Israeli law encourages corruption at the very top

At the end of the day, Israel’s High Court of Justice did what is expected of a judicial system and ruled in accordance with the law of the country. Late last Wednesday night, on the rare occasion that a panel of 11 judges deliberated a case, the highest court in the land struck down a petition to bar a criminally indicted lawmaker from forming a government; paving the way for Prime Minister Benjamin Netanyahu to lead his fifth administration despite his impending trial on charges of bribery, fraud and breach of trust, which is scheduled to begin this month. The court was asked to look into two key questions: Whether a politician facing corruption charges, such as Netanyahu, can form a new government, and whether his coalition deal with Benny Gantz, Blue and White’s leader, violated the law.

As it happens, the most senior judges in the country, led by High Court President Esther Hayut, decided that it was not for the judicial branch to intervene in the coalition agreement between Likud and Blue and White, though it raises “judicial difficulties.” Even more significantly, they decided not to disqualify Netanyahu from remaining prime minister during his trial. It was probably the most difficult decision these judges have ever had to make, at least on constitutional matters.

However, the courts make decisions on the basis of what is known as “legal positivism,” which is a school of jurisprudence whose core belief is that the only legitimate sources of law are those written rules, regulations and principles that have been expressly enacted by the legitimate state organs. It is not about morality or justice, even if they are repelled by both the corrupt and convoluted coalition agreement and the immoral repulsiveness of the person heading it. Those who support good governance over corrupt and capricious serving politicians were probably clutching at straws, hoping that the judicial branch would come to the rescue of Israel’s democracy. It could have, but the judges unanimously decided that it wasn’t its place.

We will never know if the judges were influenced by Netanyahu’s claim — more of a threat — that to prevent him from forming a coalition would lay the blame for a fourth election in a year at their doorstep, or whether it was his menacing declaration that, “We hope the court doesn’t interfere. It doesn’t need to interfere. There is the will of the people, the clear expression of the will of the people.” In other words, if the courts accepted the petition against allowing him to remain in power they were, according to him, acting against the will of the people — and this would be a pretext for him to attempt to curtail their powers in the future.

This has been Netanyahu’s style throughout his career: Incite, threaten and divide, and always act as both the savior of the people and the victim of the establishment, or the supposed “deep state.” He conveniently forgets that the will of the people was to see him gone. The majority of MKs elected in March expressed this clearly during their election campaigns. What has transpired now is that some of them, led by Gantz and Labor leader Amir Peretz, have no moral backbone and no moral compass; hence they deceitfully reneged on their promise not to sit with Netanyahu in government.

It is more likely that the judges were not responding directly to Netanyahu’s threats, but were concerned that disqualifying him would constitute an intervention in the democratic process and overstep the remit of the judicial branch. Similarly, they limited their instructions regarding amendments to the coalition agreement only to instances where it blatantly violated the law or distorted the will of the voters.

In the period leading up to last week’s ruling, Netanyahu and his antidemocratic right-wing henchmen led an intimidation campaign against the High Court and its judges. Following their decision not to act as the saviors of justice and ethical behavior in government — as the left and liberal-progressive forces had wanted them to — it was the latter’s turn to lambast them. These progressive forces accused the judges of being cowed into making their decision and of failing to stand firm as the last bastion of the country’s democratic values. 

While the behavior of the first was deplorable, the lament of the latter might be understandable, but it was regrettable too. Their criticisms should be directed at the law itself for allowing such a situation and the corrupt nature of the politicians embroiled in what is probably the worst and most cynical betrayal of voters in Israel’s history. It is no surprise that Netanyahu behaves like the head of a criminal organization rather than a democratic leader when the law permits a prime minister to serve while facing serious corruption charges. 

When it comes to a sitting prime minister, the Basic Law, which carries constitutional weight in Israel, does not apply.

Yossi Mekelberg

The void in the law screams of wrongdoing, especially as another ruling by the High Court of Justice nearly 30 years ago ascertained that it is the duty of a prime minister to dismiss a minister indicted on criminal charges if they don’t step down voluntarily. However, when it comes to a sitting prime minister, the Basic Law, which carries constitutional weight in Israel, does not apply. That is both illogical, immoral and encourages corruption at the very top of the political pyramid; let alone allowing a corrupt prime minister to cling to power at whatever cost to the country.

One reason Netanyahu’s lawyers gave the court as to why he should be allowed to stay as prime minister was that he, and only he, is “uniquely deserving” of leading the country. Most probably, the judges didn’t take this absurd assertion too seriously, as it carries no legal significance. However, it raises a number of concerns, chiefly: If he is right, Israel’s future is in real jeopardy and it has no prospect of a worthy leader beyond him; and, more fundamentally, whether anyone in such a megalomaniacal state of mind is fit to be anywhere near the reins of power, not only legally, but mentally too.

• Yossi Mekelberg is professor of international relations at Regent’s University London, where he is head of the International Relations and Social Sciences Program. He is also an associate fellow of the MENA Program at Chatham House. He is a regular contributor to the international written and electronic media. Twitter: @YMekelberg