AG rebuffs court demand for opinion on whether Netanyahu can form government

Attorney General Avichai Mandelblit on Thursday refused to submit his legal opinion to the High Court of Justice on whether Prime Minister Benjamin Netanyahu could form a government while facing indictment.

Mandelblit said in a statement he would only issue a legal opinion if the court formally ruled on the matter first, but the court swiftly rejected his reasoning, setting up a possible battle ahead of a hearing on the matter next week.

The High Court of Justice is set to hold a hearing on December 31 on the issue of Netanyahu’s eligibility to form a coalition in response to a petition filed by a group of public figures earlier this month.

The court has asked Mandelblit to produce a legal opinion on the question and hand it to the court at least 48 hours before the hearing. On Friday, Mandelblit similarly refused to submit his opinion to the court. Last month he said Netanyahu could continue on as a caretaker prime minister, but refused to weigh in on whether he could head a permanent government or even be tasked with forming one, calling the questions hypothetical.

On Thursday, Mandelblit told the court that the issue of Netanyahu’s eligibility was a “weighty, complex and sensitive question.” He said the court needed to decide whether it would rule on the matter or throw the case out, before he clarified his views on the petition against the premier.

The High Court rejected Mandelblit’s stance later Thursday and ordered him to comply with the request for an opinion on the matter.

The petition against Netanyahu’s potential reelection comes as the prime minister has been accusing prosecutors, the media, and the judiciary of working to bring him down on trumped-up corruption charges.

The court’s decision to rule on the question of Netanyahu’s legal eligibility to run for office appears set to spark a new round of political skirmishing, and will likely be used by Netanyahu’s campaign to shore up his assertion that the legal system is staging an “attempted coup” in a bid to topple the right.

Prime Minisiter Benjamin Netanyahu attends a campaign rally in Jerusalem on December 22, 2019, ahead of the Likud parties leadership primaries. (Yonatan Sindel/Flash90)

On Sunday Netanyahu implied that the High Court of Justice did not have the authority to rule on the petition.

“In a democracy, it is the people who decide who will lead them, not anyone else. Otherwise, it just isn’t democracy,” Netanyahu said in a video posted to social media shortly after the court’s announcement that it would hear the case.

Last month, Mandelblit announced an indictment against Netanyahu in three corruption cases, which include charges of breach of trust, fraud, and, in the most serious case, bribery.

The court said the hearing on the petition would take place December 31 at 9 a.m. before a three-judge panel led by Chief Justice Esther Hayut and including Deputy Chief Justice Hanan Melcer and Justice Uzi Vogelman.

The law appears to stipulate that a sitting prime minister is only required to resign after he or she is convicted of a serious crime and all appeals have been exhausted. But judicial precedent from the early 1990s and longstanding practice have set a stricter standard for other ministers, who have been forced to resign their cabinet posts, at least temporarily, once indictments have been announced in their cases. The law is agnostic on the ability of the president to task a politician under indictment with forming a government.

The petition in question was brought in mid-December by attorney Dafna Holtz-Lachner in the name of a group of 67 well-known public figures, academics and tech executives.

It argues that the law’s leniency toward an indicted prime minister only refers to a serving premier, not an MK seeking a new appointment to the post, like Netanyahu, who is officially an interim prime minister. It asks the question: Based on the standard according to which a regular cabinet minister must resign when under indictment, can an MK in a similarly compromised legal position be appointed prime minister in the first place?

Supreme Court President Esther Hayut at the Supreme Court in Jerusalem, on December 3, 2019. (Yonatan Sindel/Flash90)

The appeal also says that voters have the right to know ahead of the upcoming March 2 election if Netanyahu can legally be appointed by President Reuven Rivlin after election day.

Netanyahu’s legal woes are partially responsible for an unprecedented year-long political deadlock that will see a third election in 11 months held on March 2, 2020. The election was called after Netanyahu twice failed to form a government, following the April 9 and September 17 elections. Challenger Benny Gantz of the Blue and White party also failed in his attempt to cobble together a ruling coalition last month.

The centrist Blue and White has refused to join a coalition with Netanyahu as a prime minister under indictment or one that would require it to support parliamentary immunity for the longtime premier.

In a petition last month, the corruption watchdog Movement for Quality Government asked the High Court to force Netanyahu to resign outright. That appeal was tossed out in late November after both Mandelblit and the judge hearing the petition, Justice Yosef Elron, concluded that such a resignation had no practical meaning.

Mandelblit noted then that Netanyahu’s current legal standing as interim prime minister — head of a caretaker government awaiting the successful conclusion of an election to be replaced by a full-fledged elected government — would not be changed by his resignation, as such a resignation, under law, triggers an election to select a new prime minister while the outgoing one remains in office with the same “interim” status.