Wary court hears petition, to rule later on whether Netanyahu can form coalition
‘Why now?’ asks top Supreme Court justice, indicating a disinclination to intervene; AG’s representatives tell judges they should not express opinion during an election period
Raoul Wootliff is the Times of Israel's former political correspondent and producer of the Daily Briefing podcast.
The High Court of Justice on Tuesday morning held a preliminary hearing on whether a lawmaker facing criminal indictment can be tapped to form a coalition, a potentially high-stakes decision that could disrupt Prime Minister Benjamin Netanyahu’s political future.
Opening the hearing, Chief Justice Esther Hayut, who heads the three-judge panel, alongside Deputy Chief Justice Hanan Melcer and Justice Uzi Vogelman, clarified: “We are here to discuss the preliminary question of whether the attorney general and whether the High Court should discuss the issue at hand.”
The justices then went on to question both the claim that the court should rule on the petition immediately and the opposite argument that it must wait until the issue is no longer “theoretical” and Netanyahu has been tasked with forming a coalition.
“There is no legal ruling preventing (Netanyahu) from standing as a candidate in elections,” Hayut noted, intimating a wariness to intervene at this time. “Why (petition) now (on whether he could legally form a coalition)? Why not wait until after the elections? … There are other junctures at which we can make a determination.”
Concluding the session, the court said that a decision will be handed down at a later date.
Among the numerous possibilities, the court could rule that it will not intervene in the affair, schedule a second hearing before a larger panel, or defer any hearing to a time after the March elections when the issue might become an urgent concern.
Pro-Netanyahu demonstrators protested outside the court building during the hearing, carrying banners some of which declared “the Supreme Court betrayed Israel,” and that the court was “burying democracy.”
Speaking at a Calcalist conference at the same time as the hearing, President Reuven Rivlin appeared to suggest that the court should not intervene.
“I think that the people’s elected officials should be protected from removal against the will of the people,” he said in response to a question on the hearing.
“Since the court is discussing a matter that has not yet come to its table, it is appropriate to say nothing about the matter, although I think I have an opinion. We certainly have a problem that is between law and morality, between values and the will of the people and these are things to be seriously considered,” Rivlin added.
The hearing came in response to a petition submitted by attorney Dafna Holtz-Lachner in the name of a group of 67 well-known public figures, academics and tech executives aimed at clarifying the status of Netanyahu, who has been charged in three corruption cases.
The petition argued that even if, under the law, Netanyahu cannot be asked to resign, the court should rule on his eligibility as a caretaker prime minister — not a full prime minister — to be tasked with forming and heading a coalition government.
Attorney General Avichai Mandelblit on November 21 announced charges against Netanyahu in a trio of corruption cases. Netanyahu has indicated in recent days that he will likely seek parliamentary immunity, potentially delaying or frustrating efforts to bring him to trial.
Holtz-Lachner opened the arguments Tuesday, claiming that the current law’s leniency toward an indicted prime minister only refers to a serving premier, not an MK seeking a new appointment to the post. Netanyahu has been interim premier in the absence of a Knesset mandate since December 2018, and is thus in the position of a lawmaker seeking an appointment, not a serving prime minister.
Israeli law requires any indicted minister other than the prime minister to resign their post. Under that standard, Holtz-Lachner asked, can an MK in a similarly compromised legal position be appointed prime minister in the first place?
“This is not a political issue; this is a legal issue. The role of the judiciary is to make sure that the people elect people who work for the good of the people. Democracy must be protected. We can see how the defendant has already acted to attack legal authorities,” she said.
Asked why the court must rule now, when the issue is still “theoretical,” given that Netanyahu has not yet been tasked with forming a coalition, Holtz-Lachner said, “The public has a right to know before it votes.”
In response, Justice Vogelman pointed out that Israel does not have a direct election for prime minister and that instead the public votes for parties, so the question of whether Netanyahu can form a government does not necessarily play into the consideration, at least legally.
After Holtz-Lachner quoted a case ruling that mayors may not serve under indictment, Vodelman charged that that ruling took place “after the authority was exercised” and not before the person in question had been tasked with the position.
Asked to bring examples from previous rulings backing up the position that the court should rule before Netanyahu has been tasked with forming a coalition, Holtz-Lachner admitted she had none but presented instead an academic article by former Supreme Court chief justice Aharon Barak.
“With due respect to justice Barak, that is not a constitutional source,” Melcer hit back.
The High Court had asked Mandelblit to provide a legal opinion of his own on the matter, but he responded by saying that he wanted to wait until after the court ruled on whether it will make a decision.
Representatives of Mandelblit’s office told the court Tuesday that that there is no place for it to express its opinion during an election period.
“This is a petition that seeks to push the legal system into the political arena,” a lawyer representing the state said.
Justice Melcer responded, “If it’s too soon, then when?”
The state argued said “At no point is the attorney general’s opinion needed. We are talking about the president’s authority to decide.”
Pushed by Melcer, the state admitted that the attorney general would give a legal opinion to the president if asked.
The appeal against Netanyahu’s eligibility for reelection comes as the prime minister has been accusing prosecutors, the media and the judiciary of working together to bring him down with trumped-up corruption charges.
The charges against Netanyahu include breach of trust, fraud and, in the most serious of the three cases, bribery.
Netanyahu on Monday told the High Court that it was “inconceivable” for Mandelblit to decide who will be the next prime minister, lamenting the charges the attorney general had leveled against him.
“It is inconceivable that one public official, the attorney general, as important as he is, will determine instead of the general public along with its representatives in the Knesset who can run the state and who cannot,” Netanyahu wrote. “In a democracy, those who decide who will lead are the people — the people, and no else.”
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 either with Netanyahu as a prime minister under indictment or one that would require it to support parliamentary immunity for the longtime premier.
Israeli law stipulates that a 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 from their cabinet posts, at least temporarily, once indictments have been announced in their cases.