The Jewish state’s High Court of Justice heard arguments yesterday about whether Prime Minister-designate Benjamin Netanyahu should be allowed to form a new government despite the fact that the attorney general intends to indict him on charges of corruption. Previously, the court asserted that it is empowered to issue such a ruling, even though no law prohibits an indicted politician from serving as prime minister. If the court concludes that he cannot serve, the near-inevitable result would be to render the most recent election, like the two that preceded it, inconclusive—meaning that a fourth would take place in the fall. In March, before the current coalition was formed, David M. Weinberg warned of the possibility of such an intervention. He has republished his column on the subject, as it is now even more relevant:
The court is fond of a newfangled term that [its] former president Aharon Barak concocted, called “essential democracy,” which it contrasts to pedestrian “functional democracy,” where the ballot box is supreme. This means that the court takes on itself a made-up responsibility to set “essential” norms and standards of “decency” for public life, and to apply “broad interpretations” of the law to fit its own perceptions of “reasonability,” “values,” “balance,” “equality,” and “propriety”—even if the law books don’t contain any such terms or prescriptions.
The Israeli public decided [at the ballot box] that Netanyahu can be prime minister and a defendant at the same time. After all, the Blue and White opposition party made this the central issue of its campaign [but won fewer seats than Netanyahu’s Likud].
The Supreme Court already has invented gobbledygook terms like “the enlightened values of essential democracy” based on “objective purposes” of the law. This means disconnecting law from the “subjective” intentions of lawmakers and supplanting them with the “objective ends” of democracy as dictated from on high. In my view, the court mustn’t dare arrogate to itself powers which blatantly usurp and undermine Israeli democracy. It would cause a constitutional crisis that could rip apart Israeli society, and it might destroy the court itself.
Read more on David M. Weinberg: https://mailchi.mp/51469222e18c/sage-warnings-by-david-m-weinberg-3483122