Judicial restraint – the moment of truth

Nearly half of all Israelis do not trust the Supreme Court. They attribute a left-wing bias to the Court and claim that it engages in extreme activism, in violation of the separation of powers. This is the forerunner of the “deep state” that aims to subvert the elected government.

For years, arguments against the “rule by lawyers” have been the raison d’etre of some politicians – and have been part of the Israeli soundtrack, with ever-increasing volume, for at least a generation.

Now we have reached the moment of truth for these charges. At the time of this writing (Wednesday) the verdict is still unknown, but we have witnessed the court proceedings, which were very telling:

The court is hearing arguments that touch on the Holy of Holies – the possibility of driving from office, for now and forever, the right wing’s great leader. The justices’ hands are hovering over the lever of the guillotine that could sever the prime minister’s (political) head. With the case being heard by an expanded panel of justices, only two of them labeled “conservative,” the stage is set for the final act of the conspiracy.

That denouement would be so simple to achieve. This is not a criminal trial, decided on the basis of evidence that is not controlled by the court, but rather a hearing to interpret the law and previous rulings, in which the outcome is completely in the hands of the justices. It is well known that new interpretations of the law are always possible. All that is required here is a preference for a specific interpretation of the terms that define eligibility to serve as prime minister – and the Netanyahu era will be over.

The ancient Greeks were aware of the convenient flexibility of interpretation. If he wishes, the interpreter can pull the wool over everyone’s eyes. This is why they made the god Hermes the patron of both thieves and interpreters – two professions that have much in common.

If the Supreme Court is truly power-hungry and the inveterate foe of the right wing, it now has a golden opportunity to wield its power to interpret the law and steal the elected representatives’ power.

BUT THE hearings that were broadcast this week highlight the vast gulf between the image and the reality, with regard both to how the hearings were conducted, and their content. The hearings, whose form is ceremonial, were run in strict accordance with the rules, with no exceptions. They gave all sides an equal opportunity to present their case, and conveyed cautious objectivity, restraint, and control of the proceedings. The parties to the case were armed with legal arguments that the justices dissected with analytical tools.

Whenever the pot threatened to boil over, Chief Justice Esther Hayut immediately poured on ice water to cool things off. If you compare this to Knesset debates, you might think that the two institutions, neighbors on Givat Ram, are actually located on different planets.

And from form to content: At every intersection of possible interpretations, the activist jurists went for the passive option. The attorney-general and the Knesset’s legal adviser – scornfully dismissed as “clerks” – argued skillfully and vigorously against operation of the guillotine. They insisted that the Court must not intervene in the considered judgment of the Knesset before there is a final conviction. Such intervention, they asserted, is admissible only in the rare instance of extreme un-reasonability, which is not the case here. This is activism?

The justices did not allow themselves to be dragged after the slogans resounding in the streets, to the effect that the failure to disqualify Netanyahu would in itself be the “destruction of Israeli democracy.” The chief justice said that such a statement is cheap populism that cannot be accepted. They clearly expressed the difficulty of finding some legal “hook” from which to hang the appellants’ argument.

It seems likely that the court will leave it to the Knesset to decide who will be prime minister. If so, is that how the “deep state” behaves?

MUCH THE same characterized the hearing on the coalition agreement. In response to the position taken by Attorney-General Avichai Mandelblit, the court hinted that at the present time, it would not rule on the constitutionality of the vast majority of the clauses in the agreement. Although it might do so after the agreement has been anchored in legislation, with regard to the amendment of the Basic Law, it is likely that the court will refrain from vetting its constitutionality after it is passed. This means that the decision not to invalidate sections of the coalition agreement now gives a de facto green light to the modifications of the system that it provides for.

The spirit of the justices’ remarks and their ultimate decision conveyed a conservative restraint about wielding their power, in sharp contrast to the charges constantly leveled against the court.

We were treated to a fascinating scene: a group portrait of 11 men and women, their faces covered by masks, vaguely echoing the goddess of justice with the blindfold over her eyes, sitting in judgment with professional objectivity as they decide the fate of a politician who is eager to erode their authority and is leading a carefully orchestrated campaign to undermine the legitimacy of the rule of the law which they are responsible for overseeing. Can this historic moment reshape the relationship between politics and the law in Israel?

The writer is a professor of law at Bar-Ilan University and a senior fellow of the Israel Democracy Institute.