The High Court of Justice threw out a petition on Thursday that urged it to bar Prime Minister Benjamin Netanyahu from forming a government after the upcoming March election due to the charges against him in three criminal cases.
The court said it would not make a decision on the matter, because the timing was “premature.”
The panel of justices led by Supreme Court President Esther Hayut indicated it was too early to give a ruling as the election has not yet taken place, and said the petition may be more pertinent if and when Netanyahu is about to be tasked with forming a government after the election.
“According to Basic Law: The Government, the president is the authorized party to impose on one of the Knesset members the task of assembling the government. Naturally, since the elections have not yet taken place and their results are not yet known, the president has not yet consulted the representatives of the factions and has not yet been asked the question posed,” the ruling said.
“Therefore, even if the legal question itself is a major question, it is theoretical and does not need to be decided at this time.”
The Likud party welcomed the decision saying, “The High Court acted correctly. In a democracy only the people decide who will lead the people, and no one else.”
On Tuesday, the High Court held a preliminary hearing on the petition, submitted by attorney Dafna Holtz-Lachner in the name of a group of 67 well-known public figures, academics and tech executives. It 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. 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.
At the hearing, justices Hayut, Hanan Melcer and Uzi Vogelman examined 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 running as a candidate in elections,” Hayut noted, indicating a wariness to intervene. “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.”
Holtz-Lachner claimed 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 Thursday’s ruling, the justices 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.
“It should be kept in mind that according to the system of electoral practice in Israel, voting is for party slates and not a direct election of prime candidates and that the defendant is eligible to run in the upcoming elections at the top of the defendant’s list,” they wrote.
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. On Wednesday the prime minister announced that he would seek Knesset immunity from prosecution in the three cases.