After over 1.3 million people cast ballots that read "The Likud under Netanyahu" about two months ago, and hundreds of thousands more voted for parties that declared that Prime Minister Benjamin Netanyahu was their candidate for prime minister, the question of whether their choice was legitimate or not will be debated by High Court justices on Sunday.
The day after that, justices on the Supreme Court will stick their fingers even deeper in the political pie and discuss the coalition agreements between Likud and Blue and White. The High Court of Justice has always played a supporting role in politics, and contributes to the inherent tension between the branches of government. But under Chief Justice Esther Hayut, the High Court is taking a starring role. If it doesn't stop, it will become a one-man show.
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The High Court duped the public into giving it the ability to reject laws passed by the Knesset, over the staunch objection of one of the senior justices at the time, the late Mishael Cheshin. In legalistic gymnastics, then-Chief Justice Aharon Barak explained that there was a difference between the Knesset as the legislative branch and the Knesset as the authority that formulates the future constitution. The basic laws, Barak explained, were part of the Knesset's work as the body responsible for constitutional law, and could thereby be used to cancel out ordinary legislation.
And now, wonder of wonders, the High Court under Hayut can reject basic laws passed by the body responsible for passing them. Why? Because. Because it can, without any serious grounds or explanation. The High Court debated the Nation-State Law. Changes that Blue and White and the Likud want to make to other basic laws will go through the High Court. If one of the justices were to suggest to his or her colleagues that the petitions should be rejected due to a lack of authority to handle them, those present would burst out laughing. Now the justices are discussing overriding the will of the people.
When there was a need to approve the Balad party's election bid, despite a decision by the Central Elections Committee, the justices explained that in a democratic country, elections were sacred. Now, in an attempt to disqualify Netanyahu from serving as prime minister, that sacred status has somewhat dimmed. It doesn't matter what the people said, only what the judges say. Hayut and the rest of her pals knew that their decision to discuss petitions against giving Netanyahu the mandate to form a government would encounter harsh public opposition. The petitions will be discussed by the broadest panel we have seen in years. On Sunday, 11 judges who are above the people will face off against 1.3 million rabble.
When we see the new government that is in the process of being formed, we realize that it will not bring us the correction we long for. The High Court will continue to run wild, and the other two branches of government will stay silent.
On Monday, the High Court is slated to discuss the coalition agreements, and many think that the Likud-Blue and White deal won't survive the discussion intact. The best case scenario is that both sides will be forced to reopen negotiations to resolve a number of small changes the judges will make. Other forecasts predict that the judges will punch holes in the deal so large that it won't be able to go ahead at all.
Most of the legislative work needed to work out a deal before the new government is sworn in is intended to ensure that the rotation for prime minister takes place a year and a half from now. Blue and White leader Benny Gantz and Netanyahu's lack of faith in each other forced them entrap the system of government so they could work together. That is not a great start for a new government, but since the two, between them, hold a clear parliamentary majority, there shouldn't be anything that stops them from using it to re-engineer the Knesset, other than the High Court, of course.
Even though Netanyahu supports reforms to the Supreme Court's authority and Gantz has sworn to protect it, the decision that results from Monday's discussion will determine the fate of the latter. If the coalition deal is cancelled and cannot be fixed, Gantz will face a dilemma -- to forgo everything and allow Netanyahu to lead the way to either a fourth election or a different kind of government, or to depend solely on Netanyahu's word that he will honor the deal and hand over power to Gantz when the time comes.
There are plenty of political actors who think that Netanyahu, in his heart of hearts, wants the High Court to blow up the agreement, and is even preparing for them to do just that. The prime minister is performing better in polls than he has at any time in the past year and a half, so he might prefer to hold an election. And before an election is held, additional avenues that would allow him to form a government in the current Knesset might open up.
Yesh Atid leader Yair Lapid is convinced that this is what's going on. This week, he made waves when he informed Netanyahu that if he wanted to cancel the law for a rotating premiership before Gantz's turn came up, he would vote with him for an election. The Left attacked Lapid, who was exposed as someone so motivated by hatred and vengeance for his former partner that he was willing to form an alliance with his bitterest enemy and allow him to stay in power despite all his promises in the last election campaign.
How is Lapid any different from Gantz, people asked. He attacks Gantz for allowing Netanyahu to stay in power, and then does the same thing himself.
But Lapid has a very different explanation for his actions. He opposes Netanyahu staying in power and opposes the changes to the law that are now being proposed. Therefore, he says, of course we'll support any move that leads to an election, even if the move is made by Netanyahu.
But as surprising as Lapid's announcement was, the response from Yisrael Beytenu leader Avigdor Lieberman was even more astonishing. He tore into Lapid. Until now, Lapid and Lieberman were considered the political pair most in lockstep, and many believed that the two had fully cooperated on all their gambits in the last three elections, including the absolute refusal to join a government under Netanyahu and the split in Blue and White. Now it turns out that these ideas might have been a little exaggerated, because if they had planned everything, Lieberman wouldn't have turned on Lapid publicly the way he did.
Lapid thinks that Gantz made the mistake of his life when he tied his fate to Netanyahu, who Lapid believes will never allow Gantz to serve as prime minister, no matter what agreements and laws Gantz might try to put in place. He thinks that political deals can always be violated, and Gantz is too green to understand that.
The coronavirus crisis could have been another opportunity for Israel to free its fallen soldiers and captive civilians being held in the Gaza Strip, but like so many earlier opportunities, it seems that Israel insisted on missing this one, as well. Unlike the prisoner exchange deals for Gilad Schalit or other captives, Israel doesn't have to free terrorists or "trade" in their remains, or take military action or conduct a heroic operation. It only needs to insist on its moral and legal right to use every means at its disposal, and there are plenty.
Israel has missed chances for help from the UN, which brokered the cease-fire in which Lt. Hadar Goldin and Staff Sgt. Oron Shaul were killed, in demanding that countries honor their own laws and not do business with Hamas as long as it refuses to return the Israeli soldiers and civilians, or make the monthly transfer of funds to Hamas conditional on their release. Now that corona poses a threat to Gaza, its eyes are turned to its biggest enemy, Israel, for help, and once again, Israel refuses to link the fate of the Gazans to their willingness to free our soldiers and civilians.
Last week, Israel's special negotiator for hostages and prisoners of war Yaron Blum informed the Goldin and Shaul families that progress was being made in talks with Hamas about the release of their sons. Netanyahu even held a conference call with the members of the Ministerial Committee on Missing and Captive Soldiers. But one would have to be an incurable optimist not to be pessimistic. We need to put a stop to this ongoing crime, with or without a long-term agreement with Gaza.
