Last month, Israel’s High Court of Justice struck down the deal Prime Minister Netanyahu concluded with two energy companies to begin drilling for and exporting natural gas located beneath the country’s coastal waters—a deal arrived at after more than six years of wrangling with both private corporations and the Knesset and capable of yielding considerable diplomatic and economic benefits. Akiva Bigman examines the court’s opinion, written by its vice president, Elyakim Rubinstein, and finds it irrational to the point of incoherence, arguing that it is a particularly egregious example of Israel’s imperious judiciary flexing its muscles:
While [Rubinstein] admits that there is no harm to individual rights or minority rights [caused by the gas deal], that fact does not really interest him. As far as he is concerned, the government lacks the authority to make a decision on the gas issue “since our interest is in the collective rights of the public”—as if it is not the public that elected this government. . . .
[Furthermore, Rubinstein’s] ruling includes insinuations and speculations that might be appropriate in a tabloid, but that have no place in a supreme-court verdict. . . . [To] illustrate: the Knesset [approved] the gas deal last September, and the Knesset plenum approved the government’s decision to regulate the gas market. . . . However, [Rubinstein writes] in his colorful language, . . . “[Knesset approval] will not be the source of legal salvation for the state.” Why not? “A general vote on the ‘finished product’ is not like a full legislative process with all its stages.”
Here His Honor begins to tell a tale of conspiracy theories bordering on mild paranoia. In contrast to a government decision, which is apparently made in darkness, “the legislative process is transparent and in full view of the public eye,” says the supreme-court justice, elaborating: “The legislative process also limits the maneuverability of organized interest groups in their attempt to influence the administrative authority to make decisions that will serve them.”
You read this right. The vice-president of the supreme court is implicitly accusing the government of Israel of making decisions on the gas issue on the basis of inappropriate considerations. . . .
Rubinstein repeats these insinuations even more sharply later on, noting that without primary legislation, an opening “could be created . . . for institutional or personal corruption.” Furthermore, after reviewing the lengthy process that led to the agreement, which included the resignation of senior officials, the transfer of the economy minister’s powers to Prime Minister Netanyahu, and other moves, he concludes: “The cumulative circumstances raise questions and illustrate that the Knesset needs to exercise more oversight.”
This is a collection of serious, problematic, and outrageous insinuations, tacit defamation, and complete deviation from authority. If Rubinstein believes that there was any fault with the government’s conduct, if he has even the slightest suspicion of “institutional or personal” corruption, His Honor is invited to inform the police or the attorney general. . . . If he has no such concrete suspicion and no evidence that the law has been broken, let him not intervene in the actions of the executive branch. A supreme-court ruling is not an editorial in [an Israeli newspaper], and it must not become a caricature that makes a mockery of the rule of law and the elected government.
The bottom line is that, in the absence of orderly explanations, and against the background of a collection of arbitrary decisions, one gets the impression that the supreme court struck down the gas deal for one reason only: because it could.