In his decision, made almost under protest, to grant the mandate to form a government to Benjamin Netanyahu, President Reuven Rivlin cited the moral and ethical aspects that made the decision difficult. He did not mention the legal aspect.
From a legal perspective there was one MK who could not be assigned the job, and his name is Benjamin Netanyahu, because he is accused of crimes of moral turpitude – taking a bribe and breach of trust. At first glance this statement might raise eyebrows and seemingly contradicts the High Court of Justice ruling after the last election that permitted the prime minister to take office although he was accused of crimes. But an examination of the High Court ruling shows that this isn’t the case; in fact, the opposite is true.
The court ruling did not in any way overturn the Dery-Pinhasi precedent, under which a prime minister must fire a minister charged with crimes of moral turpitude, since any other decision would be totally unreasonable. Moreover, what’s true for a minister, who cannot serve while under indictment, should be even more true when talking about the prime minister.
The justification for this precedent is the negative impact such service would have on the battle against government corruption, on public integrity and honesty, on the obligation of public figures to serve as examples and role models for public servants and the public at large, and on the public’s faith in the government’s material considerations. These consequences are even more severe when at issue is the prime minister.
In making its ruling, the High Court faced a situation in which a significant majority of the MKs – 72 – recommended to the president that he hand the task to Netanyahu. Under these circumstances, the court believed that the president didn’t have much discretion. But the court stressed the difference between the president’s authority at the last stages of a government formation, when the Knesset has already had its say, and the preliminary stages, when the president has broad and substantive discretion. The president, like any other government official and perhaps even more than any government official, must act within the law. And based on the law, the decision to give Netanyahu the mandate to form the government is unreasonable to the extreme, and thus out of bounds.
The Basic Law on the Government, which Rivlin, as an MK, was involved in legislating, allows a prime minister under indictment – or who’s even been convicted – to serve until the last appeal is heard. But this refers to the realm of eligibility, not the realm of judgment. We’re talking about two different planes. Not everything that passes the relatively low threshold of eligibility can pass the additional tier of discretion and judgment.
In this case, we’re talking about the broad discretion of the president, and it must be used reasonably, to avoid ridiculous results. Moreover, this time Netanyahu didn’t even get the support of a majority of the MKs, and the president himself knows his chances of forming a government are slim. There wasn’t even a conflict between two principles or rules.
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The High Court in its time avoided intervening because it couldn’t find a hook on which to base a decision; that is, it didn’t find a government official or agency that had used administrative judgment so that it, as the High Court of Justice, could respond. The court felt that it wasn’t proper for it to intervene in the judgment exercised by those MKs who had recommended Netanyahu – which was a clearly political decision. But for this purpose, the president, who is not a political official, is different, and Rivlin demonstrated this when he categorically refused a suggestion to mediate for the benefit of a particular candidate (the Yair Lapid/Naftali Bennett deal). His judgment is meant to benefit the state, and by virtue of this he must be supremely matter-of-fact and perfectly respectful of the law.
Unfortunately, Rivlin failed here. While difficult situations can arise when there’s a gap between a moral-ethical approach and the law, here there is no such gap. Netanyahu has been making every effort to prove that he isn’t capable of being a prime minister who puts the public’s interest first. His wild and delusional attack with which he “honored” the law enforcement system on Monday was an expression of this. His misrepresentation to the court regarding his readiness to honor a conflict-of-interest agreement (which to a great extent is why the High Court decided what it did), his ongoing refusal to sign such an agreement, his acting in contravention of the arrangement worked out by the attorney general, foiling the appointment of a justice minister and a long line of other appointments are additional examples.
It’s hard to describe the disgraceful failure of the government systems to extract the state from the talons of the criminal defendant. First and foremost, the failure of the political system, led by Likud and Netanyahu’s political allies, for whom ethical and legal considerations are like broken crockery, followed by Benny Gantz who betrayed his voters, and Bennett, whose lust to rule has driven him insane. Then there was the failure of the High Court, and now the president has disappointed us. It could have been his finest hour.