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Likud official acknowledges that PM has gone too far

High Court freezes Netanyahu-led appointment of Likud ally as justice minister

PM and Ofir Akunis given till Wednesday to justify appointment, which ministers approved even as AG protested it was illegal; ex-state prosecutor slams ‘breach of rule of law’

Jacob Magid is The Times of Israel's US correspondent based in New York

The High Court of Justice convenes to discuss the vacant justice minister post on April 27, 2021. (Yonatan Sindel/Flash90)
The High Court of Justice convenes to discuss the vacant justice minister post on April 27, 2021. (Yonatan Sindel/Flash90)

The High Court of Justice on Tuesday temporarily froze the appointment of Likud MK Ofir Akunis as justice minister, after the cabinet — led by Prime Minister Benjamin Netanyahu — openly defied the attorney general’s forceful warnings that the move was illegal and pushed through the appointment.

The court issued the ruling less than two hours after a hearing on Akunis’s appointment, which was approved earlier Tuesday over the strident objections of Attorney General Avichai Mandelblit in a cabinet meeting that quickly descended into a shouting match between Likud and Blue and White ministers.

By holding the vote, Mandelblit told Netanyahu during the meeting, the Likud-led bloc of the caretaker government flouted a quasi-constitutional Basic Law, amended last year by Netanyahu and Benny Gantz, that reserved the position for a candidate backed by Gantz’s Blue and White-led bloc.

The High Court justices said Tuesday evening that Akunis could not serve as justice minister until the court decides otherwise and said the position would remain vacant in the interim.

Netanyahu and Akunis have until Wednesday morning to justify why they believe the appointment should still go through, in violation of Likud’s coalition agreement with Blue and White, which was enshrined into a Basic Law.

The judges will then reconvene on Wednesday afternoon at 3:30 p.m. to discuss the arguments before reaching a final decision, the ruling stated.

Supreme Court Chief Justice Ester Hayut speaks at a hearing to discuss the vacant justice minister post on April 27, 2021. (Yonatan Sindel/Flash90)

The cabinet had met virtually on Tuesday afternoon to discuss the vacancy in the Justice Ministry, which has been without a minister since the beginning of April. Blue and White leader Gantz, who is also defense minister, has demanded that he be appointed to the post. He brought the matter to a vote during the meeting, in line with the agenda for the meeting, but was voted down by the Likud majority.

Subsequently, Netanyahu shocked the Blue and White ministers by proposing Akunis for the position and bringing Akunis’s candidacy to a vote, defying Mandelblit’s shouted warning that the step was “illegal.”

The premier has prevented the appointment of a permanent justice minister for months. Critics have accused him of intentionally seeking to weaken the justice system amid his criminal trial, as he hopes to appoint a minister who will be friendlier to his cause.

Hinting at how she might rule, Chief Justice Esther Hayut said at the Tuesday night hearing that the cabinet had been obligated to adhere to the position of the attorney general — the government’s chief legal adviser — during its meeting, which it failed to do.

Prime Minister Benjamin Netanyahu speaks at a press conference at the Knesset, in Jerusalem on April 21, 2021. (Yonatan Sindel/Flash90)

David Peter, the private attorney representing Netanyahu and Akunis at the hearing, relayed the premier’s request for another 48-hour extension on the Tuesday deadline the court had previously set to appoint a justice minister.

“What will happen in the next 48 hours that has not happened since Thursday when we first met on the subject?” Hayut responded.

Channel 12 quoted a “senior legal official” who claimed that Netanyahu’s conduct Tuesday brought him closer to being forced to step down from his position as prime minister, due to the evident conflicts of interest relating to the criminal trial against him.

“This is the most serious constitutional crisis that the State of Israel has ever seen,” the senior official told the network. “The prime minister has carried out an attack on democracy and he is a step away from [being declared] unfit to fulfill his duties.”

A source in Likud also voiced criticism against the premier, telling the network that Netanyahu had “made a serious mistake,” in pushing through Akunis’s appointment.

Former state prosecutor Shai Nitzan called the episode “unprecedented,” “scandalous” and “a breach of the rule of law.” He said he did not consider that it constituted grounds for Netanyahu to be suspended as prime minister, however.

Likud Minister Ofir Akunis in Jerusalem on May 28, 2019. (Yonatan Sindel/Flash90)

In a statement to the media on Tuesday evening, Gantz said that at the cabinet, Netanyahu “attempted in a planned and deliberate manner to steamroll the rule of law. He tried and failed.”

He said the premier tried “to undermine the foundations of democracy” by holding a vote against the law that served as the basis for the current government.

“The prime minister’s belligerent and illegal conduct must be stopped now,” Gantz added.

In a message to right-wing parties that are considering joining with the anti-Netanyahu camp in the Knesset to form a government, Gantz said Netanyahu’s “word is worthless, and personal considerations trump all others.”

Less than an hour before the High Court hearing on Tuesday evening, Mandelblit issued his official stance to the court, saying Netanyahu and his backers in the cabinet had acted “knowingly” and “illegally” in pushing through Akunis’s appointment.

Defense Minister Benny Gantz in a video message, April 27, 2021 (video screenshot)

“There is no escape from issuing an order instructing the government to fill the position of justice minister without delay,” Mandelblit wrote.

Naftali Bennett, head of the Yamina party, responded to the chaos by warning, “The State of Israel is approaching an abyss of anarchy.”

The rules legislated last year for a “parity” government grant each of the country’s two “prime ministers,” the serving one and the “alternate” one, a veto over each other’s actions in the cabinet. They also grant each side complete control over appointing and firing of ministers within their “bloc” in the cabinet. These and other elements of the Netanyahu-Gantz coalition agreement are anchored in Israel’s quasi-constitutional Basic Law: The Government, which was amended last year to this effect.

The High Court had already convened on Sunday to hear a petition against the government over its failure to appoint a justice minister and gave ministers 48 hours to do so before it would be forced to intervene with its own ruling. Netanyahu notified the High Court that day that he would bring the issue of the justice minister before the cabinet but avoided making any additional commitments.

As part of Gantz’s power-sharing coalition agreement with Netanyahu, the position of justice minister was reserved for members of Gantz’s Blue and White-led bloc. Avi Nissenkorn held the post until elections were called late last year, at which point he resigned to run on a separate party’s list. Gantz, who is also defense minister, subsequently took on the post in an interim capacity and over the past several weeks has called on Netanyahu to hold a vote to appoint him permanent justice minister.

When Gantz once again sought to bring his appointment as justice minister to a vote at Tuesday’s fiery cabinet meeting, held by videoconference, Netanyahu pushed back, telling the Blue and White minister that there was no need for an “artificial” permanent minister when there is only a caretaker government running the country and a new coalition will hopefully be formed in the near future.

Netanyahu instead recommended farming out the justice minister’s responsibilities to other cabinet members — a proposal the attorney general and High Court have flatly rejected.

The cabinet meeting quickly descended into a shouting match, with Gantz yelling, “I demand to bring my appointment as justice minister to a vote now. I am the candidate for the job. There is no other candidate. The prime minister is leading a hazing here. I demand a vote now and not in another 48 hours,” according to audio and transcripts from the online meeting that were leaked to Hebrew media.

Attorney General Avichai Mandelblit speaks at the 17th annual Jerusalem Conference of the ‘Besheva’ group, on February 24, 2020. (Olivier Fitoussi/ Flash90)

Netanyahu went on to claim that “there are questions” as to whether his coalition agreement with Gantz, which reserves the justice minister post for the Blue and White bloc, remains in effect after last month’s election.

Mandelblit rejected this assertion, saying the coalition deal stands until a new government is sworn in. He said the swearing-in of a new Knesset does not nullify the agreement.

“You are playing games, and it’s not clear to me why,” Gantz snapped at Netanyahu.

Mandeblit made clear his stance that the vote was invalid and Akunis was not the justice minister. In leaked recordings from the meeting, Mandelblit shouted at Netanyahu: “You did not let me speak until after holding a vote that I consider to be illegal. You did not uphold your own government decision. That’s my interpretation, that’s my stance. The vote was therefore illegal. Since the vote was illegal, so is the result. The consequence is clear: the decision was not approved…”

Netanyahu responded by calling Mandelblit’s position “absurd,” “manipulative” and “impossible.”

The lack of a justice minister has serious ramifications for the judicial system’s ability to function properly in some areas, including signing off on sentence reductions or extradition orders. It also affects the ability of the interim government to pass any new legislation, as government bills must first be okayed by the justice minister, who heads the Ministerial Committee for Legislation. In addition to the battle against COVID-19, this could even potentially affect urgent legislation regarding peace agreements.

Netanyahu, who is on trial on charges of bribery, fraud and breach of trust, has railed against the state prosecution, police, left-wing opposition and media, accusing them of conspiring to remove him from power. He denies any wrongdoing.

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