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High Court signals it could nullify legislation at core of Netanyahu-Gantz deal

In dramatic move that could send Israel to elections or even a constitutional crisis, judges give government 21 days to defend Basic Law changes propping up power-sharing coalition

Chief Justice Esther Hayut, hearing  petitions against the position of alternate prime minister at the Supreme Court in Jerusalem, on October 27, 2020. (Yonatan Sindel/Flash90)
Chief Justice Esther Hayut, hearing petitions against the position of alternate prime minister at the Supreme Court in Jerusalem, on October 27, 2020. (Yonatan Sindel/Flash90)

In a decision that could have a dramatic impact on Israel’s current power-sharing government, the High Court of Justice on Thursday appeared to accept many arguments made by petitioners against the coalition agreement between Prime Minister Benjamin Netanyahu and Defense Minister Benny Gantz and the changes made to the country’s quasi-constitutional Basic Laws in order to implement that deal.

After a panel of three judges expressed criticism of many of the petitioners’ arguments during an October 27 hearing, the court announced a surprise decision to give the state 21 days to explain why significant portions of Amendment 8 to Israel’s Basic Law: The Government shouldn’t be nullified.

The decision is a rare hint by the High Court that it is considering nullifying an amendment to a Basic Law, and it drew outrage from right-wing politicians — including calls to disregard such a potential ruling — alongside praise from the left.

The unity coalition deal, signed in April between Netanyahu and Gantz to end over a year of political deadlock, included the creation of the Alternate Prime Minister’s Office, which is to be held by Gantz for 18 months and then transferred to Netanyahu as part of a power-sharing deal that allows him to keep the prime ministerial title even after vacating the post.

Netanyahu is charged with corruption in three cases, including bribery in one of them. Unlike other ministers, a prime minister can remain in their post even after an indictment on criminal charges.

At the time of the coalition agreement earlier in the year, Blue and White feared Netanyahu would not honor the rotation agreement that required him to hand over power to Gantz. Therefore the parties agreed to pass legislation to formally anchor the necessary mechanism, which involved changing Israel’s quasi-constitutional Basic Laws.

Critics have accused Netanyahu of still trying to avoid making good on the agreement by using a loophole regarding the collapse of the government in the case of a failure to pass the state budget. But if the court ends up nullifying the coalition agreement, he possibly won’t need the budget pretext in order for the government to dissolve without the premiership going to Gantz.

MK Benny Gantz, head of Blue and White (left) and Prime Minister Benjamin Netanyahu, head of Likud, sign their unity government agreement on April 20, 2020. (GPO)

Likud has warned that any ruling nullifying the Alternate Prime Minister’s Office would unravel the entire coalition deal and drag Israel into new national elections. Both Likud and Blue and White have previously told the court that they view the new office as a central plank of the coalition deal, asking the court to approve all of its clauses. However, Gantz has said he would accept and respect any court ruling on the matter.

The court on Thursday issued an order to show cause requiring the defendants — the Knesset, the attorney general, the Likud and Blue and White parties, Netanyahu, Gantz and other coalition lawmakers — to explain why legislation that narrows the Knesset’s powers, including its authority to bring down the government, should be allowed.

It also called into question parts of the legislation that demand that any further changes to that particular Basic Law be done only with a super-majority of 70 lawmakers out of the 120-member Knesset.

The judges demanded that the defendants explain why the entire amendment should not be nullified so that they will only be in effect during the current, 23rd Knesset but not the next one, with a temporary order replacing it.

The panel — Chief Justice Esther Hayut, her deputy Hanan Melcer and Justice Neal Hendel — also decided to henceforth review the matter in a panel of nine justices, signaling the three judges believed the issue to be of particularly high stakes.

During last month’s discussion, Hayut highlighted the fact that the High Court had never nullified a Basic Law or an amendment to such a law, and said there was a big question whether the court was even authorized to do so.

“The High Court decision means that the court understands we are witnessing an alteration of Israel’s constitutional structure to legitimize a crooked political deal,” said Nitzan Horowitz, head of the left-wing Meretz party, which filed one of the three petitions on the matter. “The corrupt agreement between Likud and Blue and White is morally, democratically and legally wrong.”

Prime Minister Benjamin Netanyahu, right, with then-tourism minister Yariv Levin during a vote at the assembly hall of the Knesset on February 13, 2018. (Yonatan Sindel/Flash90/File)

Knesset Speaker Yariv Levin, of Netanyahu’s Likud party, called the ruling “outrageous” and charged it was “laying the groundwork for crossing of red line of intervening in Basic Laws, without authority and in a manner that goes against the most basic democratic principles.”

Levin said such an intervention, as far as he’s concerned, would be “null and void.”

“Any such step by the High Court increases public support for changing the judge-selection method and expelling judges who use their position to trample democracy,” Levin said. “I will not stop fighting until the changes to the justice system are fully implemented. It is a difficult and long struggle, but democracy and the people’s will shall triumph.”

Coalition whip Miki Zohar (Likud) commented that “it is not the High Court’s job to intervene in coalition agreements.”

Many conservatives have for years been protesting what they view as a High Court that overly tends to nullify laws passed by the Knesset, slamming the “constitutional revolution” led by former chief justice Aharon Barak in the 1990s.

They have also been critical of the method for selecting judges, which effectively hands the sitting High Court justices a veto over the appointment of their colleagues since three sitting judges are on the Judicial Appointments Committee, and new judges can only be appointed with a majority of seven out of the committee’s nine members.

However, for most of his political career, Netanyahu did not push for such changes, and even said in 2012 that he had “defended” the High Court. That has changed in recent years, since Netanyahu was investigated and eventually indicted in three corruption cases. However, despite intensifying his rhetoric against the judiciary and launching scathing attacks on the system, the government hasn’t taken concrete steps.

Yamina MK Bezalel Smotrich speaks during a Knesset plenum session in Jerusalem on August 24, 2020. (Oren Ben Hakoon/Pool/Flash90)

MK Bezalel Smotrich, a far-right member of the opposition Yamina party, accused the judges of “arrogantly and irresponsibly heading toward a constitutional crisis the likes of which Israel has never experienced.

“Intervention without authority in Basic Laws would undermine the essence of the democratic regime and would be something that must not be obeyed, that would require an adequate response by the Knesset, and that could cause Israeli society to crumble,” Smotrich said.

He also attacked the outraged statements from Likud members as “hypocritical” and said Netanyahu was partly to blame for “feeding the judicial monster for years and safeguarding it.”

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