The High Court’s Involvement in the Appointment of a Prime Minister: The Depth of the Limbo (Column 300)
With God’s help
True, we are in the midst of an exceedingly current and practical discussion, one that stirs every thoughtful heart, but I will nevertheless allow myself to devote a sentence to a birthday. This is the three hundredth column on the site, and I hope and wish that I will have the strength to continue wearying you further on as well. I also hope that you will continue to read and respond, and perhaps also derive some benefit from these words (and if possible, not go off the religious path. Thanks in advance).
I am interrupting the series of columns on divine knowledge and free choice, because I received by email an interesting question regarding the High Court’s ruling in the hearing now taking place live on air concerning Netanyahu’s eligibility to form a government and the coalition agreement. Since this matter is happening literally today, and since it touches on several ideas at the foundation of our legal and social outlook, I thought it proper to interrupt the series of columns on free choice and quickly write something about it. I hope we will not slide here into tendentious political discourse, as usually happens. My aim here is to clarify several points at the foundation of our democratic and legal thinking, not to examine whether Bibi is fit to serve or not (on that I have already expressed my view, to all your great delight). I will write briefly, because dealing with this marginal subject is only a time-out in the more important series with which we are occupied.
And this was the wording of the question (it was not intended for publication, so the phrasing is that of an email):
| Dear Rabbi,
I would be grateful and glad to receive your view regarding the authority of the High Court to intervene and decide the matters before it. In your opinion, should and/or is the High Court empowered and/or permitted and/or entitled and/or obligated, etc., to intervene and decide the following question now before it: can, may, is Mr. Netanyahu entitled to receive the mandate to form the government when three serious indictments, including bribery, have been filed against him? At the same time, can and may the President refuse to entrust Mr. Netanyahu with this task. I am sparing the subsidiary questions regarding the right to intervene in clauses of the coalition agreement, because if the answer to the above question is affirmative, the continuation becomes redundant. If the answer is negative, then disqualifying parts of the coalition agreement is, in my opinion, less critical. A few sentences briefly supporting my position. The claim that the law permits a prime minister to continue in office as long as he has not been convicted by a final judgment is incorrect, and it attempts to attach to section 18 of Basic Law: The Government an interpretation utterly without foundation. Section 18 deals with removing a prime minister from office when he has been convicted of an offense involving moral turpitude and provides that the Knesset may terminate his tenure if he is so convicted. (sec. 18(a)). Section 18(d) deals with the automatic termination of his tenure if a final judgment has been issued. This section has nothing whatsoever to do with the present situation, which concerns someone who is supposed to form a government. Here, section 7 of Basic Law: The Government is relevant, and it provides: "When a new government is to be formed, the President of the State, after consulting the representatives of the Knesset factions, shall assign the task of forming a government to one of the members of Knesset who has agreed to it". Hence, when the President of the State assigns Mr. Netanyahu the task of forming the government, he assigns it to him not in his capacity as an incumbent prime minister, nor in his capacity as a caretaker prime minister, but in his capacity as a member of Knesset. Once there are three indictments against MK Netanyahu, there is no place whatsoever to entrust him with the task of forming a government. To summarize thus far: 1. There is no relevant law that enables or permits MK Netanyahu, who is under three indictments, to form a government. 2. There is a lacuna regarding what should guide the President when assigning the task of forming a government to a member of Knesset with three indictments. 3. The Supreme Court has full authority to give content to this lacuna–that is precisely its role. 4. The President of the State could have spared these petitions had he, with civic courage, himself given content to the lacuna and determined that he was unwilling to assign the task of forming a government to a member of Knesset under three indictments. (It may be that then Likud and Netanyahu would have sought the High Court’s help.) According to all the judgments to date on the fitness of candidates for public office and the demands of integrity from public leaders, the Court has many precedents that allow it to determine that a member of Knesset with three indictments is unfit to form a government. The Court may of course also rely on principles of justice, honesty, morality, public ethics, and more, whether in Jewish law (and it is permitted to do so), in the principles of the Declaration of Independence, or in plain common sense (insofar as it still exists in public life). It remains to contend with the question–but the people chose Netanyahu to be the candidate for prime minister despite the indictments, and the will of the majority of the people prevails. First, opposite one part of the people there is another significant part, almost equal in size, that does not agree to this. That is precisely how democracy becomes dictatorship by democratic means. Here lies the boundary to the will of the people, if democracy wishes to defend itself. The direction in interpreting the lacuna will be determined by the Supreme Court; that is its authority. And what about simple logic? If indeed there is no law that permits Netanyahu to form a government, then why should any reasonable person, or simply any decent person, agree that such a man, however talented he may be, should lead the state? In any system whatever, we would not accept a situation in which a person against whom three indictments have been filed would stand at the head of the system. The threat that if the Court intervenes there will be another round of elections is extortion and a threat to the Court’s independence. It is also incorrect, since why can we not expect the ministers and Knesset members of Likud to choose another candidate once Netanyahu’s candidacy is lawfully disqualified, in which case it is also likely that a unity government would be formed very quickly. Incidentally, if Netanyahu’s candidacy is disqualified, there will be no logic in appointing him head of the party for the next elections, and so a solution would be found already now. If the Rabbi’s opinion is close to what is said above, then I would ask whether in such a situation it is not called for to struggle to strengthen the High Court and support its being the compass that shifts the direction of travel on this issue? Can such corrupt leadership be acceptable at all? Is this not a shared and critical matter for all of us, whether right or left, religious or secular, etc.? Does this not justify all of us taking to the streets? It would be important to hear your opinion.
P.S. The Attorney General gave an exceedingly limp legal opinion. He agrees as to the gravity of the implications of the situation and sees serious problems regarding the coalition agreement, but says there is no impediment to Netanyahu forming a government. Truly unconvincing, and even cowardly. This of course does not bind the Court. |
What I answered him I will rewrite here in order to clarify and elaborate the main points. The inquirer is a veteran jurist, so I should preface by saying, for those who do not know me, that I am of course not a jurist, and therefore I will focus on the principled questions and less on the legal clauses. I assume that this is mainly what he expected to hear from me.
Introduction
First, I prefaced by mentioning that in my view it is inappropriate for Bibi to serve in the office of prime minister for many reasons. Moreover, I have the impression that this can indeed even be fitted legally into the law (by distinguishing between an incumbent prime minister and a prime minister upon whom the task is now being imposed). Several such directions are mentioned in the question above. Still, in my opinion it would be a great mistake to intervene and grant the petition, and I am also completely certain that this will not happen.
It is important to recall the background to this discussion. In the past, the High Court and the Attorney General evaded dealing with the issue in an embarrassing and unintelligent way. There were several petitions against Bibi’s appointment, both before the elections and after them. Both the Attorney General and the High Court consistently rejected the petitions on the embarrassing ground that this was a hypothetical question and therefore the Court should not address it. In my view, this reasoning breaks records of foolishness (although the reasons for it are clear. See below). The public goes to elections and decides, among other things, which candidate it deems worthy of serving as prime minister. All this happens while it is possible that the High Court will decide, after one of them is elected, that he is not fit to serve. Quite apart from the correct answer and your own opinion on the matter, is it not obvious to all that it would have been proper to inform the public in time, before the elections, so that it would know for whom to vote and take this into account as part of its considerations? If this counts as a hypothetical decision, then the court can be shut down. Everything it does is no less hypothetical than this. This is one of the most absurd legal decisions I know. And when this happens consistently in all the instances, and when first-rate jurists are involved, it arouses suspicion that there is some other consideration here.
What is that consideration? It cannot be opposition to the appointment or support for it. Either way, they should have decided and stated their position. On that plane one could argue, ironically, that there is actually a tilt to the right here, contrary to all the accusations against the Court. I therefore assume that what we have here is fear and procrastination. The background to the matter is the feeling of public distrust of the High Court. From conversations I have had with moderate and intelligent people, many of them tell me very emphatically that they have no doubt that the High Court is playing on the political field. This is not confined to extremist fringes, but is found in considerable parts of the normative and intelligent public. It cannot be attributed to incitement, nor to extremism. These statements are heard right from the center. It is easy to attribute this to political incitement (which indeed exists to some extent), but in my view that is disingenuous. Through its decisions and prior conduct, the High Court has cooked the porridge it now refuses to eat. The fear of an eruption of this distrust is what lies at the root of the incomprehensible procrastination I described, and certainly behind the absurd justifications that were given for it. I cannot think of any other explanation.
The roots of the distrust[1]
Very consistently, in sensitive decisions, the High Court reaches majority rulings that align distinctly with the worldviews of the judges in question. No self-righteous and detached declaration by the President of the Court, or by any other legal commentator, will succeed in convincing the public that these decisions are objective and purely legal. The public may be stupid, but not entirely. It is true that in most of the cases heard by the Supreme Court there is no direct ideological aspect, and therefore most of them do not even come to the attention of the broader public. This fact is always mentioned in order to say that the shrill criticism directed at the Court is based on a few cases that stand out in the media and in public discourse but has no real foundation. But this is of course nonsense, because the entire discussion concerns only those cases. No one claims that the High Court or the Supreme Court is ideologically biased when it decides one or another specific technical question. The question is how the sensitive rulings look when it comes to issues that are politically and ideologically charged (right – left, religious – secular, etc.).
A partial survey of such rulings can be seen in Kalman Libeskind’s article from yesterday; he never stops dealing with this subject (a quick search through his articles will yield many further examples). I can only mention the ruling on the supermarkets, which I read avidly from beginning to end, and to my astonishment it opens with a declaration by the President of the Court (Miriam Naor, who read the festive decision at her retirement ceremony) that is one of the bluntest, most brazen, and least credible lies I have heard in recent years, certainly when it comes from a senior jurist like her. Naor claimed that there was no connection between the decision and the worldviews of the judges. Let me remind you: right next to this detached and bizarre statement appears, for all to see, a ruling by a majority of five secular judges against two religious ones. Is this not contempt for the public’s intelligence? Add to that the High Court case on leavened food in hospitals, which was published only at the end of last week, where once again an "objective" decision was reached by a majority of two secular judges against one religious judge (guess which of them ruled which way). See further examples in Libeskind, and there are of course more.
Incidentally, I must say that in my opinion this phenomenon is quite natural. It is hard for a judge to detach himself from his worldview and his values, and it is only natural that this should affect, sometimes even unconsciously, his positions, values, and interpretations. Moreover, sometimes that is even as it should be. We must remember that the Supreme Court, by its very nature, deals with what is proper and normative, and not only with technical legal questions. Certainly when the issues are of the kind we are discussing here. In such issues it is supposed to take into account the fundamental values of society and what it is reasonable or unreasonable to demand of a citizen in the state. In law, not everything is the mathematics of statutes, and in such matters all the more so. What is reasonable and what is proper certainly depends on the judge’s values. I do not think he can, or even that he should, detach himself from his conceptions and values in such questions. So those who argue this in defense of the Court against the criticism are right. But those same defenders of the Court, who argue this passionately when the discussion concerns criticism of the content of the rulings, somehow forget the very same point when the discussion turns to the composition of the Court. For if we understand and are aware of this, how is it possible that the judges continue to pull the wool over all our eyes and explain to us that there is no connection between their rulings and their worldview? How is it possible that the judges continue to claim consistently that the composition of the Court is balanced and always has been (though now it really is more balanced than it once was), when it is obvious to every reasonable person that this is not so? How is it possible that they oppose political influence on the appointment of judges and try in every way, legitimate and less legitimate, to keep in their own hands the power to appoint and determine who their colleagues on the bench will be, and within that framework argue fervently and self-righteously that a political appointment would corrupt the system? This even though, as noted, they themselves admit (when the spirit moves them) that a judge is a human being, and cannot, and not always should, ignore his values. One should remember in the background of this discussion that in not a few places in the world (the United States, of course, for example) it is accepted to appoint judges in an entirely political manner. If the Court makes decisions that have political significance, and if empirically it becomes clear to us time and again that the rulings reflect, in very pronounced correlations, the political and ideological conceptions of the judges, then it is only natural and called for that the Court include adequate representation of the entire range of views accepted in society. But our enlightened and wise judges deny this reality, and they oppose very sharply and forcefully a representative policy in the composition of the Court (incidentally, sometimes they both oppose it and claim that it exists. Intellectual honesty is not always their guiding light). As noted, they seem to assume that the public is more stupid than it really is (a state of affairs that is rather hard to imagine). Incidentally, these remarks apply mainly to the High Court and the Supreme Court. In the other instances all this is of less significance, of course.
The sacred balance in the Court
Note that the arguments to the effect that the percentage of religious or conservative judges matches their percentage in the population (and today perhaps even exceeds it) have almost no practical significance. Even if they are correct, the important question is what percentage of each type of judge sits on each panel that deals with politically and ideologically sensitive questions. To illustrate this, let us assume that half the judges on the Court have a religious-right worldview (and let us assume for simplicity that these always go together, and that the same is true of liberalism and the other divisions in society. This is only a toy example to illustrate an important point). We all know that the panel of judges that deals with each charged case is determined in such a way (that no one knows, of course) that for some reason, in almost every question connected to religious matters, at least in the cases I have heard about, there is a majority of judges from the secular side. And so too with questions that touch on political matters: almost always there is a majority of judges from the left side (see Libeskind’s example of the infiltrators, which he dealt with at length in the past as well), and so on.
What emerges in such a situation is that almost one hundred percent (!) of the decisions are made in accordance with fifty percent of the judges. Therefore the overall balance is not of much significance. If one wanted to arrive at a more sensible and reasonable balance, one would have had to create a mechanism that determines panels in such a way that in twenty percent of the cases dealing with religious matters there would be a majority of religious judges on the panel, and in seventy percent of the cases dealing with political matters there would be a majority on the panel of judges who incline to the right (because there is a clear right-wing majority in the public). The percentage of religious or right-wing judges among all High Court judges determines nothing. That is to say: a representative method. One must understand that in light of the data I have described here, the person who made the decisions in the examples I brought above was not the one who sat in judgment, but the one who determined the panel that would sit in judgment. It is no wonder that the hidden mechanism that determines the panels in these cases is one of the best-kept secrets in the system (Libeskind dealt with that as well in several of his articles). One thing I understand from what I have read is fairly clear: the President of the Court, both the current one and her predecessors, is involved, at least in determining the panels that sit on sensitive cases.
Back to procrastination
From this description it is easy to understand why the High Court fears for its standing and does not want to decide the current question. In light of the anger and accumulated distrust among considerable parts of the public, Moti Yogev’s remark about the D-9 pales in comparison to what is liable to happen here if they grant the petition now before them. As noted, the public’s anger is justified to a considerable degree, although of course it is intensified for various reasons, and it is likely to increase greatly in a case in which the political bias will be perceived as so clear-cut as in the case before us. It is therefore no wonder that until now they have recoiled from making any decision, until they are forced to do so today by force of circumstances (it is no longer possible to postpone the decision on any absurd ground, as was done in the past). Nor is it any wonder, and in my opinion it is entirely clear that this is what will happen, that the decision now reached will be to reject the petition. But not because of some inclination to the right; rather because the Attorney General and the High Court will continue their policy of procrastination. Until now they preferred to evade a decision out of concern for their standing. They postponed it in various strange ways in the hope that the voter would pull the chestnuts out of the fire for them and not force them to eat this burning chestnut (that is, to decide this burning question). Well, in practice that did not happen (and it was not likely to happen, so this was not only cowardly and juridically scandalous, but also blatantly unintelligent). Now they must decide. So what do you think is likely to happen now?
Think about the fact that after this delay, the decision became necessary but more difficult. Now it already seems that they have nowhere to run, although in light of past experience it is hard to rule out another absurd avoidance. One should remember that the question on the agenda is whether it is possible to except the appointment of a new prime minister from the law that allows an incumbent prime minister to remain in office despite indictments filed against him. I think that on the legal plane this exception is not at all implausible (see, for example, several arguments in the question above), except that now, after they waited, we are already dealing with a prime minister who is almost in office. Elections have been held, a long, exhausting, and tortuous negotiation has taken place, and in the end a coalition has been formed that has a majority in the Knesset. The process is still incomplete, but now it is already much harder to argue that we are dealing with the appointment of a prime minister rather than the dismissal of an incumbent prime minister. In such a situation Bibi is already almost an incumbent prime minister, and it is harder to argue that the law does not apply to him.
What is the right decision? Policy considerations and a meta-legal consideration
So what, in my opinion, should they have decided? The question pertains both to the petitions that were filed in the past and to the one being heard now. In my view, the reasons written by the questioner are weighty, and I think that in principle it would be proper to disqualify Netanyahu’s fitness to serve. True, in the past there was more room to intervene and determine this, but today this is already plainly unreasonable. It would have been more correct in the past both because then it was perfectly clear that he was not yet in the category of an incumbent, and also because public anger was less than it is now. After all, he had not yet been elected, and Likud could have put forward another candidate with the same ideology for the public to choose. The public anger would have been strong, but in my estimation it would eventually have passed and the caravan would have moved on. Moreover, when he ran in the elections he was a candidate to be a member of Knesset and not a prime minister, and a member of Knesset is not fit to receive the task in such a situation. But now that they delayed the decision, a new situation has arisen. Now there is already a law that has made him prime minister, and they would have to invalidate the law in order to make such a decision.
Even so, despite all this, in my estimation they were forbidden to intervene already then, and all the more so today. That is, in my opinion they should reject the petition even though, in principle, I think it is very justified and, legally speaking as I understand it, it certainly would have been proper to grant it. The explanation for this lies in two planes of discussion that appear similar but are utterly different from one another. In the earlier discussions, the main reason to reject such a petition was extra-legal. The Court has the ability to weigh policy considerations, according to which even if there is legal justification to intervene, it sees no place to do so for various reasons (such as preserving the Court’s standing, public controversy, etc.). But when we discuss the decision that ought to be made today, this is not merely a matter of policy and concern for the Court’s standing (which too, as noted, is legitimate). In my opinion there is here a more substantive claim, which can be seen as an actually legal consideration.
One should remember that this is a social-legal-political situation in which about half the public thinks that judicial intervention here would amount to outright seizure of power by force. Many see this quite literally as a forcible coup, as though the Court were climbing onto the government and the Knesset with a D-9. What I mean is that if and when the Court grants the petition and disqualifies Netanyahu from serving as prime minister, it will not merely be risking the loss of whatever remains of the public’s trust. That would be the better case. In the worse case, there will be genuine civil disobedience here (in combination between the public and the Knesset, with the backing of the public). The public and the Knesset will climb onto the High Court with a D-9 (for example, they will simply not comply with its order, something like what Yuli Edelstein did without a shred of justification – see column 287), and this time it will be hard to say that this is wholly baseless. If a considerable part of the public genuinely feels that some body is seizing power without having been elected, it will not be willing to allow it. A revolt against a body that takes over the public by force is legitimate under certain circumstances even in a democracy. One must remember that law draws its force from the consent of the public, not from the judges’ opinions or from divine inspiration. And when the public speaks, especially when this is done again and again, consistently, in several election systems, the Court has no real legitimacy to rule otherwise.
I would formulate it this way. The Court cannot determine that half the people are behaving unconstitutionally. Half the people can err, and perhaps even violate the law, but the case of constitutional law is different. The validity of a constitution, and of constitutional law in general, lies in the fact that they reflect the people’s fundamental values. Therefore the constitution is nothing but an expression of the people’s will (and not the will of the judges). It is impossible to determine that the people are mistaken by virtue of the people’s own will. Note that this is a logical and legal problem, and not merely an argument of wise policy that preserves whatever remains of the Court’s standing. Such a decision by the Court is simply illegitimate. At first glance this resembles the policy consideration I described, but upon further thought you will see that it is a consideration that is fundamentally different, though not wholly independent. The distrust and illegitimacy of such a decision may lead to a more turbulent outbreak of public upheaval and harm the Court’s standing. The substantive consideration can also ground the policy consideration. In the decision that ought to be reached today, unlike the decisions that ought to have been reached regarding the earlier petitions, in my opinion this is the central consideration, and not only the policy consideration and the concern for the Court’s standing.
There might perhaps have been room in this context to distinguish between a situation in which some decision of the Knesset or government directly and explicitly contradicts the law, in which case there may perhaps be room to consider going even against the will of half the people, but in our case that is not the situation. The law as written actually leans very strongly in Bibi’s favor (a prime minister is different from a minister, especially when he is already almost in office), and only interpretation (not unreasonable, and in my view quite called for) could extract from it a different conclusion. In such a situation the Court has no legitimacy to reach a decision against the will of half the people, especially when there is also the policy consideration that the people will not accept it. Granting the petition may bring disaster upon public trust in the Court, which even now is not at its peak. That is in the best case. In the worst case, it seems the D-9 is already on the way.
A bet
Beyond all this, as I wrote, I have no doubt that this petition will be rejected. There is no doubt that the judgment will contain a great deal of verbiage about how problematic this is, and how important clean hands and the prevention of corruption are, etc. etc., along with more lofty and unconvincing words. But as I wrote above, in my estimation this will be done because of policy considerations (continued procrastination), and not because of the substantive consideration I presented here. If the Court had accepted the substantive consideration I described, it should have declared this in a resounding judgment already in the earlier petitions, when the concerns were not yet so threatening. Even then it should have said that it did not intend to enter this issue because the constitution is the will of the people and not the reasoning of the judges, and one cannot negate the will of the people by force of the constitution. The people should say their say at the ballot box and not in the courtroom. This is a principled and correct statement in my opinion (despite the fact that I personally revolt against the will of the people in this case), and it is a pity that the Court lacked the courage to put this on the table and discuss the issue already then, when it was still possible to do something. Whether they would have disqualified Netanyahu or accepted this meta-legal consideration (as I said, it is more valid now than it was then), in any case I have no doubt that the situation would have been far calmer and less tense than what is happening today, when the whole country is sitting on a powder keg. This is the price of the procrastination and lack of courage and intellectual honesty of the Court and of the Attorney General.
But they did not want to say this, because they thought (in their great foolishness) that they would be able to evade it until it would no longer be relevant. As noted, that is how we reached a situation in which all of us, both the judges and we the citizens, are compelled to eat the porridge they cooked for us and for themselves with their own hands. Through their failed conduct they already managed, even before making the charged decision, to lose the remnants of standing they had and the public trust that remained toward them, without thereby achieving anything at all. It is worth noting that they managed to bring about the loss of public trust on both political sides: both on the right and on the left, and to tell the truth, rightly so from both sides. The left is angry because it is right that Netanyahu cannot be prime minister and believes that the Court should already have decided back then and not have brought about the terrible tension we have today. From their perspective, the Court, through its procrastination, brought it about that Netanyahu would be prime minister. But the right is also right, since the Court, through its procrastination, signaled what it really wanted to achieve and where its public courage and intellectual honesty stand.
That concludes the general response I wrote to the questioner. As for his other questions, I am of course not a jurist, but I will write briefly what I think beyond what I have already written.
Specific observations
In my opinion the President cannot refrain from assigning the task to Bibi. As noted, in my opinion even the Court cannot, in such a situation. Beyond that, it would not help him anyway, because no one else would succeed in forming a government (otherwise he would do that). Therefore he cannot simply refrain from assigning it to him in favor of someone else. The President is supposed to assign the task to the candidate who has the best chance.
Precisely disqualifying parts of the coalition agreement seems to me much more reasonable and possible, but as for the ground for that one has to think very carefully. We have here an agreement that is scandalous on the moral plane, although on the face of it the Knesset has the right to do it. If Bibi is the acting prime minister, then he is not prime minister, and therefore the law that forbids him to serve applies to him just as it does to any other minister. Can such a law exclude such an acting prime minister from the previous law? Perhaps. It is worth legal examination. In addition, there is the very fact that they define in the agreement two prime ministers. And I do not know whether that meets legal scrutiny, and the scrutiny of the interpretation of the previous law that excepts a prime minister from the Pinhasi-Deri precedent. But that requires legal examination. If our stupid people accept all this (including two official residences and fifty-something ministers) – then all this entirely befits us, and on the face of it I find it hard to see any possibility of intervention (except perhaps regarding one clause or another).
The duty to strengthen the High Court is indeed important, and today all the more so, but in my opinion the one who chiefly weakened it was the Court itself. We have seen that central High Court decisions are reached in a way that clearly follows the values of the judges, although of course they consistently deny this fact (as noted, this is not disingenuousness but simply a lie). The Court had become accustomed to representing one side on the political map, and accustomed to absolute authority to do whatever came into its head despite public disputes, and by doing so brought about the loss of its standing and of trust in it. This tango has at least two sides, and throwing all the mud only at the political side is disingenuous. No one, except a few leftists, buys that. It is no wonder that politics responds accordingly. When the High Court is intoxicated with hubris and, since the happy Barak era, conducts itself in a forceful and arrogant manner, it brings upon us and upon itself a forceful political response against it. By the nature of things, in such a struggle each of the political and governmental bodies uses the tools at its disposal. The High Court tends to speak like the aggrieved victim, as though the political system were forceful and using its power against it, while it has nothing but public trust (as if it had "no purse and no sword". See on this in column 258). But the impression is that the High Court really does not behave that way. At times it behaves like a neighborhood bully holding both a purse and a long sword. In short, there are no righteous people here and no wicked ones. In column 287 I spoke of the political limbo within which we found ourselves because of the tie between the blocs, but now it becomes clear to me that the limbo in which we are stuck is far broader. Our entire governmental system is stuck and on the brink of explosion, and everyone, all of us, is to blame for this.
But that is not the end of the story. The limbo is much deeper.
Two general remarks by way of conclusion: Israel never had a parliament, and today it does not even have laws
At the margins of the discussion I will offer two further remarks that illuminate the limbo in an additional and more comprehensive light:
- In the State of Israel, since its establishment, there has never really been a parliament. The executive branch rules the legislative branch without constraint, and determines in an almost unequivocal way nearly everything that happens in it. Once we do not really have a legislative branch at all, the balance between the other two branches is also impaired, because what we then have is a government facing a court, without the mediation of the Knesset. The coalition acts in the Knesset according to the government’s directives and dictates, and therefore we do not really have a legislative branch, nor its oversight of the executive branch, which does whatever it pleases. In such a situation the Court reacts with relative aggressiveness, taking powers unto itself out of the justified feeling that the Knesset is running wild. But then this enrages the public and the political system against it, and the cycle repeats itself. The absence of an effective parliament is a tried-and-true recipe for disintegration. And I have not yet even spoken of a situation in which half the parliament is in fact government ministers. In such a state, not only is the parliament ineffective; it simply does not exist. Physically there is no one to work in it and occupy it. What remains are esoteric and powerless fringes of the government, dependent upon it and unable to act independently. If the nullification of the Knesset does not constitute grounds for invalidating clauses in the new coalition agreement, I do not know what could justify doing so. Changing a regime from the ground up requires a different and deeper process than an occasional, corrupt, and opportunistic coalition agreement like the one we have today.
- But even that is not all. As a result of the situation I have described, the status of laws in Israel has fallen to an unprecedented low. Constitutional law among us is a dead letter. People struggle over a law and wage a campaign with advocacy and lobbying and so on, in the best democratic tradition (in the positive sense), and they achieve a conscription law or any other law (for example, limiting the number of ministers in the government), and then another ad hoc coalition comes along and everything is undone at the flick of a temporary and narrow interest, without any thought for the substance. One of the important parameters of the rule of law is the stability of the law. When a law is passed, the assumption is that something has happened. With us, passing a law is a trivial and meaningless event. At any incidental opportunity, with some ad hoc majority for whom the law does not suit its interests, it is changed. In such a situation there is no motivation whatsoever to think about the substance of the law, or even to uphold it. If it does not suit, they change it and that is all. It is not regarded as too significant a decision. In the most recent terms this has happened all the time, even with Basic Laws, which is of course much more serious. So what is the meaning of laws at all, and of Basic Laws in particular, in such a situation?
Incidentally, the High Court has a share in this too. If it invalidates laws too easily, then the Knesset defends itself by emptying laws of content and standing and simply changing them whenever it feels like it. This scandalous norm is extremely grave, and in my view much graver even than Bibi and corruption. Not only do we not have a legislative branch and oversight of the executive branch, and not only is there an unresolvable tension between the executive and legislative branches, but in fact we do not have constitutional law at all. There is law for the private citizen, but not for the institutions of government. If there is no law, then of course there is also no rule of law. The principle of legality states that with regard to the citizen, everything that is not forbidden is permitted, while with regard to the authorities, everything that is not permitted is forbidden. Today that is not the situation. The citizen is subject to the law, but the authorities are not. At most they will change the law according to their convenience.
As stated, the root of the evil is the fact that in Israel there is no parliament, but only an executive branch. One of the consequences of all this, contrary to what is commonly thought, is that coalition or opposition discipline—that is, discipline imposed by a party or coalition on an individual member of Knesset—is bad and harmful. On the one hand, it may perhaps be necessary for the proper functioning of the Knesset and the parties, but in a situation in which there is no parliament in Israel, this is almost the only remnant in which our parliament expresses itself beyond the executive branch. Independent action by members of Knesset against the dictates of the government is the lifeblood of a legislative branch, which among other things supervises the executive and balances it.
The meaning of the apocalyptic picture I have described is that our entire system—governmental, political, and legal—is stuck and in a very dangerous state. Without an effective parliament, without effective constitutional law, and with a forceful struggle between the executive branch and the legislative branch, especially when this takes place without the mediation of a parliament, the situation is in my opinion extremely grave. Forgive me for beginning to sound like the leftists speaking about danger to democracy, but I definitely do see such a danger. Our entire society needs a serious jolt. In fact, what we need is not one judgment or another, nor a more moderate government or court, but a new social covenant, from foundation to rafters. A covenant that will shape the patterns of conduct, the norms, the power relations, and the proper relationship between the branches of government, and of course ensure that we have three such independent branches. In fact, were I not afraid of exaggeration, I would say that the state needs to be reestablished in the sense of its system of government (constitutional law). The easiest thing for all of us is to throw all the mud at the Court, or at Bibi, at the left or at the right, but it takes two to tango. All of us are to blame to one degree or another, and if we do not take ourselves in hand, this process will only deteriorate. Continuing this conduct will lead to a very dangerous disintegration of our society.
Now, after we have put everything in order, we can return to the question of free will and divine knowledge.
A few days after writing the column, I found three strong (rather short) articles by Yoav Dotan and Daniel Friedman regarding the Deri precedent, dealing with its lack of foundation and its significance for the relations between the High Court and the legislative and executive branches. These points are very closely connected to what I wrote, and they are definitely worth reading:
https://www.haaretz.co.il/opinions/.premium-1.8816454
https://www.haaretz.co.il/opinions/.premium-1.8826427