Israeli democracy is in critical condition.
Sunday, the High Court of Justice ruled that the government’s natural gas policy is unlawful. The policy, which was negotiated with foreign energy companies, was to be the basis for developing the massive offshore Leviathan gas field. It was supposed to anchor future gas prices, ensure gas revenues for the government and energy security for the country in the coming decades. On the basis of this policy outline, the government negotiated deals to supply natural gas to Egypt, Turkey and Jordan.
Given the enormous cost of developing offshore gas fields, the policy, which was determined in close consultations with legal experts and regulators, determined a base price for natural gas that would be frozen for 10 years. The point of the price freeze was to encourage investors to take the financial risk of exploring and developing Israeli fields. The price freeze guaranteed them a minimal profit on their investment.
In a healthy democracy, the court would never have agreed to adjudicate the populist petition against the government’s gas policy submitted by a consortium of radical NGOs.
Under normal rules of standing that apply in every other mature democracy in the world, the petitioners would have had no right to submit their petition.
In states not controlled by a legal junta, as the people’s elected representative it is the government’s sole prerogative to determine the state’s energy policy and to sign deals with foreign governments and investors.
But in Israel, the court gives standing to whoever it wants. Given the radical pedigree of our justices – who have engineered a process where they appoint themselves – it was not surprising that the court permitted a group of unelected radicals to petition to destroy Israel’s energy sector, and to cause the loss of hundreds of billions of shekels in future revenue to Israeli society.
Recognizing what was at stake, last month Prime Minister Benjamin Netanyahu took the unprecedented step of testifying before the High Court of Justice in defense of his government’s gas policy.
Rather than rise to the occasion, led by Justice Elyakim Rubinstein the justices acted like spoiled teenagers.
After Netanyahu finished speaking, Rubinstein whined that the justices already knew Netanyahu’s arguments by heart. Netanyahu, he clearly implied, was wasting their time defending a policy it had taken him months to negotiate and to which Israel’s economic future is tied.
Although the justices intimated a month ago that they would reject the price freeze clause and so scupper the entire policy outline, many refused to take their threat seriously. The notion that the court would reject the government’s right to determine Israel’s energy policy and rule in a manner that endangered energy supply agreements the government negotiated with three foreign governments was so mindboggling that commentators assumed that the justices were bluffing.
But they weren’t. In response to Sunday’s ruling, Netanyahu said, “The Supreme Court’s decision is a grave threat to the development of Israel’s gas reserves.” Netanyahu noted, “Israel is seen as a country with exaggerated judicial involvement in which it is difficult to do business. Certainly, no one should celebrate that the gas may remain deep under the sea and that hundreds of billions of dollars will not reach Israel’s citizens.”
The immediate result of the ruling is that Israeli consumers will be forced to pay higher prices for energy. The only investors who will likely be willing to operate under conditions where the government is unable to negotiate binding international agreements are the ones who are already stuck here.
Noble Energy and its Israeli partner Delek Energy, which are currently operating the Tamar offshore gas field, which they developed at great cost, will maintain an effective monopoly over gas production in the coming years.
Due to the court’s ruling, the mammoth Leviathan gas field will probably not be developed at all.
Who in their right mind would take the risk now? Consequently, Israel will be completely dependent on the Tamar field to the detriment of consumers and its energy security. It will be unable to export gas to its neighbors who negotiated deals in good faith.
The wider implication of the court’s ruling is that foreign investors in every economic sphere will steer clear of Israel altogether. After all, no responsible investor will invest in a country where at any given moment, in contravention of basic democratic norms and practices, unelected judges can be expected to change the rules of the game.
And they aren’t the only legal dictators disenfranchising the public.
The day before the court took control of Israel’s economy and foreign relations, Attorney General Avichai Mandelblit decided that ministers do not have the right to decide how to spend their budgets.
Last year Culture and Sports Minister Miri Regev moved to freeze government funding of the Almidan theater in Haifa. Regev acted after Almidan decided to stage The parallel time, a play based on the writings of a terrorist serving a life sentence for kidnapping and murdering IDF soldier Moshe Tamam in 1984.
The play, which portrays the life of the terrorist in Israeli prison, glorifies terrorists and terrorism.
Almidan petitioned the court to force Regev to reinstate its public funding. Mandelblit decided that her action would not be upheld in court and forced her to reach a deal with the theater to reinstate its public funding. In other words, Mandelblit decided – as a surrogate for the court – that ministers do not have the authority to run their ministries.
For the past 25 years, supported by the radically biased media and the multi-million dollar industry of foreign-funded NGOs, the court has seized more and more governing powers and prerogatives from Israel’s elected leaders.
It has seized the IDF’s power to make operational decisions. It has seized the Israel Lands Authority’s power to determine its policies for allotting state lands. It has seized the government’s power to enforce border controls, determine education, health, consumer protection, incarceration and commercial policies.
In other words, over the past 25 years since then Supreme Court president seized dictatorial powers from Israel’s weak and unsuspecting lawmakers, the court it has taken over every aspect of Israeli governance. And as Mandelblit’s refusal to defend Regev’s funding decision before the court illustrates, most issues don’t even need to be adjudicated by the court for the court’s radical positions to dictate government policies.
Through the attorney general and his army of legal advisers in every government ministry, national authority and the military, the court’s uniformly radical, socialist and post-Zionist positions reign supreme in all aspects of governance and legislation.
If anything good is to come of this week’s scandalous events, Netanyahu must stand up to the legal fraternity now. He must act immediately to pass legislation to curb the court’s authority and restore the powers of the public’s elected representatives.
If Netanyahu acts, he can restore Israeli democracy.
If he fails to act, he will go down in history as a full accomplice in the legal fraternity’s destruction of freedom in the Jewish state.