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The Netanyahu Decision, the High Court’s Moment of Truth

Ehud Barak
Ehud Barak
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Israel's High Court of Justice, sitting in Jerusalem, April 16, 2020.
Israel's High Court of Justice, sitting in Jerusalem, April 16, 2020. Credit: Amit Shabi
Ehud Barak
Ehud Barak

A man charged with bribery cannot serve as a minister, let alone form a government, just as a pedophile cannot be employed as a teacher, let alone as a school principal. This is a simple truth, common sense, which come to us from the depth of Jewish heritage, from the Ten Commandments and the Prophet Amos, from the Book of Lamentations and Pirkei Avot. It is also a truth that is at the heart of every modern solidary society and the values of our Declaration of Independence.

This truth will be put to the test in the next few days, at the center of an unprecedented drama in our history. The High Court of Justice is facing its most important verdict ever, one that will determine Israel’s fate as a Jewish state in the spirit of the Declaration of Independence and the prophets’ vision – to be or not to be.

Israel’s single-use coalition will serve Trump and protect BibiCredit: Haaretz

It is a decision that will also determine the High Court of Justice’s fate – to be or not to be. The absence of decision, or a decision focusing on the letter of the law and suppressing the essence of the threat hanging over the country we love, will return to hurt Israel and the High Court like a boomerang.

We are there, at the very moment of truth that will determine everything. The High Court is sovereign and we must not interfere with its procedures or considerations. We can only put our confidence in it and hope for the best. But this cannot blind the sober among us from seeing where this is all heading. The sheer number of petitions and legal remedies requested by the petitioners dilute the force of the demand for a clear-cut verdict.

The mishmash presented to the High Court consists of three issues. There is the fundamental issue, namely, can a man indicted for bribery form a government in Israel or not? Within this is the issue of the legality of the “stinking agreement” between Benjamin Netanyahu and Kahol Lavan’s Benny Gantz and Gabi Ashkenazi. Finally there’s the question of specific contortions of the law such as the so-called “Norwegian Law” and the like.

The hands of Prime Minister Benjamin Netanyahu, March 8, 2020.Credit: Oded Balilty,AP

Of the three, the fundamental issue alone is critical to our future. Because if the court delivers a verdict, both simple and difficult, whereby an indicted man cannot form a government there isn’t much Netanyahu can do. If he chooses to hold another election despite the court’s ruling that he cannot form a government, he will be defeated, because I believe at least a third of Likud voters won’t back him if it means a head-on collision with the core values of the rule of law. It is also likely that in this case sober Likud forces will rise and place another Likud figure at the party’s helm.

This is the High Court’s moment of truth. The moment in which character is just as important a factor as judicial pedantry. I have no doubt what Meir Shamgar or Aharon Barak, Moshe Landau or Dorit Beinisch would have ruled at such a moment. The High Court can make its name for generations in one moment’s brave decision, at the end of the hearing, however long it takes.

On the other hand, should the court opt for legalistic niceties, irrespective under what intricate pretexts, it too will be crushed further down the road by Netanyahu, Yariv Levin, Amir Ohana and their buddies. It will be said in retrospect that they brought about their own demise.

A sneak peak into what will befall the Supreme Court justices can be seen in what is now happening to Avichai Mendelblit. The attorney general mistakenly thought the many allowances and “celebrity discounts” he gave the defendant and his wife or the fact that he decided to indict Netanyahu with “a heavy heart”would earn him some credit. All this is baloney.

From the moment he flinched and halted the momentum of the investigations into the shares Netanyahu bought in a company controlled by his cousin, the false reports to the state comptroller, and other escapades, it was clear he would be thrown under the bus at the first opportunity.

That’s life. The brave can die only once. The coward dies countless times.

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