It took less than a day for the enemies of democracy to rally. Even before the official election results were published, the cat was out of the bag. Former Supreme Court Justice Eliyahu Matsa explained that he believes Israelis who voted for Prime Minister Benjamin Netanyahu "simply don't understand the gravity of the situation and the responsibility their vote carries."
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The disdain for the voters' will does not end with statements. As with any act of force, you need a commando unit to set out to thwart democracy. That role was assumed this time by the Movement for Quality Government in Israel who, in order to block Netanyahu from forming a government, petitioned the High Court of Justice, demanding it issue interim orders that would suspend the powers of parliament, suspend the free vote of Knesset members and the independent discretion of the president.
Basic Law: The President of the State clearly determines that the president is immune from any judicial activity. One cannot file a court petition against the president, and his authority concerning his discretion to give a mandate for forming a government is set in the foundations of the democratic regime.
That did not stop the Movement for Quality Government in Israel from demanding that the High Court of Justice instruct the legal adviser to the president to issue a binding opinion that would prohibit the president from fulfilling the will of the people. They are also demanding the court prohibit all Knesset factions from recommending Netanyahu form a government.
If the court has the authority to decide, directly or indirectly, who will be prime minister, what is the point of elections? In the past, there were many non-democratic countries in the world that did not even bother with the facade of allowing citizens to participate in governing.
That has not been the case now for many years. Non-democratic countries hold elections, but with the outcome dictated in advance. Non-democratic countries have a house of representatives and vote on various issues, but with the decisions in effect determined elsewhere.
From grounds of reasonable doubt to striking down laws, the High Court of Justice has over the years taken away quite a few powers from elected officials. But the holiest of holies of democracy – the formation of a government – was still left to the public and the people it elected. Even the use of the religious concept of "Ma'aseh Merkavah" ("the work of the chariot" from the Book of Ezekiel) as a moniker for the craft of forming a coalition, was supposed to give, albeit facetiously, a halo of holiness to the will of the people, of the sovereign.
The provisions of the Basic Law: The Government are very clear. It sets clear guidelines as how to conduct a trial of a prime minister who commenced serving while a criminal procedure is taking place against him.
Unfortunately, we cannot expect our court to reject these petitions. There is a real concern that the court will give itself the right to vote twice, as Prof. Alan Dershowitz says. First, when every judge votes at the polling booth near their home, and second when they vote in the Supreme Court and grab true power.
Elected officials from the Left and Right must unite against these practices and say to the High Court: No more. If members of parliament from all factions will be partners to the arrogant attitude expressed by former Justice Matsa, which disparages the people and its choices, they will have no legitimacy in the future to ask for the people's trust. They will be severing the branch they are sitting on. In fact, they will be severing the branch we all sit on, and that upon which sits the Jewish and democratic state of Israel as well.
Simcha Rothman is the legal counsel for the Movement for Governability and Democracy.
