Hoist with its own petard?

Israel’s High Court created the problem that drove tens of thousands of voters into Benjamin Netanyahu’s arms. The result could be a government willing to enact legal reforms that the court bitterly opposes.

By Evelyn Gordon

Though Israel’s final March 2 election results still aren’t in, one thing is clear: Prime Minister Benjamin Netanyahu did significantly better than he did in September, and his bloc is close to having enough seats to form a new government. That’s a far cry from saying he’ll actually be able to form one. But if he does, the legal system will be hoist with its own petard—namely, repeated court rulings that, in defiance of the actual law, barred lame-duck governments from doing almost anything of importance.

To understand why, it’s first necessary to understand how Netanyahu’s bloc gained three to four seats since September, all of which went to his own Likud party. Granted, many Israelis either don’t believe the indictments against him or don’t consider them serious enough to justify ousting someone they consider an excellent prime minister, but all those people also voted for him in September.

The tens of thousands of Israelis who switched their votes on March 2 didn’t do so because they used to think Netanyahu was guilty but are now convinced he’s innocent, or because they used to think Netanyahu was a lousy prime minister but are now convinced he’s brilliant. Rather, most are former Netanyahu supporters who grew disgusted with him—enough that they either stayed home or voted for his rival in September.

But they’re even more disgusted by Israel’s third election of the past year and the ongoing inability to form a new government; they’ve become convinced that even a bad government is better than no government. And the anti-Netanyahu bloc had no realistic chance of ever forming a government because too many of its constituent parties refuse to sit at the same cabinet table either with each other or with any of the parties that could potentially be wooed away from Netanyahu. Thus the only way to increase the chances of a government being formed this time around was to give Netanyahu’s bloc the few extra seats it needed.

But why would these voters care so much about having a new government? After all, the country is basically functioning under Netanyahu’s lame-duck government, which remains in office until a new government is formed despite having lost its parliamentary majority last year.

Unlike in America, there’s no such thing as a government shutdown in Israel. Public services continue functioning even without an approved budget because they’re automatically funded every month to the tune of one-twelfth of the previous year’s budget. The army still defends the borders and fights terror. Netanyahu still travels the world expanding Israel’s diplomatic relations.

Nevertheless, there are many things a lame-duck government cannot do. It can’t make appointments, so senior civil-service posts have been empty for a year. It can’t pass a new budget or allocate any funding that wasn’t included in the previous year’s budget, so vital new programs—like the army’s five-year development plan and desperately needed infrastructure projects—have gone unfunded. And vital old programs, including pilot projects to help Israel’s neediest, have shut down because their funding was only approved for a year and a lame-duck government can’t renew it. The government also can’t address the yawning deficit by cutting spending or raising taxes.

To be clear, Israeli law doesn’t actually prevent a lame-duck government from doing any of this. Moreover, as the High Court of Justice admitted in a 2001 ruling, this wasn’t an oversight; the Knesset considered this issue during the state’s early years, but ultimately accepted a public commission’s recommendation against restricting lame-duck governments, lest such restrictions hamper their ability to act in an emergency.

But the court, always convinced that it knows better than the legislature and scornful of that quaint democratic principle which holds that law should be made by elected legislators rather than unelected justices, decided decades ago to overrule the Knesset on this issue. True, lame-duck governments are formally empowered to do anything, it declared, but under other High Court rulings dating to the 1980s, no government action is legal unless the court also deems it reasonable, regardless of what the law says. And the justices, together with the successive attorneys general responsible for enforcing their dictums, have deemed a wide range of actions by lame-duck governments unreasonable.

To understand the absurd lengths to which this has been taken, consider one case now before the court: The government recently created a public commission to probe the Justice Ministry’s handling of police misconduct, but the attorney general nixed it, saying a lame-duck government has no such power.

Granted, the timing was political; Ethiopian Israelis, a community Netanyahu sought to woo, are furious with the ministry for what they see as its tolerance of police brutality against them. But so is every other constituency in Israel—left-wing, right-wing, Arab, ultra-Orthodox, you name it. Excluding the police and Justice Ministry staffers, there’s a wall-to-wall consensus that the ministry is soft on police brutality. So why bar a lame-duck government from a probe that most Israelis consider long overdue?

Adding insult to injury, the court, as always, is politically biased in enforcing its dictum. Back in 2001, for instance, it deemed it reasonable for Prime Minister Ehud Barak’s lame-duck government to reward PLO chairman Yasser Arafat for launching the Second Intifada by offering him most of the West Bank, the Gaza Strip and half of Jerusalem, despite overwhelming public opposition. But doing something all Israelis consider essential, like earmarking funds for new hospitals or roads? Absolutely not.

Had the court simply upheld the law and allowed lame-duck governments to exercise their full powers, Israel would not have accumulated such a long list of unaddressed burning issues over the past year, and a critical mass of anti-Netanyahu voters wouldn’t have concluded that any government—even one headed by a man under indictment—was better than none at all. In other words, with its own hands, the court created the very problem that may now result in a government willing and able to enact legal reforms that the court itself bitterly opposes.

Reasonable people can disagree over whether that outcome would be good or bad for Israel. But it would undeniably be poetic justice.

This article was originally syndicated by JNS.org (www.jns.org) on March 4, 2020. © 2020 JNS.org