In its hearing of a petition against the appointment of an Knesset Member under indictment to form a government, Israel's High Court of Justice (HCJ) took a clear position: it is not the HCJ's job to make a pre-ruling on future decisions that the president may have to make.
Throughout most of the hearing, Supreme Court President Justice Esther Hayut, Justice Hanan Melcer, and Justice Uzi Vogelman more than hinted that they did not intend to express judicial criticism of the state president's authority to give the job of forming a government to a specific MK (because he was accused of a crime) before the president makes such a decision, at a stage when it is by no means certain that such a decision will ever be made, and when we do not know what the election results will be.
Avoidance of interference ahead of time in the president's authority, which the justices more than hinted today, is not irregular, and should come as no surprise. The justices are always inclined to dismiss petitions that are essentially theoretical on the grounds that they are premature, and in order to avoid involving themselves unnecessarily in theoretical discussions.
For example, in July 2015, the HCJ dismissed a petition seeking to extend the public hearing on the gas plan. They ruled that there was no justification for intervention by HCJ at this stage, "in view of the proceedings (in the same matter) scheduled to take place in the Knesset Economic Affairs Committee."
The justices' emerging stance is not merely legally correct; it is also dictated by the circumstances. Public trust in the judicial system has already reached a low point. A HCJ ruling on this sensitive petition before an election would have resulted in bitter attacks against it. Such an attack began even before the justices heard the preliminary question of whether to hear the petition.
Statements against Hayut
In a "Globes" article last week, Gil Bringer attacked Hayut's decision to include only three justices in the hearing of the petition against Netanyahu's staying in office as prime minister under indictment. "The upcoming elections were to have concerned a single question: given the indictment against him, has the Netanyahu era come to an end? The hearing that Hayut is about to lead, however, may render this question superfluous. The public will not decide this question; the justices will," Bringer wrote, adding, "It could have been expected that a large number of justices would participate in a hearing of such as dramatic question, but Hayut nevertheless ruled that only three justices are enough to make the decision."
Bringer went even further: "This is not merely callous contempt expressed by the Court towards the type of decision that it is being asked to make, and it is not only the dramatic effect that its decision will have on the most elementary right of the public in a democracy - to choose who will lead its country. This small judicial panel brings into question the integrity of the panel's selection."
Today, however, it emerged that the assumption by Bringer and others who thought as he did - that Hayut wanted to make a dramatic decision at this stage that would affect the fate of the elections, and wanted it so much that she selected justices for the panel to hear the petition that believed as she did - appears to be fundamentally mistaken.
Attorney General Dr. Avichai Mandelblit was also shown to be right in today's HCJ hearing. Mandelblit was criticized for not giving an opinion on the issue involved in the petition. Today's hearing, however, made it clear that Mandelblit had acted very wisely. Had the Attorney General written an opinion expressing his opinion on the matter in question, followed by a ruling by HCJ that the petition was premature, his status would have been severely damaged. Mandelblit avoided this pitfall by passing the hot potato to HCJ.
The public needs a preliminary ruling
Still, it must be said that HCJ's predictable sidestepping at this stage of the question of the status of an MK serving under indictment incurs a painful price. This is always the case. Difficult cases produce bad judicial rulings, and in this difficult case of a prime minister serving under indictment running again for his position, any decision made or not made will have undesirable consequences.
Imagine that the Likud, with Netanyahu at the head, wins the elections, and the president appoints Netanyahu to form a government. The theoretical question will then become a practical one, and HCJ will have to hear it, and this time make a ruling. In such a situation, a ruling by HCJ that Netanyahu cannot be appointed to form a government will be even more dramatic than today's ruling.
Therefore, with all due respect to the state president and his authority, it is the general public that most needs a pre-ruling - a preliminary decision clarifying Netanyahu's status. The public is going into a third consecutive election campaign without any tools to understand the full consequences of these elections.
Published by Globes, Israel business news - en.globes.co.il - on December 31, 2019
© Copyright of Globes Publisher Itonut (1983) Ltd. 2019