The High Court of Justice heard on Sunday petitions asking that Prime Minister Benjamin Netanyahu be disqualified from forming a new government in light of the criminal charges against him.
In a rare move, an expanded panel comprising 11 of the court’s 15 justices heard the arguments, in a session broadcast live, due to its significance.
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Other petitions to contest the coalition agreement between Gantz's Kahol Lavan party and Netanyahu's Likud will be heard on Monday.
The state's representative in the session argued that the chief consideration that must be taken into account is fulfilling the will of voters. "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, representing the Prosecutor's Office.
Meanwhile, about 150 people demonstrated against the prime minister outside his official residence on Balfour Street in Jerusalem on Sunday afternoon. The 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". The Health Ministry's social distancing guidelines were not maintained during the protest.
In the March 2 election, Netanyahu's Likud party won 36 seats out of 120. Prior to the agreement reached between Kahol Lavan and Likud, Netanyahu did not have a necessary majority in the Knesset to form a government.
The Knesset representative said lawmakers who support a Netanyahu government are making a political decision that cannot be checked by the judiciary.
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'No fort is going to fall'
The state also argued that considering Netanyahu's pending trial, he cannot make key law enforcement appointments, as this would pose a conflict of interest. This position counters the coalition deal signed between Netanyahu and Gantz, which gives Netanyahu veto power on appointments of the next attorney general and state prosecutor. “The prime minister’s position is unacceptable to us,” Helman told the court. Netanyahu’s lawyer, Michael Rabello, responded by saying his client had no intention of intervening in such appointments.
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."
Another key matter is a 1993 ruling that requires indicted cabinet members to step down. The state replied that the role of prime minister is different, and the law applicable to ministers is not relevant in this case, echoing 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.
A constitutional headache
Mendelblit’s position has split the judicial community Prof. Menachem Mautner, a leading expert on Israel’s constitutional law and the author of a book on liberalism in Israel, believes that the attorney general’s position is correct. “I don’t subscribe to anything Netanyahu has done as prime minister and believe he has harmed this country, but the interpretation of Clause 18 in the Basic Law on the Government is that he cannot be barred from beginning his term. No other interpretation is possible” determines Mautner.
“The battle against corruption is very important, but it can’t come at the expense of the battle for human rights and the right of defendants” says Mautner. “We have to educate ourselves as a society that a person cannot be penalized before he is convicted by a court. A presumption of innocence is one of the most important principles of criminal law. Prof. Yoav Dotan has shown that there is no country in the Western world where a prime minister can be ousted only because a public servant in the state prosecutor’s office has decided to prosecute him.”
Mautner goes further than the attorney general, saying that the court cannot even debate the issue, let alone prohibit Netanyahu from forming a government. “The issue of what can come before a court has changed since the 1980s,” says Mautner. “The court can refrain from dealing with the issue as long as human rights aren’t violated. If this is the case now, it can decide that this issue is under the court’s purview. If the court disqualifies Netanyahu, what will the public reaction be? Masses will take to the streets and back those calling for a dismantling of the court. This could be done by appointing twice as many new judges, as was done during the New Deal in the United States, or by having judges retire at 60, as was done in Poland. The reaction could seriously hamper the court’s ability to protect human rights. The court is the paramount agent for instilling liberal values into Israeli culture and this could be damaged. The court should be realistic.”
“Politics is made on the ground, with people, not in the Supreme Court. Liberals are moving politics into the High Court, but the prime minister should be removed politically, not by the court. The second election was held after the indictment was filed. People knew this and still chose him. This is a weighty consideration that every liberal democratic system has to take into account. That’s democracy.”
Prof. Barak Medina, also an expert on constitutional law, believes the court should disqualify Netanyahu, saying that what applies to cabinet members necessitates this – or else they too cannot be barred from serving when indicted. Otherwise the Basic Law, which established minimal norms, is inconsistent, argues Medina. “The case is stronger when applied to forming a government, rather than terminating service,” he says. He disagrees with differences between cabinet members and a prime minister, as noted by Mendelblit. “[Interior Minister Arye] Dery also had support from the public in 1993 but the court removed him," he notes. "The question is what weight the court gives to non-legal considerations such as a fourth election if Netanyahu is disqualified, or the harm done to the court’s status, or the coronavirus crisis.”
Medina also doesn’t agree with Mautner and the attorney general with regard to arguments that the will of the voters who backed Netanyahu despite the indictment must be respected. He says that mayors, who are elected directly, are also removed from office by courts when necessary. “If Netanyahu is not barred, the clause regarding cabinet members or mayors is also annulled,” argues Medina.