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Honorable President, the fort may not have fallen, but it certainly began to crack

The High Court's decision to outright reject the petition against the imposition of the mandate by the president is tantamount to a contemptuous whistle for the Supreme Court's legacy. In choosing not to hear petitioners claiming a flaw in the decision to leave the government train in criminal hands

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• High Court

• Supreme Court

• Benjamin Netanyahu

• Reuven Rivlin

• Esther Hayut

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Friday, 23 April 2021, 11:55

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In the video: Rivlin imposed the mandate on Netanyahu - "not an easy moral and value decision" (Photo: GPO)

This happened almost a year ago, when the petitioners' representative, Adv. Dafna Holtz Lachner, passionately argued in front of a panel of 11 judges why the imposition of the government train mandate on MK Benjamin Netanyahu should be canceled due to his criminal guilt. Holtz Lechner quoted former Prime Minister Menachem Begin as saying: "Independent law is in fact the last fortress of human freedom today ... In the fall of the court of justice there is no longer a savior for a person eroded between the millstones of power." Supreme Court President Esther Hayut erupted in rage and erupted: "No fortress is falling, it's populism. It is impossible for one side to stand here and say that if we do not accept its position the fortress has fallen."

Technically, animals are of course charity - it is clear that the question of the strength of the fortress is not examined in the learned result of the judges.

After the sweeping verdict was passed, 11 judges facing a minority opinion, there were those who thought, and I am among them, that the Supreme Court of Animals is moving away (each man will decide for himself whether it is good or bad) from the Supreme Court of Shamgar, Barak, Beinisch certainly, but Also from the court of Miriam Naor.

Wasn't there even one judge who would think differently?

Despite this, I still did not think it was the collapse of the fortress.

But what happened earlier this week is much more than a gradual change in the Supreme Court's approach from a policy of activism to conservatism.

The decision given on Sunday by three incumbent judges resembled in my eyes a motion of repeal, not to mention a contempt whistle, not only at the legacy of the Supreme Court, but actually at present things uttered by the colleagues of those judges just a year ago.

Read more on the subject

• Mandelblit to the High Court: There is no reason for judicial intervention in imposing the mandate on Netanyahu

• Rivlin imposed the mandate on Netanyahu: "The decision is not easy morally and ethically"

• Do not compromise on unsatisfying sex life: this will improve performance

Their decision expresses more than a gradual change of attitude of the Supreme Court.

High Court hearing (Photo: Paul Photographers, Yossi Zamir Globes)

To understand the story we will go back a year back to May last year.

President Hayut then took the hearing very seriously, and as will be recalled, set up a very expanded panel of 11 judges.

Moreover, due to the great public interest and constitutional importance, the President made it possible to bring cameras into the discussion so that the public could see with their own eyes, without intermediaries, the process of clarifying the issue.

Immediately after the hearing began, some of its dominant judges (mainly Hayut, Meltzer and Mazuz) repeatedly stressed to petitioners that the hearing did not examine the issue of President Reuven Rivlin's authority to impose the mandate on a criminal defendant.

This is because, in essence, he did not give the mandate to Netanyahu on Tuesday, but the Knesset.

Reminder for those who forgot: After Bnei Gantz failed to form a government at the time, the president did not use his authority to impose its train on another candidate (Netanyahu), but moved on to the next step in the Basic Law: The Government - allowing the Knesset to present 61 candidates for a particular candidate.

In such a case, the judges reiterated, the president's role is purely technical.

Why was it so important for the judges to emphasize this point?

We understood this in the judgment.

In the same ruling, known as the "11: 0" ruling, the judges explained in detail that what was in front of their eyes was the question of the court's intervention in a "political decision" (the Knesset is the party that decided), and not an administrative decision.

They stressed that they had not examined the question of the president's discretion.

The judges explained, and rightly so, that the resin of intervention in a political decision is much higher than the threshold of intervention in an administrative decision.

The decision to dismiss the petition to impose the mandate on him was poor.

Netanyahu, this week (Photo: Flash 90, Yonatan Zindel)

"The time when 60 Knesset members raise their hands in support and trust in the newly formed government," Judge Yitzhak Amit explained, "is the decisive time when Knesset members express the will of the majority of voters according to the irrevocable power of attorney entrusted to them. Court intervention at this point in time And in this democratic process, it is like a frontal clash with the will of the voter. "

Judge Anat Baron emphasized: "I do not express an opinion on the nature and scope of the discretion exercised by the president in the case of the imposition of the work of the government train." Judge Hanan Meltzer added: "The president may also take into account the fact that against the candidate who was offered to him, an indictment was filed, attributing to him serious offenses of chastity."

After all this, logic said, that if one day a petition is filed against the imposition of the mandate by the president, and not by the Knesset, the chances of the High Court intervening, even if it is still low, will be higher than it was after the petition on Tuesday. In such a case, it was clear that the discussion would focus on other questions, chief among them the question: Is the president not protected by such high court petitions, and is it possible (as in pardon matters, for example) to "indirectly attack" the president's decisions?

In any case, the texts of most of the judges in that hearing left no room for doubt that such a petition, when it arrives, is likely to be examined seriously, seriously and certainly no less than the first.

The petition arrived earlier than expected

Well, day from day one came pretty quickly. It will be recalled that after the last election, on Wednesday, President Rivlin, as the one who froze a demon, imposed the mandate on Netanyahu. Holtz Lachner and the other petitioners, who were echoed by Justices Meltzer, Mazuz, Baron, Amit and Hayut, rushed to receive relief from the High Court again. Was there a real chance in the first place for this petition? In my opinion no, we already understood the direction Those who estimated, including the Knesset, that this time the result will not be 11: 0.

What actually happened is inconceivable.

Carrying animals either being passive, or perhaps actually being active behind the scenes, did not at all build an extended composition based on the order of seniority (seniority), as for the first time.

The petition this time was directed to a panel of three judges: Mintz, Elron and Kara (11th, 10th and 12th places in the seniority).

The three judges, mind you, decided not to hold a hearing on the petition at all, but to dismiss it outright.

The person who wrote the decision was Judge Mintz, who was the most extreme in his wording out of the 11th panel, in dismissing the petition.

The outright rejection of the judges will be spent on the costs of the petitioners in the amount of NIS 5,000.

Was forced to impose the mandate on Netanyahu.

Rivlin, this week (Photo: Government Press Office, Kobi Gideon, GPO)

In the meager four-page decision to outright dismiss the petition, Mintz refers to Judge Meltzer's comment on the president's discretion. "Although in special situations the opinion was expressed that the President may consider additional considerations by virtue of the broad discretion conferred on him ... The petitioners did not point to a defect in the exercise of the authority given to the President," Mintz wrote, adding: "Needless to mention that the President has a unique status. "In the institution of the presidency, there is a special symbolism, and the president is also completely immune."

Judge Mintz's remarks are not unfounded, of course, some may be true, but was it not appropriate to hear at the hearing the petitioners who think there is a constitutional-moral defect in a president imposing a mandate on a criminal defendant?

Who knows, perhaps in such a complex and charged issue the petitioners will sharpen things in a hearing that the judges did not pay attention to?

How for God's sake did we slide so fast from a live showcase hearing, with 11 judges in the senior order, which dealt with an exceptional case where the Knesset actually imposes the mandate on one of its members, to such a legal wave by three judges who are down the seniority?

(Things, God forbid, do not come out of contempt, after all, everyone down the senatori reaches the summit at the end. It is only a matter of seniority), and this is precisely the main issue - the imposition of the mandate by the president on a criminal defendant?

More on Walla!

High Court rejects petition against imposing mandate on Netanyahu: "Sensitive political period"

To the full article

How exactly did this legal case become non-personal in terms of animals? How exactly does this match her and her colleagues' texts in the original judgment? After all, those who read them got the clear impression that if they discussed the issue seriously, it was easy and material that the imposition of a mandate by the president on a criminal defendant would be seriously discussed. How did it happen that the petitioners, who had been summoned by the judges the previous time to petition again when the right moment came, suddenly became legal troublemakers, so much so that the judges awarded them legal expenses?

As stated, even if there had been an in-depth discussion within the walls of the court on the issue, as it should have taken place, it can be assumed that it would have ended in the rejection of the petition, but what is the meaning of the judges' contempt for the petitioners?

Towards the issue?

In the Supreme Court of Shamgar, Barak, Beinisch, Grunis and Naor, after the State of Israel went to the polls four times because it was a hostage of a criminal defendant, would not at least have held a hearing on the petitions?

Add to that a number of decisions Mintz has meanwhile also rejected outright another petition, this time for incarceration), indecisions, statements and non-statements (as in the Israel Prize case very recently, of the Supreme Court 2021 - so yes, you could say, Honorable President of the Court Supreme Court Justice Esther Hayut, that the fortress may not have fallen, but it seems that it has certainly begun to crack.Baruch

Kara is the legal commentator for News 13

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