High Court Justices Leery About Netanyahu's Multiple Ministries

Justice Hanan Melcer says the prime minister’s holding of the communications portfolio undermines the separation of powers.

Justice Hanan Melcer at the Supreme Court in Jerusalem, October 2015.
Olivier Fitoussi

The High Court of Justice ruled 4-1 this week that Prime Minister Benjamin Netanyahu could continue holding his four other portfolios, but three justices said they might revisit the issue if the problems caused by his multiple positions weren’t solved.

The dissenting justice, Hanan Melcer, said the prime minister shouldn’t be allowed to hold multiple portfolios and particularly criticized the fact that one of those portfolios was communications.

“Given that the prime minister heads the executive branch, his activity as communications minister prime facie undermines the separation of powers because the media in the modern world is considered a kind of fourth branch,” Melcer wrote.

“This is an unseemly return to the days when the Israeli Prime Minister’s Office was responsible for the electronic media; this was considered a flaw in our democracy.”

He said Netanyahu’s control of this portfolio seemed to “disregard the fact” that laws have since been enacted to guarantee the independence of the two agencies that govern the electronic media – the Public Broadcasting Authority and the Second Television and Radio Authority. The latter oversees private television and radio stations.

“This undermines freedom of the press as a fundamental right, without meeting the requirements of the limitations clause,” Melcer wrote, referring to a clause in the Basic Law on Human Dignity and Freedom.

The limitations clause says the rights guaranteed in the Basic Law can be infringed only by “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” The High Court has long asserted the right to overturn any government decision that infringes on these rights without meeting the clause’s requirements.

The problems posed by Netanyahu’s tenure as communications minister are compounded by the fact that this ministry is the only one for which he hasn’t appointed a deputy minister to run it de facto, Melcer added.

But the other four justices – Supreme Court President Miriam Naor, Deputy President Elyakim Rubinstein, Salim Joubran and Neal Hendel – disagreed with Melcer. The majority opinion ascribed no special importance to Netanyahu’s role as communications minister; it simply focused on whether the premier could hold multiple portfolios.

The petition, filed by the centrist Yesh Atid party, had argued that the prime minister was not authorized by law to do so, but the majority justices said the lack of explicit authorization did not mean the practice was forbidden.

The justices did say it was legitimate to ask whether it was reasonable for Netanyahu to hold so many portfolios, but since the petition didn’t raise this issue, they didn’t rule on it.

“The situation we’re currently in – in which the prime minister is in charge of several ministries for an unlimited time, without explicit authorization in the Basic Law [on Government] – is problematic,” wrote Joubran. “I am skeptical about whether this situation is appropriate in a democratic system of government.”

In addition to the Communications Ministry, Netanyahu also heads the Foreign Ministry, the Economy Ministry and the Regional Cooperation Ministry.

Rubinstein said the current situation was “approaching the danger of deteriorating into unreasonableness” so extreme as to be illegal. Consequently, Rubinstein, Hendel and Melcer all ruled that if questions about Netanyahu’s multiple portfolios weren’t resolved, the court could revisit the issue.

Aside from the issues raised by Melcer, Attorney General Avichai Mendelblit is currently examining other potential legal difficulties posed by Netanyahu’s tenure as communications minister. The main one touches on the potential conflict of interest created by Netanyahu’s ties with Shaul Elovitch, owner of the telecommunications giant Bezeq.

In November, people familiar with the Bezeq-owned news website Walla said it gave favorable coverage to Netanyahu and his wife Sara when the Communications Ministry was poised to make decisions that could affect Elovitch’s business interests. The Justice Ministry’s Counseling and Legislation Department is said to have recommended to Mendelblit that Netanyahu be barred from making any decisions on Bezeq or other businesses controlled by Elovitch.