Netanyahu Staying on as Prime Minister Is 'A Moral Failure,' High Court Justice Says

Justices publish reasoning for decision to let Netanyahu keep post despite trial, explaining court couldn't legally, politically bar him

Netael Bandel
Netael Bandel
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An expanded panel of 11 justices hears arguments on petition against Benjamin Netanyahu's sitting as PM, High Court, Jerusalem, May 3, 2020.
An expanded panel of 11 justices hears arguments on petition against Benjamin Netanyahu's sitting as PM, High Court, Jerusalem, May 3, 2020.Credit: Yossi Zamir
Netael Bandel
Netael Bandel

Letting a criminal defendant serve as prime minister is a moral failure, but the Supreme Court can’t legally prevent it, Israeli justices wrote in their ruling upholding Benjamin Netanyahu’s right to hold the post.

Though the ruling was handed down three weeks ago, the court published the reasons for its decision only on Wednesday.

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The 11 justices ruled unanimously that they couldn’t prevent the Knesset from choosing Netanyahu as premier despite the indictment against him, since this was a political decision that reflected the voters’ will, and no law currently prevents it.

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Nevertheless, they urged the Knesset to consider enacting legislation that would prevent such a situation from recurring. Or as Supreme Court President Esther Hayut put it in her opinion, it should pass “appropriate legislation on the issue of assigning the task of forming a government to a Knesset member charged with serious crimes involving moral turpitude, so as to grant legal validity and expression to the public and moral aspects of this issue.”

The justices discussed the problems of having a criminal defendant as prime minister at length.

Justice Isaac Amit raised the hypothetical case of “Reuven,” who became prime minister even though he was barred from serving as interior minister, a mayor or even a water meter reader because he had been indicted for bribery. This is “an anomalous situation, in which someone who can’t hold a long list of positions on the slope of the pyramid can serve at the top of the pyramid,” he wrote.

Justice Menachem Mazuz said “A situation in which a defendant charged with serious ethical crimes forms a government and heads it raises a public and moral problem whose magnitude is hard to overstate. Such a situation reflects a social crisis and a moral failure by both society and the political system.”

Justice Uzi Vogelman, referring to a 1993 ruling that barred someone charged with corruption from serving as either a minister or a deputy minister, said that for the Knesset to choose a prime minister charged with bribery, fraud and breach of trust “undermines the public’s faith in its servants, and perhaps even more than the court stated in the Dery-Pinhasi affair, given his unique and lofty status.”

Justice Anat Baron wrote that appointing a prime minister who was indicted on serious charges “doesn’t accord with the fundamental principles of Israeli democracy.”

Nevertheless, the justices said, the choice of a prime minister is a political one in which they have little room to intervene. In this, Vogelman said, it differs from the Dery and Pinhasi appointments, since those were administrative decisions by a prime minister.

Israelis watch the High Court of Justice debate whether Benjamin Netanyahu can form a new government despite the criminal charges against him, Jerusalem's Rose Garden, May 3, 2020.Credit: Ohad Zwigenberg

Justice Neal Hendel said that to overturn a political decision, “the fact it is unreasonable isn’t enough; it must be a decision that undermines the principles of the democratic system radically and fundamentally.”

Justice David Mintz pointed out that when the Knesset passed the Basic Law on Government, it deliberately refrained from imposing “any restrictions on the possibility of assigning the task of forming a government to a Knesset member charged with crimes.”

The justices also stressed the importance of the will of the voters.

Amit said that intervening in the choice of a prime minister would constitute “a frontal clash with the voters’ will as expressed by the votes of their Knesset representatives ... Effectively, it means the court’s rejection of the person who was elected prime minister by a majority of Knesset members, a constitutional nightmare that would shoot the court into the eye of the political storm.”

Netanyahu supporters protest against justice system outside the Jerusalem District Court on the first day of the PM's trial, May 24, 2020.Credit: Ohad Zwigenberg

Hendel said the problem with vetoing Netanyahu as prime minister is that “it’s not possible to say the question of who would become prime minister after the election was overlooked by the public. On the contrary, this question was at its heart.”

But the justices stressed that their ruling didn’t constitute a moral imprimatur for Netanyahu’s occupancy of the office. “The finding that there’s no legal basis for intervention in the Knesset members’ decision doesn’t meaning granting a seal of approval to it,” Mintz stressed.

Vogelman agreed, writing, “When a court refrains from intervening in any agency’s decision, the court doesn’t intend to thereby say the decision was right and proper.”

Justice Daphne Barak-Erez added that Netanyahu should have considered from the outset “whether it’s appropriate to accept the job, given the indictment against him,” and the lawmakers' support for his appointment “doesn’t absolve” him of that responsibility.

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