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Expert believes judges intimated they won't block Netanyahu

‘On what basis?’ High Court sounds reluctant to bar Netanyahu from forming gov’t

‘Show us something!’ court president demands of petitioners. ‘You’re asking us to set a precedent!’; State and party lawyers urge judges not to intervene, warn of political fallout

Supreme Court Chief Justice Esther Hayut speaks during High Court of Justice deliberations on petitions against Benjamin Netanyahu being appointed prime minister, on May 3, 2020. (Screen capture)
Supreme Court Chief Justice Esther Hayut speaks during High Court of Justice deliberations on petitions against Benjamin Netanyahu being appointed prime minister, on May 3, 2020. (Screen capture)

The High Court of Justice on Sunday heard arguments for and against allowing Benjamin Netanyahu to return to the prime minister’s chair despite his indictment in three corruption cases, and seemed unconvinced at points in the day’s hearings that it should do so.

The hearings by an expanded panel of 11 justices were dominated first by representatives of Likud, Blue and White and the relevant branches of government, who all urged the court not to intervene in Netanyahu’s appointment, followed by the petitioners who argued that the justices were obligated to step in. The High Court hearings were broadcast live.

At one point in the afternoon session, Chief Justice Esther Hayut pressed the petitioners to provide a basis for their demand that a lawmaker who was recommended by the majority of his Knesset peers to form the government be prevented from doing so.

“Show us something! A law! A verdict! From this country’s [history]! From [somewhere else] in the world! Something!,” Hayut said. “After all, [you’re asking us to set] a global precedent! You want us to rule without a basis simply according to your personal opinion?”

At her side, Justice Hanan Melcer nodded his agreement.

High Court President Esther Hayut (center) and other justices, wearing masks and with clear plastic dividers between them, hold a hearing on whether Benjamin Netanyahu is eligible to form Israel’s next government while under indictment, May 3, 2020. (Screen capture: GPO)

Suzie Navot, a leading constitutional law expert, said near the close of the day’s discussion that the judges appeared to intimate they would not block Netanyahu, and seemed to conveying a sense of “what do you want from us? Do you want us to legislate for you?… It’s not our job. It’s the job of the Knesset.”

Netanyahu, in power since 2009, and ex-military chief Benny Gantz faced off in three inconclusive elections in less than a year. With neither man able to form a viable governing coalition in Israel’s deeply divided 120-seat parliament, they agreed to a power-sharing deal last month, saying they aimed to avert a fourth vote opposed across the political spectrum.

But the deal faces eight petitions challenging its validity before the High Court of Justice. Five of the eight, submitted by anti-corruption watchdog groups and others, argue that members of Knesset indicted on corruption charges, such as Netanyahu, cannot be appointed prime minister.

The High Court of Justice meets to consider petitions against Benjamin Netanyahu being appointed prime minister, on May 3, 2020. (Screen capture)

The morning deliberations in the High Court heard from the speakers who sided with Netanyahu, though for a variety of sometimes contradictory reasons.

“This decision is so political and complex, touching on the relationship between the Knesset and the government,” said attorney Avital Sompolinsky, representing the Knesset’s legal department, that the court should “adopt the view that it can enter this sensitive and deeply politicized arena only in the most extreme cases.”

Anar Herman, representing Attorney General Avichai Mandelblit, said that “in the current situation, Netanyahu is not disqualified from serving as prime minister,” even as he emphasized the seriousness of the accusations the prime minister faces.

And an attorney for the Likud party insisted “the entire process” of selecting a prime minister, from the voters’ choices on election day to the MKs’ recommendations to the presidential appointment, “is a constitutional process, not an administrative one. It’s inappropriate for the court to intervene in the constitutional judgment of the people and the members of Knesset.”

Michael Ravilo, representing Netanyahu, argued that “it would have been better” were the court to have dismissed the petitions right away, rather than involving itself “in these political issues.” The will of the electorate was at stake, he argued.

“This court’s stance is that everything is judge-able,” Ravilo claimed, prompting Hayut to interrupt witheringly: “Nu, really. This court has never stated that… This populist claim is most unfortunate.”

People keep social distance amid concerns over the country’s coronavirus outbreak, during a protest against Prime Minister Benjamin Netanyahu and Knesset Speaker Benny Gantz, at Rabin square in Tel Aviv, May 2, 2020. (AP Photo/Ariel Schalit)

The court broke for a noon recess, then returned at 1 p.m. to hear the arguments by the petitioners against Netanyahu’s returning to the prime minister’s chair.

Petitioners including Eliad Shraga, founder of the Movement for Quality Government in Israel, claimed that public norms and the faith of the public in its elected representatives were at stake. Noting that existing law requires serving ministers to step down if charged in a criminal case, they argued that there should plainly be no lesser requirement on an MK about to set up a new government.

Hayut criticized one of the lawyers for the petitioners, Dapha Holetz-Lechner, for intimating that “the whole fortress” would collapse if the court did not rule in their favor. “That claim is inappropriate,” Hayut said. “No fortress will collapse.”

Leading Israeli constitutional law professor Suzie Navot (courtesy)

Navot, speaking to Channel 12 toward the end of the day’s hearings, said she inclined to think, given “the spirit” of the sessions and the judges’ various comments, that the court would not intervene on the issue of whether Netanyahu is permitted to set up and head a new government. “It will be very hard” to envisage the court determining that concern over the issue of the public’s faith in its governing authorities was so powerful as to justify its intervention, she said, at a time when over 70 of the 120 elected Knesset members are backing a new, Netanyahu-led government.

On Monday, the court will hear the remaining petitions concerning the controversial aspects of the three-year coalition deal negotiated by Netanyahu and Gantz.

Under that deal, the government’s first six months will be dedicated primarily to combating the novel coronavirus that has infected more than 16,000 Israelis and ravaged the economy.

The agreement includes profound changes to Israel’s constitutional order, some of which contradict established laws, tradition and precedent.

A couple wearing masks for protection against the spread of the coronavirus hold Israeli flags during a protest against the government, at Rabin square in Tel Aviv, May 2, 2020. (AP Photo/Ariel Schalit)

Between Tuesday and Thursday, focus will shift to the Knesset, where three laws are being changed by the coalition deal, two of them the constitutional Basic Laws.

They must become law by Thursday, because that’s the deadline for the Knesset to name a prime minister from among its ranks or call new elections. The Knesset is unlikely to approve the new government if the legislation ensuring the rotation deal between Netanyahu and Gantz hasn’t become law.

Netanyahu was charged in January with accepting improper gifts and illegally trading favors in exchange for favorable media coverage. He denies wrongdoing and his trial is set to start May 24.

Prime Minister Benjamin Netanyahu in the Knesset on April 30, 2020 (screen capture via Knesset website)

Israeli law bars an indicted person from serving as an ordinary cabinet minister, but does not compel a criminally-charged prime minister to leave office.

The complication regarding Netanyahu is that he is not currently an ordinary prime minister. He has been serving as the caretaker head of a transitional government through over 18 months of grinding political deadlock.

According to some interpretations of Israeli law, that makes Netanyahu merely a candidate to become prime minister.

The deal’s opponents argue that his candidacy should be therefore disqualified by the indictments.

In an opinion delivered to the High Court this week, Attorney General Mandelblit, who indicted Netanyahu, argued there is no legal basis to prohibit him from leading a government.

Interviewed on public radio Saturday, energy minister and Netanyahu ally Yuval Steinitz said that if the court rules Netanyahu cannot serve, it would amount to “an unprecedented attack on Israeli democracy.”

The Gantz-Netanyahu coalition agreement is “a necessity, the result of three election campaigns and a desire among Israelis to avoid a fourth election,” he said.

The attorney general’s opinion said that while “certain arrangements in the coalition agreement raise major difficulties… at this time there are no grounds to disqualify (it).”

He advised that problematic provisions be reviewed “at the implementation stage.”

If the expanded panel of 11 judges set to hear the case deems the coalition deal invalid, Israel may be forced to hold its fourth election in less than two years.

Agencies contributed to this report.

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