(May 11, 2020 / JNS) Don’t be mad at me if I don’t join the chorus of cheers for Israel’s High Court of Justice, despite my satisfaction with its ruling. Yes, from a personal perspective I welcomed the 11-0 unanimous ruling reached last week by the panel of justices. The issue is that this ruling was the result of a game that should never have been played in the first place—and above all else, there’s no guarantee this is the final result.
The game was unnecessary because the law is clear and unambiguous: Israeli Prime Minister Benjamin Netanyahu, despite the three indictments against him, which he and his supporters would gladly discount, can form a government.
There was no need to involve the High Court of Justice in this matter, which is exactly what the court determined. Moreover, the court was asked to examine the coalition agreement, and also the legislation on the matter which is still pending. And here the court said: We won’t review the legislation at this point before it is completed.
This whole charade should have been avoided, despite the positive ratings it produced—and personally, I prefer a good legal debate over reality TV, especially with the outcome being as it was. The unanimous ruling proves just how extraneous this discussion was. The court’s purpose is to issue legal rulings, not hand out grades.
There was cause for concern, however, because we know who the players are. And we mustn’t ignore what was written in their explanations, which is similar to what they almost always write and which leaves the door half open for them to intervene once legislation is ratified. A type of gun, symbolic of course, that one leaves on the table for emphasis.
So allow me to forgo the adulation, first of all because in principle the court still places itself above Israel’s Basic Laws. Even in the polite game of ping-pong between Chief Justice Esther Hayut and the prime minister’s attorney over “everything being justiciable,” it’s rather clear that justice is on the side of the attorney. Michael Ravilo, Netanyahu’s attorney, did well to avoid butting heads with Hayut, and even though it doesn’t appear in the panel’s final ruling it will most certainly appear in the professional literature. Let us recall the philosophy of former Chief Justice Aharon Barak: “The law has no limits. The world is filled with law.”
Ravilo was right, Hayut was wrong.
The world is filled with law—and it’s also filled with politics: The judges showed great concern for the opposition when they convened to discuss the formation of Knesset committees. It’s interesting; a little less than two months ago, when Knesset Speaker Yuli Edelstein insisted that Knesset committees be established on the basis of long-agreed protocols in place between the opposition and coalition and according to the Knesset’s statutes, we didn’t see any protests when a coalition of 61 MKs, more or less, trampled the apparent opposition and left it without any committee chairmanships.
We need to understand that we are 500 days into a political haze of uncertainty. It’s also obvious that everything starts and ends with “yes Netanyahu” or “no Netanyahu.” But with all due respect, the desire of the High Court’s judges to entrench their power, or more accurately their superiority, first emerged in the 1990s, well before Netanyahu’s first term in office.
Back then the judges had waded into murky legal waters that former Chief Justice Moshe Landau had warned against. We certainly remember the immortal words of Yitzhak Rabin, whose legacy we all respect, particularly on the left: “Without the High Court of Justice and without B’Tselem.”
One day, once the Netanyahu era is over, it could be Blue and White’s Benny Gantz or Gabby Ashkenazi in the court’s crosshairs. Who knows, maybe the final push to legislate overriding powers for the Knesset will actually come from one of them. And perhaps a final word on how the right and left feel about the High Court. Did anyone really read what the left-wing pundits had to say last Thursday?
Boaz Bismuth is editor in chief of Israel Hayom.
This is an edited version of an article that first appeared in Israel Hayom.
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