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Likud responds: 'In democracies, the citizens vote'

High Court justice: Government run by indicted prime minister a ‘moral failure’

In full ruling on petitions that sought to prevent Netanyahu from forming government, judges express discomfort but say no legal justification to intervene

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

Supreme Court Justice Meni Mazuz at the Supreme Court in Jerusalem on March 22, 2019. (Yonatan Sindel/Flash90)
Supreme Court Justice Meni Mazuz at the Supreme Court in Jerusalem on March 22, 2019. (Yonatan Sindel/Flash90)

A Supreme Court justice, in a ruling published Wednesday, took the unusual step of criticizing the fact that Benjamin Netanyahu is serving as prime minister while under indictment.

“The reality in which a criminal suspect forms a government and leads it reflects a social crisis and moral failure of society and of Israel’s political system,” Judge Menahem (Meni) Mazuz wrote in the full response to petitions that sought to prevent Netanyahu from forming a government due to the criminal charges against him.

An 11-member panel of justices voted unanimously on May 6 to reject the petitions, saying there was no legal basis for them to intervene and prevent Netanyahu from running the country after his Likud party formed a government in the wake of the elections in March.

Netanyahu’s trial began on Sunday. He faces charges of bribery, fraud and breach of trust.

“I agreed with the decision that we reached, as outlined in the rationale. While [the ruling] was not given lightheartedly, I am at peace with it,” Mazuz wrote.

Justice Anat Baron appeared to concur with Mazuz, writing in her response, “The petitioners and others like them are frustrated that the head of the State of Israel is someone who is facing a serious indictment. This is indeed an unusual situation in the democratic landscape, some would say dangerous,” she wrote, adding that “the filing of the petitions has greatly advanced the public debate on the matter, but the solution lies at the ballot box, not the courtroom.”

A High Court of Justice hearing at the Supreme Court in Jerusalem on May 4, 2020. (Abir Sultan/Pool/AFP)

Justice Yitzhak Amit called it “inappropriate… that a Knesset member who was indicted on serious offenses of moral integrity is given the mandate to form a government and serve as prime minister,” before clarifying that such a characterization does not mean the court had legal justification to intervene.

However, he clarified that “the [court’s] rejection of a petition does not necessarily mean that it is imprinting a ‘kosher’ stamp of approval [on the government].”

Responding to the full release of the May 6 ruling, the Likud party said in a statement Wednesday, “The citizens of Israel elected Prime Minister Netanyahu by a huge margin, which saw Likud receive the largest number of votes that a single party has received in the history of the state. It was a huge victory for the right-wing leader and an unequivocal declaration of confidence in him.

“In democracies, the citizens vote at the polling station and choose the prime minister,” it added. “Whoever wants to replace the prime minister can certainly run in the next election and let the citizens decide for themselves.”

Likud won 36 of the Knesset’s 120 seats in March, compared to 33 for Benny Gantz’s Blue and White party. Other parties in Israel’s history have won more seats in parliament, but due to population growth Netanyahu’s party indeed picked up the most individual votes.

In the initially published ruling, Chief Justice Esther Hayut wrote that Netanyahu still enjoys the presumption of innocence until proven otherwise, and that the law doesn’t prevent a criminal defendant from forming a government.

Supreme Court Chief Justice Esther Hayut at a second day of hearings on petitions against the coalition agreement between Benny Gantz’s Blue and White party and Benjamin Netanyahu’s Likud, at the Supreme Court in Jerusalem on May 3, 2020. (Oren Ben Hakoon/Pool)

But she also hinted that legislation shoring up the Likud-Blue and White unity government, which at the time was still making its way through the Knesset, could still be challenged once passed, and said parts of the agreement raised “significant difficulties.”

Hayut called the coalition deal “highly unusual” and said some of its elements “raise serious difficulties.” Among these, she cited clauses providing for a modified “Norwegian Law,” under which some ministers could give up their Knesset seats, and others on their parties’ lists would take their places in parliament — but not necessarily according to the order in which they ran in the election. The parties have since replaced the law with a less controversial version.

Nonetheless, the court ruled that there was no reason to intervene “at this time” — a phrase that was seen as leaving the door open to future challenges to the legislation underpinning the agreement.

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