The High Court of Justice picked apart the coalition agreement between Gantz's Kahol Lavan party and Netanyahu's Likud on Monday, in the second day of discussions over the broader topic of Prime Minister Benjamin Netanyahu's continued role in government.
In a session that lasted nine hours, an expanded panel comprising 11 of the court’s 15 justices heard petitions against the coalition agreement. The session was broadcast live due to its significance.
The court is expected to deliver its verdict by midnight on Thursday.
At the conclusion of the debate, Supreme Court President Esther Hayut said that "an effort has been made not only to give a conclusion - it is difficult to give an 11-judge ruling by 11 judges in this timeframe, but we want to give a summary of the decision."
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Hayut asked Netanyahu's lawyer why the agreement states no senior appointments would be made in the government's first six months. "What's the connection between the coronavirus and appointing a police commissioner?" she asked.
Attorney Rabello replied that "during an emergency, it is important to maintain the agreements between the blocs," citing the fact that this is an "emergency government."
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Justice Vogelman interjected, pointing to the fact that senior appointments have been delayed because of three elections, and warned of a period characterized by "uncertainty and direct harm to the public interest."
Justice Neal Hendel added: "If anything, an emergency like the coronavirus, which presents a challenge to the police, requires a permanent and unwavering appointment of a police commissioner – unlike the current situation."
Hayut later asked, addressing Rabello: "The gentleman says 'we will use the coronavirus period to freeze appointments' and maybe during this time you will form a team and reach agreements. But what's the connection? What explanation could there be for taking advantage of this emergency period, and then maybe form a team to alter long-standing practices? And meanwhile, there are no appointments."
Later in the session, Justice Menachem Mazuz asked one of the petitioners, attorney Avigdor Feldman, “What is undemocratic about a deputy prime minister or alternate prime minister? You may not like it, but what contradicts the basic principles of the system?” To which Feldman replied "we are currently discussing the coalition agreement and not the production of legislation."
This prompted Hayut to intervene. "The expected product under the agreement, even at present, does not constitute a suicide of democracy and thus does not justify a deviation from the rule of law that would prompt us to intervene."
Feldman then said: "True, these are not suicidal laws, but they are a fundamental change in the regime. We went to bed with one prime minister and woke up with two. It does not have to be a correction that damages democratic tissue."
Attorney Yifat Solel, who represents the Progressive Democracy Association - one of the petitioners - said: "We have chosen to focus only on what we consider to be part of a process that attempts to subordinate the Knesset to the executive branch. We have been under an emergency situation in recent weeks, and we know that an emergency is a great cushion for violations of human rights, and in this context also democratic institutions."
"The role of committee chairman is very significant,” continued Solel. "When they say that the Knesset can function properly with the opposition holding no committee chairmanships, this adds more power of the executive authority on the Knesset, and we are in a situation where the separation of powers is minimal."
Solel also addressed the issue of the Judiciary Committee. "It is puzzling to me that the issue should be discussed after the [appointment]," she said. "This is a personal choice. The principle issue says that an opposition representative should occupy one of the two Knesset seats on the [Judiciary] committee.”
Earlier, Netanyahu's attorney asked the court to "act with restraint and not intervene" in the coalition deal, as it was signed during a time of crisis. He stressed the many difficulties that accompanied the negotiations, saying that "there isn't much trust" between Likud and Kahol Lavan. The two sides, he added, concluded that this path was the right one to maintain the government's stability.
Netanyahu's attorney also told the judges that Likud is willing to forgo the clause which says only a majority of 75 lawmakers can annul the rotation agreement between Netanyahu and Gantz. Rabello added that Likud is willing to forgo the so-called Norwegian “skipping” Law – which would allow Kahol Lavan ministers to resign from the Knesset and be replaced by Knesset members limited to Gantz’s faction.
Kahol Lavan Attorney Shimon Baron said at the hearing that finalizing a coalition deal "took a very long time, despite public criticism, despite long processes… at the end of the day this is no one's dream government." He added: "The sides rose above the political situation and [produced] a document that reflects more or less their will to reach a national unity government and at this time, also an emergency government."
Justice Hayut asked for the party's position on the so-called Norwegian “skipping” Law, meant to effectively allow Gantz's party to pave the way for bringing in more lawmakers from their faction into the Knesset. Baron replied that Kahol Lavan stands by the inclusion of that law in the coalition agreement.
Hayut criticized the law, saying that "the context is clear: People voted for one list and got another… it's like that show on TV where you first you get married and then comes the courtship." To this, Baron replied: "It's like 'Survivor.'"
Justice Melcer also weighed in: "What you are trying to do is change the vote after the election. The political logic is different than the legal logic. You are in fact changing the voter's decision."
Attorney Dafna Holtz-Lechner, who represents some of the petitioners, said that the main flaws in her clients' eyes are "the parts of the agreement that change the Basic Law in such a draconian, personal, and immediate way." Justice Mazuz shot back, saying the agreement "doesn't change Basic Laws or anything; not a clause nor an edict – and definitely does not constitute a regime change." The court, he added, cannot be asked to debate the intentions of the parties, but must deal only with legislation. Hayut added: "If a law was agreed upon which legislates democracy committing suicide, perhaps in that situation, or at a pre-legislation phase, there would be room for intervention. But is this the case here?"
On Sunday, the court heard a petition seeking to disqualify anyone under criminal indictment from serving as prime minister, which would prevent Netanyahu from serving in light of the criminal charges against him.
The two matters are intimately linked, as Netanyahu's Likud party only won 36 Knesset seats out of 120 in the last election, and prior to the deal with Kahol Lavan, did not have a necessary majority in the Knesset to form a government.
The state touched on the coalition agreement on Sunday, when it argued that Netanyahu should not be able to make key law enforcement appointments while facing trial, as this would pose a conflict of interest. The deal gives the Likud leader veto power on appointments of the next attorney general and state prosecutor.
“The prime minister’s position is unacceptable to us,” Attorney Aner Helman, representing the Prosecutor's Office. told the court. Netanyahu’s lawyer, Michael Rabello, responded by saying his client had no intention of intervening in such appointments.
'No one is addressing the moral issue'
The constitutional argument around the legality of Netanyahu's position is complex. It centers on whether a 1993 precedent, which bars cabinet ministers from remaining in their posts if facing criminal charges, should extend to the premiership.
Netanyahu's defense argued that what takes precedent in a democracy is fulfilling the will of voters, a perspective espoused by the state. "There was a general election, and although people voted for a list and not for candidates, the system in Israel requires voters to consider who will be prime minister," said Attorney Aner Helman.
For the state, the role of prime minister is different, and the law applicable to ministers is not relevant in this case - which echoes an earlier opinion by the attorney general.
Attorney General Avichai Mendelblit submitted his response to the petitions Thursday, saying that despite inherent difficulties, there is no legal impediment to tasking Netanyahu with the mandate to form a government. Mendelblit stated that the Basic Law on the Government stipulates that a prime minister’s term can be terminated only after the final disposition in the case, including all appeals. Moreover, he wrote, a previous ruling which calls for an indicted cabinet member to step down does not apply to a prime minister due to the more significant role of a prime minister.
Two separate demonstrations were held against Netanyahu in Jerusalem on Sunday, one outside his official residence on Balfour Street, and one in the Wohl Rose Garden, across from the Knesset, where a wide screen was set up to show the discussions. Protesters carried signs that read, among other things, "removing the corrupt and convicted of Balfour", "’Jobernment’ of waste" referring to job appointment promises and "When the government is against the people, the people are against the government".
“No one is addressing the moral issue, they are drowning it in a flood of legal wrangling. It would be better if Netanyahu would just come to the court and say he wants to be a dictator and to stop bothering him,” said protester Yishay Hadas, soon after Supreme Court President Esther Hayut reprimanded the petitioners’ lawyer for saying that disallowing the petition would mean “the fort would fall."
President Esther Hayut scolded the petitioner's attorney Dafna Holtz-Lechner for claiming "an independent sentence is the last remaining fort of liberty in our days." Hayut said "whether we accept or reject the petition, no fort is going to fall. This is populism. It's inconceivable that either side will stand here and claim that if we don't accept their position the fort will fall."
The petitioners include the Yesh Atid party, Movement for Quality Government in Israel, Movement for Integrity (Tohar Midot), and the nonprofit groups Democratic Guard and New Contract.
Additional reporting by Nir Hasson.