Attorney General Tells Court No Reason to Block Netanyahu From Forming Government

Mendelblit cites 'significant difficulties,' but insists ahead of High Court hearing next week it shouldn't interfere with Netanyahu-Gantz unity deal

Netael Bandel
Netael Bandel
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Attorney General Avichai Mendelblit gestures while speaking at a Knesset committee, February 2020.
Attorney General Avichai Mendelblit gestures while speaking at a Knesset committee, February 2020.Credit: Emil Salman
Netael Bandel
Netael Bandel

Attorney General Avichai Mendelblit told the High Court of Justice there is no legal reason to block Prime Minister Benjamin Netanyahu from forming a government, as the court prepares to hear petitions against the coalition agreement between Netanyahu and Benny Gantz, and against allowing a person who is under criminal indictment – as Netanyahu currently is – to form a new government.

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Israel’s single-use coalition will serve Trump and protect BibiCredit: Haaretz

According to Mendelblit, the petitions point to "significant difficulties," but they don't constitute a valid legal reason to undo the agreement or prevent Netanyahu from heading the proposed unity government.

Mendelblit also told the court he thinks all petitions against the proposed agreement should be rejected, adding that looking into the legality of its components "should be done at the time of executing it."

In his legal opinion, Mendelblit listed "warning signs" in the agreement, which he said should be taken into account when turning the deal into actual legislation. These include giving the government more authority over the parliament and shifting power to the coalition at the expense of the opposition.

Mendelblit has so far refrained from providing an official stance on the legal implications of nominating an indicted lawmaker to form a government, as Netanyahu hasn't been formally tasked with doing so. 

Israel Supreme Court justice Hanan Melcer (center) and Supreme Court President Esther Hayut (right) during a hearing in 2019.
Israel Supreme Court justice Hanan Melcer (center) and Supreme Court President Esther Hayut (right) during a hearing in 2019. Credit: Ohad Ziegenberg

For the same reason, the High Court refused so far to hear petitions against tasking Netanyahu with forming a government, but the unity agreement with Gantz changed that.

The President’s Office also filed its response to the petitions on Thursday ahead of the High Court hearing on Sunday and Monday, only saying the issue is not part of the president's authority.

Supreme Court President Justice Esther Hayut announced on Tuesday that an extended panel of 11 out of the court's 15 justices will hear the eight petitions.

Earlier on Tuesday, Netanyahu's Likud and Gantz's Kahol Lavan submitted their official responses to the petitions, arguing that the High Court must not intervene in political matters.

On the issue of whether a person who is under criminal indictment can form a new government, Kahol Lavan wrote that it would be appropriate for the legislature to decide. The Knesset is to deliberate the conditions to determine the suitability of a Knesset member who has been given the role of forming a new government, the party's response claimed, and as of now, the petitions should be denied.

In addition, the petitions should be struck down because the court should not intervene in legislative processes before they have come to an end, said Kahol Lavan. “The court’s intervention in political agreements should be done with great caution,” said the party.

“The very special circumstances that were dictated because of the combination of the coronavirus pandemic, the constitutional crisis and the requirement to heal Israeli society and reunite the ranks after a long period of polarization, required difficult decisions and many compromises that have led to a collision of values,” wrote Kahol Lavan. 

Case 1000.
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The response of Netanyahu and his Likud party to the High Court said that in a democracy, it is the people who decide who will lead them. Hearing the petitions will shatter the principle of separation of powers and the system of checks and balances in a democratic country, their response said.

“There is no place to grant this honorable court … to come in place of the voting public and discuss issues such as these. This is an entirely political matter that needs to be decided only by the public and its representatives in the Knesset.”

As for the formation of a new government by a person under criminal indictment, Likud said that over the years candidates who are under indictment have been elected to the Knesset, and they were allowed to run. Therefore, no justification exists to rule out the ability of a MK to receive the mandate to form a new government from the president, said Likud.

As for the details of the coalition agreement, Likud wrote that “it would be appropriate to mention that this has historically been the position of this honorable court, which saw disagreements on the matter of political agreements as disagreements that are not at all judiciable.

The coalition agreement, with all its sections and appendixes, meets the standards of the fundamental principles of the State of Israel and the honorable court must not put itself into the political arena and intervene under these circumstances.” 

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