A Legal or Political Matter?

The political system is being dragged into elections for the third time within a year, for what seem to be extraneous reasons related to the question of how Netanyahu will handle his cases.

Flash 90

In a few days, the attorney-general will announce whether he intends to take a position as to whether the president could invite Prime Minister Benjamin Netanyahu to form a government at a time when the latter is facing criminal charges.

Alongside the substantive debate on what the Basic Law: The Government has to say about this, and on the best way to balance the presumption of innocence with public trust in the government, it is often argued that the political imbroglio created by filing the indictment should be resolved by the political system, and that intervention by the attorney-general or the Supreme Court in a way that would put an end to Netanyahu’s tenure in office would inflict serious damage on the legal system.

However, from my perspective, the dangers inherent in this argument are actually greater than the dangers we are warned of, by those calling on the legal system to refrain from dealing with Netanyahu’s continuation in office.

First, the legal system’s independence impels it to act, in a way that is isolated from any political considerations, including those relevant to its own status.

The motivation behind the assertion that the legal system will be harmed if it takes a decision on Netanyahu’s future may be a positive one, stemming from a desire to protect the system. But listening to these voices will produce the same result as would pursuing the other course of action – that is, listening to the aggressive and intimidating voices trying to prevent the system from taking a decision on this issue.

The public’s confidence in the legal system will be no less undermined if the system evades its responsibility, than if it arrives at an unpopular decision. Accordingly, if the correct legal interpretation of the Basic Law requires that Netanyahu step down, the legal system must instruct him to do so, even if this harms the system’s image.

Second, the claim that the decision should be left to the political system disregards the classic role of the courts as institutions that redress failures in the political arena resulting from self-serving considerations that run counter to important public interests.

This role is integral to the system of checks and balances among the branches of government, and is the basis for the court’s occasional interventions in political appointments, in striking down laws (such as that exempting ultra-Orthodox men from military conscription) that benefit only one sector at the expense of the public at large, and in combating government corruption.

The political system is being dragged into elections for the third time within a year, for what seem to be extraneous reasons related to the question of how Netanyahu will handle the cases against him or whether he will win immunity from trial. This is an indication of the real fear of a failure of the political system, which will fly in the face of the public interest. This is precisely where the court must intervene, to defend what should be the accepted norm – namely, that a public servant accused of corruption cannot continue in office if this undermines the public’s trust in government or places the defendant in a situation of conflict of interest, whereupon he attacks the systems he is supposed to oversee.

Finally, from the practical standpoint as well, those asserting that the legal system would be hurt more by intervening to end Netanyahu’s tenure than by staying on the sidelines are unlikely to be right. Each day that Netanyahu continues to serve as prime minister, while facing charges of corruption, weakens the public’s acceptance of the legitimacy of the war on corruption, and cultivates a lenient attitude toward the phenomenon. And each day that the prime minister exploits his position in order to attack the legal system will lead only to a further erosion of the public’s confidence in it.

At the end of the day, the court will have to interpret the Basic Law, in isolation from any considerations related to protecting the legal system. It absolutely must not adopt a particular interpretation of the law in order to protect itself against Netanyahu. But the counterargument that the court should avoid interpreting the Basic Law in a proper manner, in order to protect the legal system, is also wrong. If the system buys into the argument that it must avoid applying the law to legal issues related to Netanyahu’s continuation in office, it is liable to find itself experiencing the worst of both worlds: lending support to politicization of the law and losing public confidence.

The article was published in the Jerusalem Post.