The High Court of Justice on Sunday adjourned a seven-hour hearing on whether Benjamin Netanyahu should be allowed to remain in the prime minister’s chair despite his indictment in three corruption cases.
It is set to issue a ruling later in the week, but the justices hinted that they were unpersuaded by the petitioners.
On Monday, the court will hear further petitions concerning the controversial aspects of the three-year coalition deal negotiated by Netanyahu and Blue and White party leader Benny Gantz.
Under that deal, the government’s first six months will be dedicated primarily to combating the novel coronavirus that has infected more than 16,000 Israelis and ravaged the economy.
The agreement includes profound changes to Israel’s constitutional order, some of which contradict established laws, tradition and precedent.
Between Tuesday and Thursday, focus will shift to the Knesset, where three laws are being changed by the coalition deal, two of them constitutional Basic Laws.
They must become law by Thursday, because that’s the deadline for the Knesset to name a prime minister from among its ranks or call new elections. The Knesset is unlikely to approve the new government if the legislation ensuring the rotation deal between Netanyahu and Gantz hasn’t become law.
Sunday’s hearings by an expanded panel of 11 justices were dominated first by representatives of Likud, Blue and White and the relevant branches of government, who all urged the court not to intervene in Netanyahu’s appointment. They were followed by the petitioners, who argued that the justices were obligated to step in. The High Court hearings were broadcast live.
At one point in the afternoon session, Chief Justice Esther Hayut pressed the petitioners to provide a basis for their demand that a lawmaker who was recommended by the majority of his Knesset peers to form the government be prevented from doing so.
“Show us something! A law! A verdict! From this country’s [history]! From [somewhere else] in the world! Something!” Hayut said. “After all, [you’re asking us to set] a global precedent! You want us to rule without a basis simply according to your personal opinion?”
At her side, her deputy, Justice Hanan Melcer, nodded in agreement.
Hayut also criticized one of the lawyers for the petitioners, Dapha Holetz-Lechner, for suggesting that “the whole fortress” would collapse if the court did not rule in their favor. “That claim is inappropriate,” Hayut said. “No fortress will collapse” as a consequence of the court’s ruling.
Suzie Navot, a leading constitutional law expert, said near the close of the day’s discussion that the judges appeared to intimate they would not block Netanyahu, and seemed to be conveying a message of “What do you want from us? Do you want us to legislate for you?… It’s not our job. It’s the job of the Knesset.”
Netanyahu, in power since 2009, and ex-military chief Gantz faced off in three inconclusive elections in less than a year. With neither man able to form a viable governing coalition in Israel’s deeply divided 120-seat parliament, they agreed to a power-sharing deal last month, saying they aimed to avert a fourth vote opposed across the political spectrum.
But the deal faces eight petitions challenging its validity before the High Court of Justice. Five of the eight, submitted by anti-corruption watchdog groups and others, argue that members of Knesset indicted on corruption charges, such as Netanyahu, cannot be appointed prime minister.
The morning deliberations in the High Court heard from the speakers who sided with Netanyahu, though for a variety of sometimes contradictory reasons.
“This decision is so political and complex, touching on the relationship between the Knesset and the government,” said Avital Sompolinsky, representing the Knesset’s legal department, that the court should “adopt the view that it can enter this sensitive and deeply politicized arena only in the most extreme cases.”
Aner Helman, representing Attorney General Avichai Mandelblit, said that “in the current situation, Netanyahu is not disqualified from serving as prime minister,” even as he emphasized the seriousness of the accusations the prime minister faces. He added that due to conflict of interest, Netanyahu would have to refrain from being involved in any appointments of law enforcement officials, even though the premier has previously argued he wouldn’t be in conflict of interest.
And an attorney for the Likud party insisted “the entire process” of selecting a prime minister, from the voters’ choices on election day to the MKs’ recommendations to the presidential appointment, “is a constitutional process, not an administrative one. It’s inappropriate for the court to intervene in the constitutional judgment of the people and the members of Knesset.”
Michael Ravilo, representing Netanyahu, argued that “it would have been better” were the court to have dismissed the petitions right away, rather than involving itself “in these political issues.” The will of the electorate was at stake, he argued.
“Can this honorable court replace the voters?” Ravilo asked. “If we examine the judgment of Knesset members on this issue, why stop there? Tomorrow we will check if it’s reasonable to task an MK without a university degree or one who isn’t sufficiently polite with forming the government.”
“This court’s stance is that everything is judge-able,” Ravilo claimed, prompting Hayut to interrupt witheringly: “Come on, really. This court has never stated that… This populist claim is most unfortunate.”
Avi Halevy, representing the Likud party, similarly argued that “the legislators were afraid exactly of the current scenario — that bureaucrats would file charges and thwart the will of the people.”
Blue and White’s representative, Shimon Brown, said he didn’t take the corruption charges against Netanyahu lightly, but highlighted the fact that there has been no full-time government for more than a year and three elections.
Brown argued that the court should consider that thwarting the coalition agreement would plunge Israel deeper into its worst political crisis in its history.
The court broke for a noon recess, then returned at 1 p.m. to hear the arguments by the petitioners against Netanyahu’s returning to the prime minister’s chair.
Petitioners including Eliad Shraga, founder of the Movement for Quality Government in Israel, claimed that public norms and the faith of the public in its elected representatives were at stake. Noting that existing law requires serving ministers to step down if charged in a criminal case, they argued that there should plainly be no lesser requirement on an MK about to set up a new government.
It was “unconscionable,” Shraga argued “that a man like [Netanyahu] will go in the morning to court to sit in the dock, and in the evening will manage the Security Cabinet and send us and our children to battle.”
The petitioners argued that there is a lacuna in the law, since legislators had “never imagined” that an indictment would be filed against the person tasked with forming a government.
However, the judges said that legislators had never saw fit to ban a criminal defendant from forming a government, and that the primary way to change that would be via legislation, not a court verdict.
Law professor Navot, speaking to Channel 12 toward the end of the day’s hearings, said she was inclined to think, given “the spirit” of the sessions and the judges’ various comments, that the court would not intervene on the issue of whether Netanyahu is permitted to set up and head a new government.
“It will be very hard” to envisage the court determining that concern over the issue of the public’s faith in its governing authorities was so powerful as to justify its intervention, she said, at a time when over 70 of the 120 elected Knesset members are backing a new, Netanyahu-led government.
Netanyahu was charged in January in three separate cases with bribery, fraud and breach of trust for allegedly accepting improper gifts and illegally trading favors in exchange for favorable media coverage. He denies wrongdoing and his trial is set to start May 24.
Israeli law bars an indicted person from serving as an ordinary cabinet minister, but does not compel a criminally charged prime minister to leave office unless they are convicted with all appeals exhausted.
The complication regarding Netanyahu is that he is not currently an ordinary prime minister. He has been serving as the caretaker head of a transitional government through over 18 months of grinding political deadlock.
According to some interpretations of Israeli law, that makes Netanyahu merely a candidate to become prime minister.
The deal’s opponents argue that his candidacy should therefore be disqualified by the indictments.
In an opinion delivered to the High Court last week, Attorney General Mandelblit, who indicted Netanyahu, argued there was no legal basis to prohibit him from leading a government.
The attorney general’s opinion said that while “certain arrangements in the coalition agreement raise major difficulties… at this time there are no grounds to disqualify (it).”
He advised that problematic provisions be reviewed “at the implementation stage.”
Interviewed on public radio Saturday, energy minister and Netanyahu ally Yuval Steinitz said that if the court ruled Netanyahu cannot serve, it would amount to “an unprecedented attack on Israeli democracy.”
The Gantz-Netanyahu coalition agreement is “a necessity, the result of three election campaigns and a desire among Israelis to avoid a fourth election,” he continued.
If the expanded panel of 11 judges set to hear the case deems the coalition deal invalid, Israel may be forced to hold its fourth election in less than two years.