It was providential that Israel’s Supreme Court, in an atypical, but admirable exercise of judicial restraint, declined last week to intervene in challenges to the new unity government between Benjamin Netanyahu and Benny Gantz.
Netanyahu’s opponents said he was disqualified from leading this unity government because of his criminal indictment and upcoming trial. And the unity government agreement was attacked as being invalid because it adopted several substantial departures from Israeli legal norms.
The new government will be faced with the historic decision of annexing the Jordan Valley and other land where so-called settlements with large Jewish populations are located as now envisioned in President Trump’s peace plan. Had the high court come out the other way, the pursuit of annexation would have become difficult, if not derailed altogether.
General Gantz doesn’t have anything like Netanyahu’s all-important relationship with Trump. In addition, Gantz believes that annexation – which he says he favors in principle – should only be pursued as part of negotiations with the Palestinians. Netanyahu has said he would promptly seek annexation even before negotiations, but would agree to negotiate an overall peace agreement.
The unity agreement provides that the government can take up annexation beginning July 1 of this year and that Netanyahu will be prime minister for 18 months, to be succeeded by Gantz for the remainder of the term of the unity government. So if Netanyahu were to have been disqualified and/or the unity agreement been invalidated, which would have necessitated a fourth election, annexation would effectively have been off the table for a significant period of time – perhaps for the foreseeable future – when it is now in plain sight. And it is a political rule of thumb that with these type of hot-button issues, when any number of things have to fall into place, one must strike while the iron is hot.
Actually, the high court could well have decided against Netanyahu. Israeli law bars low-level government ministers from staying in office while under indictment; the law does not specifically prohibit someone indicted from becoming prime minister. But the court could have said it does.
And there were also other unsettled, key questions of law that were in play. The unity agreement, among other things, shortens the government’s term from four years to three and weakens the opposition’s ability to act as a check on the majority’s legislative and executive powers. It also pushes the legal envelope by expanding the prime minister’s appointment power at the expense of Knesset oversight.
The theme running through the court opinion on the various issues before it were that they were essentially political in nature and not ordinarily in the province of the courts. The justices ruled that the Knesset is the body that appoints the prime minister, and the court must give heavy deference to their choice.
Similarly, it said that the coalition agreement was approved by a majority of the Knesset members and is therefore entitled to great weight. At all events, the court said it could revisit the changes wrought by the agreement if they turn out to be problematical in practice.
As a whole, Israel’s Supreme Court has long been notorious for its judicial activism, turning political and social issues into legal ones to be resolved by themselves – non-elected jurists. And part of the critique against it is that it is driven by a left-wing political bias and bent on reforming Israel in its own collective neo-socialist image. Indeed, in recent years it has frequently ruled against settlers and Jewish landowners in contests with Palestinian claimants on the flimsiest of evidence.
Thankfully, the court came to its senses this time.