror with the justices: encouraging legislation enabling the Knesset to overrule the High Court; calling the High Court the preserve of a white, leftist elite; shoving the court into the garbage disposal that is operated from the prime minister’s Balfour Street home. All of these have turned the justices into a frightened group whose juridical considerations are dictated out of fear for the judicial branch’s independence in the future.
If the High Court is forced to decide on next justice minister, this would contradict its determination that there is no legal impediment to Netanyahu’s being prime minister: A prime minister who is unable or unwilling to appoint a cabinet member, or who makes a mockery of the law requiring him to do so, appoint such a minister, is a prime minister who is incompetent. Alternatively, the court’s interference in the appointment of a justice minister, who is also in charge of the court’s conduct, is the greatest gift the court could give Netanyahu. It will give him definitive proof that the court not only made itself a legislative branch, as Netanyahu and his minions while, but also trespasses on the jurisdiction of the executive branch, imposes political decisions on its head and disrupts the balance among the three branches. In such circumstances, Netanyahu has no choice but to step into the breach and block the High Court, in order to save Israeli democracy from destruction at the hands of its justices. Such a court must not be obeyed. The result is that just as he has diminished the position of the attorney general, redefining it as that of an adviser whose advice is not binding, in Netanyahu’s eyes the High Court has become nothing more than a commentator.
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This brings us back to the issue of Netanyahu’s incapacitation. The term is wrongly perceived as the inability to perform one’s duties due to physical or cognitive impairment. Or, as the court ruled in a petition against the continuation in office of Ehud Olmert in 2008, “if it later transpires that the prime minister’s conduct does not permit a proper criminal investigation against him.”
From a legal standpoint, the court was right to deny the petitions regarding Netanyahu’s incapacitation: Terrorizing the judicial establishment in general and the High Court in particular, and disregarding its orders, are insufficient cause for incapacitation. They are, however, acts of terror, in the most fundamental sense of this term: using violence or the threat of violence to achieve political aims. It is not the fact that he is a criminal defendant, nor his having to divide his time between the courthouse and managing affairs of state, that should determine whether or not to declare Netanyahu incapacitated. Rather, it is the public danger he constitutes and his conspiring to topple state institutions. Ordinary criminal defendants who behaved as Netanyahu has would have long since been ordered to remain in custody for the duration of legal proceedings, lest they obstruct the investigation and trial, and for disobeying a court order. But we can’t complain to Netanyahu about it, when the court itself gives him license to harm it.