Let the Politicians Decide
On Sunday, my January New York Times article was published. Here are a few paragraphs:
What will happen to Mr. Netanyahu? Will he be forced out because of his legal trouble?
The stories of his predecessors should help provide an answer… We know from experience that a police recommendation to indict isn’t the final word. In 1997, the police recommended indicting Mr. Netanyahu on charges of trading votes for appointments. He was never indicted. In 2004, Israel’s state attorney recommended that Mr. Sharon be indicted on charges of taking bribes. This also did not happen.
But when a police recommendation is followed by a decision to indict the prime minister, the legal water gets murky.
In a 1993 ruling, Israel’s Supreme Court made it mandatory for a prime minister to suspend a cabinet minister who has been indicted. Some legal scholars say this likewise makes it mandatory for an indicted prime minister to be suspended. But that argument is shaky, as Emanuel Gross, a Haifa University law professor, explained recently in an op-ed essay for Haaretz….
For the police, or the attorney general, to have the power to determine when a government should be replaced is problematic. It could even be dangerous. For the Supreme Court to demand a resignation of Israel’s leader over suspicions that were not yet proved in court would be similarly problematic.
Still, the lesson of Mr. Netanyahu’s predecessors is not necessarily that a prime minister has to stay in office until the very end of a legal process. The lesson, as frustrating as it seems, is that the legal experts need to step aside and leave the decision to the politicians.
The Court Can’t Devise New Kotel Plan
American Jews might find it difficult to accept, but the fact is, the case before the Supreme Court – demanding it enforces on the government an arrangement in the Kotel that the government rejected – is hardly a clear-cut case. The justices seem to understand this. They seem to understand that ruling in favor of something that the government decided against is problematic. They seem to understand that the government is entitled to craft its own version of a solution for the Western Wall, and insist on it – even if many observers (myself included) are dissatisfied with it.
The questions the justices asked yesterday, their somewhat skeptic interrogation of both sides, does not give one a way to predict with much confident what they will do. But if we must speculate, a reluctant acceptance of the government’s position is a likely result. An attempt to tell the government what it must do is not as likely. Remember: the court is much better at preventing government action than in enforcing it. It doesn’t have police force to guard the Kotel. It doesn’t have budget to build a different plaza. The Supreme Court cannot be the orchestrator of a new Kotel plan. So I’d keep my hopes down.
Legal Statements Whose Impact is Minuscule
In Moment Magazine, I wrote about whether Israel should make Jewish Law a more integral part of its legal system:
What is the role of Jewish law in the life of a Jewish state? The question might seem abstract, but the Knesset has been debating it heatedly for months, often in discussions that deteriorate into shouting matches. Two proposed laws would enhance the influence of “Mishpat Ivri,” or “Jewish law,” in Israeli law. One targets the issue specifically by mandating that principles of “Jewish law” be a point of reference for Israeli courts. The other does so within the larger context of a proposed new Basic Law (Israel’s version of a constitution) formalizing Israel’s identity as the “Nation-State of the Jewish People.”
The philosophical question about Jewish law is not an easy one to answer…. It is even harder to answer such questions in a political atmosphere that rarely allows for serious discussion and that quickly resorts to suspicions, insults, demonization and fear-mongering. In such an atmosphere, legislators often forget that their actual role is to improve citizens’ lives. Instead, they spend their time fighting about symbolic legal statements whose impact on Israel’s reality will be minuscule, if any.