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The Supreme Court and The Knesset

The two issues that kept Israel’s Supreme Court busy (all eleven judges sitting together, which is very rare, I understand) deliberating in public view (a) whether Israel can have a prime minister about to face a trial on three serious charges, and (b) whether, under the circumstances, the proposed unity/emergency government can be formed. This was the latest installment in the ongoing battle between the judiciary and the Knesset that has dominated Israeli public discourse, at times even more than how to deal with the corona crisis.

It was announced late last night that the Supreme Court decided not to interfere in the democratic process: (a) the prime minister was elected by Israelis who knew that he was under indictment, and (b) the coalition is being formed according to established parliamentary procedure. It is, therefore, not for the judiciary to tamper with democracy, even if the democracy is misguided in the eyes of many.

Not everybody in Israel is happy with the result. Netanyahu’s many critics would have wanted the Supreme Court to disqualify him and thus to stop the formation of the new government. Many have voiced their criticism, much of it expressed in the liberal and highly respected daily Ha’aretz.  Its editorial today compares the decision to putting a kosher stamp on very non-kosher food. No doubt, this will be reflected in protest demonstrations.

The critics may not be wrong. Nevertheless, the alternative would have been much worse. For the court to render the legislature illegitimate would not only have long term bad consequences but it would also force us into a new election, the fourth in just over a year. If current opinion polls are to be believed, the result would bring gains to Netanyahu, perhaps even allowing him to form a majority government without the Blue and White party.

The argument against new elections is not only the cost. As the proposed government is reputed to comprise of up to 36 minister and 16 deputy ministers as well as permit ministers to give up their Knesset seats in favor of those lower down on their party list (the so-called Norwegian law), in the long run this expense may exceed the cost of elections. But to hold elections at the time of the corona crisis would no doubt result in low voter turnout and long lines at the polling booths keeping required social distance. And, it is predicted, the result would not please the left-of-center critics.

All in all, therefore, common sense dictates to welcome the Supreme Court ruling and live with the continued leadership of Binyamin Netanyahu, now mercifully somewhat tamed by the presence of Benny Gantz and his party. Netanyahu is very likely often to outsmart Gantz, but he will not be able to rule as unchecked as he has done during the past year with appointments of people– notably the minister of justice but also others – who run his errands.

I hope I am right. The future will tell. Pray for the peace of Jerusalem.

Jerusalem 7.5.20                                                                                                               Dow Marmur

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