Emerging From The COVID-19 Into The High Court

Emerging from COVID-19 Into the High Court

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On Sunday, for the first time, the number of infections in Israel has dropped. While over 16,000 have been infected, and over 230 died, the number of seriously ill has dropped as has the number of people on respirators. Israel is beginning to emerge from the COVID-19 isolation.

One million school children from first to third grade have returned to school in Israel.
More grades will return by May 15th. Tens of thousands of Palestinian workers have returned to their jobs in Israel, albeit after having their temperature taken and given a mask.  Grandparents are now allowed to visit their grandchildren. Beauty parlors and barbershops also reopened with staff and customers all wearing masks. For the first time the number of infections has dropped.

The Ministry of Health has approved those openings. That ministry is at odds with the Ministry of Finance, that has proposed a four-stage plan to emerge from the lockdown but without specifying dates.

In the Finance Ministry’s first stage,  malls and outdoor markets will open, and Palestinian workers from the West Bank will be allowed to return to construction jobs in Israel.
For the second stage, group classes and community centers will be opened, but swimming pools in the centers will remain closed. Non-medical health treatments, such as physiotherapy, will be allowed, and nature preserves and museums will reopen, said the report, which did not cite its sources.

In the next stage, movie theaters, theaters for plays, fitness centers, essential flights, auditoriums, restaurants and bars will open for business. Lastly, night clubs, swimming pools, water parks and amusement parks will be opened to the public.

The Health Ministry wants to wait to see if there is a new wave of infections before opening up the country any more. The Health Ministry says the next two weeks will be critical. If more infections arise because of the loosening of the restrictions, then the restrictions would be reimposed.
The Israeli public is straining at the leash. According to police reports more and more people were ignoring the restrictions. On Shabbat, the parks were busy with people still respecting the social distancing rules. However, not everyone wore a mask.

In one park on Shabbat, parents allowed their children to play on the forbidden swings and monkey bars and teeter-tooters. When another a family of friends came by, the father of the first family called out laughing, “Look, see our young criminals.”

According to Israel Channel 12 health commentator Dr. Gabi Barabash, social distancing was more important than the isolation in apartments. As an aside, he also said that once infected a person could not be reinfected in the short term. Those who appeared to be reinfected were probably diagnosed as the result of a test that was taken while they were ill and the results appeared only after the patient was well.

The Israeli cabinet is still deciding on rules for the behavior during the epidemic. Later today, the cabinet is slated to approve outdoor gatherings of up to 20 people, in a decision that will go into effect immediately,  according to the office of Interior Minister Aryeh Deri. Deri represents the ultra-orthodox Shaas party. Some ultra-orthodox rabbis have already ignored the regulations and opened up their Yeshivot. Although they claimed on Israel TV they were enforcing social distancing and wearing masks, the TV footage did not support the claim.
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High Court of Justice Special Session

Meanwhile, the political crisis continues. Yesterday, Israel’s High Court, sat in an extraordinary televised live session of 11 judges out of 15. The judges all wore masks and plastic dividers separated them.  The court heard motions to clarify if temporary PM Netanyahu could form a coalition while under indictment for three felonies. “Netanyahu has been charged with fraud, breach of trust and accepting bribes in a series of scandals in which he is accused of offering favors to media moguls in exchange for favorable press coverage. He denies the accusations and says he is the victim of a media-orchestrated witch hunt,” wrote Ynetnews.

Attorney General Mandelblit, who indicted Netanyahu, said he saw no legal reason why Netanyahu could not serve as Prime Minister. Observers say the court will be hesitant to interfere with Netanyahu becoming prime minister since the public elected him and the Knesset was set to ratify the coalition agreement of 75 Knesset members. The court has been criticized by Netanyahu’s Likud and others of subverting democracy by taking the decision who would be prime minister out of the hands of the people.

According to YnetNews, “Netanyahu and his allies have long considered the high court a liberal bastion that overreached its boundaries to meddle in political affairs, accusing it of undermining the will of the people as expressed in national elections. His opponents regard the court as the final safeguard of Israeli democracy that has been under dangerous assault from demagogic populists.”
According to AP, Netanyahu is eager to remain in office throughout his trial, using his position to lash out at the judicial system and rally support among his base. The coalition deal also gives him influence over key judicial appointments, creating a potential conflict of interest during an appeals process if he is convicted. No one has forgotten that Netanyahu’s trial is scheduled for the end of May.

However, on Monday, the second day the court sat, the court heard motions concerning the legality of the coalition agreement between the Likud and the Blue and White party.  The agreement was ostensibly drafted as an ’emergency government’ because of the COVID-19 epidemic. But the epidemic appears to be nearing the end. The agreement allows for delaying appointments, and changing rules, over a six-month period due to the epidemic, and perhaps extending those rules over three years that the government is to be in power.

There was an obvious irritation by the court on many of the items in the coalition agreement, including changes in the Basic Law (Israel’s version of the constitution. Israel does not have a constitution and the Basic Law is used instead.) The court appeared concerned that changes in the basic law to allow the rotation would violate the Basic Law. In the agreement not only would there be a rotation after 18-months, but the outgoing Prime Minister, in this case Netanyahu, would still be a Prime Minister but in a secondary position. How can you have two prime ministers, the court asks?
Only if the basic law is changed, said analysts.

The deal, and the new law,  calls for Netanyahu to serve first as prime minister and Blue and White’s Gantz as the designated premier, with the two swapping posts after 18 months. The new position of ‘designated premier’ will enjoy all the trappings of the prime minister, including an official residence and an exemption from a law that requires all public officials, except a prime minister, to resign if charged with a crime. In this case Netanyahu would be exempt from resigning for 36-months, or so he hopes, said one analyst.

Deputy Chief Meltzer (left) Chief Justice Esther Hayut (right)

The court also questioned Netanyahu’s attorney Rebelo why key government appointments like Chief of Police had to wait six months or more as part of the ’emergency government.” Why not appoint these key positions immediately after the government is formed? Why wait?

Then there was the question asked yesterday what would happen if the Knesset voted to ban Netanyahu from becoming PM because of the indictments? “I asked you yesterday for an answer and you didn’t have it. Do you have it today?” asked deputy chief justice Meltzer. Netanyahu’s attorney Rabelo tried to get out of the answer, according to the Channel 11 political analyst, but Meltzer pushed until he got an answer.  ” If that happened, warned Netanyahu’s attorney Rabelo, it would be illegal and the country would go right to new elections.”

There were other items in the agreement, like the “Norwegian Law” that allows any MK who is appointed to a cabinet post to resign temporarily from the Knesset, thereby permitting the next candidate on the party’s list to enter parliament in their place. The court said that the public elected one list, and specific people, and it would be unfair to substitute someone who was not elected.
Chief Justice Esther Hayut ordered Blue and White attorney Bar-On to provide a legal justification for the law within the next 24 hours. Bar-On agreed. After that exchange and the court’s lunch break, Blue and White issued a statement that they were considering cancelling the request to keep the Norwegian law in the agreement

The court also objected to the bloated cabinet with 36 ministers and four deputy ministers, something not seen before.

When the petitioners rose after the lunch break to present their case, against the yet-to-be passed legislation sanctioned by the unity deal, Justice Menachem Mazuz says they’re “irrelevant” to the hearing at hand.“They are political, moral, public arguments… speeches that don’t have a connection to the legal level.. and are irrelevant here,” Mazuz said. The court hinted that it could not rule on the unity government agreement until all the terms have been finalized and the agreement ratified by the Knesset. In other words, the court may refrain from ruling on the agreement at this time.

Most analysts expect the court to rule on the petitions by Thursday, the day the Knesset is scheduled to adjourn for the summer.  Thursday marks the deadline for presenting a new government before new elections are called. If the court rules they have no objection to the coalition agreement until it is ratified, then Netanyahu can go to the Knesset before it adjourns and form a government.

If the coalition agreement is not ratified by the Knesset before the summer break then new elections would be called for sometime in August.The fourth in a year. That would mean, say analysts, that nearly two years would have passed since Netanyahu called for new elections and since Israel last had an elected government.