When Israel's High Court of Justice Is Afraid of the 'Street'

The High Court is avoiding ruling on something that is self-evident: It is inconceivable that Netanyahu, facing three serious indictments, should be able to form a government

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High Court Justices Vogelman, Hayut and Melcer, December 29, 2019.
High Court Justices Vogelman, Hayut and Melcer hear a case, December 29, 2019.Credit: Ohad Zwigenberg
Tzvia Greenfield
Tzvia Greenfield

The political attacks of Prime Minister Benjamin Netanyahu’s supporters on the High Court of Justice and the legal system are aimed at deterring the judicial branch from fulfilling its democratic role.

These attacks make it very difficult for those who think the decision by the High Court not to rule now on whether someone under indictment is qualified to be prime minister was fearful and improper. Every additional criticism of High Court rulings adds fuel to the anti-judicial demagoguery coming from that particularly dangerous group of right-wing activists, whose aim is to rescue Netanyahu from his troubles.

But the justices’ explanation, that the issue is theoretical and it’s too early to deal with the question, raises concerns that the High Court isn’t just evading responsibility, but will inadvertently make the political and legal crises worse.

The High Court of Justice is avoiding a decision on something that is self-evident: It is inconceivable that someone facing three serious indictments should be a candidate to form a government. It thus has essentially avoided heading off an almost certain disaster in advance. Leaving the issue open paves the way for the terrifying claim that “only the people will decide” if the prime minister is a criminal. It could also mean that “only the people will decide” if the prime minister can simply do away with any normative democratic criterion that he chooses.

To a great degree that is already the situation. Netanyahu does almost anything he wants, and a confused democracy doesn’t know how to deal with a person who still holds much authority but refuses to obey basic democratic and humanitarian rules. Everyone sees the slide toward a proto-dictatorship, but only the High Court will hope for the best and refuse to rule on what should be obvious?

One assumes that the High Court justices are hoping that Netanyahu will be trounced in the election, and thus “the people” will spare them from making the necessary ruling that they fear to make. But what if the election results are not clear-cut? Or worse, what if Netanyahu comes out on top – will it then be easier for the justices to have their say?

It seems they’d prefer that either the president or the attorney general pull their chestnuts out of the fire. But Reuven Rivlin and to a great degree Avichai Mendelblit are figures with a clear political background. They were born and bred in Likud. Why demand from them what the High Court is afraid to do?

One must admire Mendelblit for finally deciding to file indictments against the prime minister, including a charge of bribery. It is known that he sought any way to avoid this, and it’s clear that he realized he had no choice. The question is why can’t High Court justices be at least as brave as he is? What are they afraid of? Isn’t dealing with times of major crisis like this what they’re there for?

It of course goes without saying that Netanyahu has the right to wage a legal battle to prove his innocence, but so long as he is under indictment, he cannot do this from the prime minister’s chair, or as a candidate for prime minister.

The High Court of Justice should have clarified this basic, logical understanding without hesitating and without evading the issue on grounds that it’s theoretical and abstract. If God forbid this blunder leads to Netanyahu’s adherents opposing any effort to bring him to trial – or to reject the election results if they’re not to their liking – Israeli society will pay the price of this hesitation.

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