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The Tragic Blunder of the High Court Justices

Nehemia Shtrasler
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The High Court of Justice
The High Court of JusticeCredit: Oren Ben Hakoon
Nehemia Shtrasler

Let’s say you were going to sell your car. Would it ever occur to you to give it to the first person who shows interest, transfer ownership, and then say, “Come by when you get a chance and we’ll talk about the price?” No one would do that, you’d say. I’m not so sure.

Following the signing of the last coalition agreement in April 2020 between Benjamin Netanyahu and Benny Gantz, several petitions were submitted to the High Court of Justice against giving Netanyahu the mandate to form a government. An expanded panel of 11 High Court Justices deliberated the issue and on May 6 dismissed all the petitions – unanimously.

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Even then it smelled bad. Unanimously? Really? Not a single justice thought otherwise? No one was willing to buck the majority? This unanimity reminded me of what is said in the Talmud of the small Sanhedrin (of 23 judges) – if it reaches a unanimous verdict in a capital case the accused goes free. To that extent.

In our case, the justices clearly didn’t feel comfortable with their verdict. This is evident by the fact that they demanded Netanyahu do something unusual: Sign a conflict-of-interest agreement that would not allow him to intervene in the law enforcement system – not to be involved in the appointment of the police commissioner, the state prosecutor, the attorney general, members of the Judicial Appointments Committee and so on. The justices essentially said that they were willing to swallow hard and allow Netanyahu to form a government despite the serious charges pending against him, on the condition that there be an agreement that would deter him from his primary objective: delaying and then cancelling his trial.

Netanyahu’s lawyers agreed to the condition and Attorney General Avichai Mendelblit started to prepare the agreement. He started and never finished. He prepared it and they objected. He changed things and they complained. He wrote things and they erased them. Thus six months passed, until in November Netanyahu declared that he doesn’t recognize Mendelblit’s authority to decide anything about his conflicts of interest. Who can decide? Why, Netanyahu himself.

Last Thursday the High Court held a hearing on an appeal of the May 2020 decision. The appeal was rejected, but during the hearing it emerged that although nine months had passed, defendant Netanyahu was still refusing to sign a conflict-of-interest agreement, even in its new, reduced, diluted, weakened form, which omitted several important clauses. Mendelblit had simply yielded to the pressure.

Give me one logical reason why 11 justices didn’t do the obvious last May and say, “We are putting off a decision for 14 days, during which the defendant must sign a conflict-of-interest agreement, and then we will rule based on the quality of that agreement.” If they had done that, Netanyahu would have run to sign Mendelblit’s first and correct proposal, because he’d have realized that the court could still disqualify him from forming a government. But they did the opposite – first they gave him the car, then they transferred ownership, and now they are begging him to pay up.

Since I assume that our High Court justices are neither stupid nor naïve, I can only conclude that they are a-f-r-a-i-d. Netanyahu has succeeded in intimidating them into paralysis.

The more they try to accommodate him (with postponements and rulings) he tramples on them further, and they simply cannot withstand the pressure. They’ve long ago abandoned the offense, and are solely focused on defense. They are standing on the goal line trying to prevent the goal. But everyone knows that when you’re in the bunker for the entire game, in the end the stronghold falls. It’s time for the justices to wake up.

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