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No time announced for ruling

High Court swats ‘political’ challenges to legality of alternate PM post

Chief justice says petitioners must make legal arguments about why Netanyahu-Gantz power-sharing deal should be struck down, but no ruling announced

Chief Justice Esther Hayut (R) and High Court Justice Hanan Melcer arrive to a hearing on petitions against the position of alternate prime minister, at the Supreme Court in Jerusalem, October 27, 2020. (Yonatan Sindel/Flash90)
Chief Justice Esther Hayut (R) and High Court Justice Hanan Melcer arrive to a hearing on petitions against the position of alternate prime minister, at the Supreme Court in Jerusalem, October 27, 2020. (Yonatan Sindel/Flash90)

The High Court of Justice on Tuesday heard petitions against the new post of alternate prime minister, created earlier this year as part of the coalition agreement and currently filled by Defense Minister Benny Gantz, with the judges questioning and challenging most of the petitioners’ arguments but offering no ruling yet.

No time has been set for the ruling.

Three petitions have been filed against the creation of the post: one by the left-wing Meretz party, another by the Movement for Quality Government in Israel, and the third by private lawyer Avigdor Feldman.

Chief Justice Esther Hayut, her deputy Hanan Melcer and Justice Neal Hendel repeatedly told some of the petitioners they were using political arguments rather than legal ones, and challenged them to explain why the change was more radical than, for example, a 1990s law that changed the election system to directly electing a prime minister rather than voting for parties that then select the premier. (That change was reversed in 2001.)

The hearing was broadcast live online as part of a pilot program to make some Supreme Court discussions more accessible to the public.

At one point toward the end of the six-hour hearing, Hendel, 68, appeared to be asleep as one of the petitioners was making his arguments.

A unity coalition deal signed in April between Prime Minister Benjamin Netanyahu and Blue and White’s Gantz, ending 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 be 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.

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. Polls have shown Likud losing ground to far-right Yamina and centrist Yesh Atid, making a new vote less palatable to the party.

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 its clauses. However, Gantz said Tuesday that he would accept and respect any court ruling on the matter.

During the 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.

Eliad Shraga, the head of the Movement for Quality Government in Israel, argued during the hearing that the law creating the new office is a “constitutional mega-terror attack,” creates a “monarchic mafiocracy” and undermines all the progress made toward a constitution.

“That’s political criticism, not a legal argument,” Hayut intervened at one point.

Shraga echoed comments made previously by his group that Netanyahu “is seeking to create a new constitutional regime to defend him from criminal charges” and Gantz “is trying to make that change for short-term political considerations stemming from lack of trust in Netanyahu.”

He argued that the legislation process was hurried and inappropriate for such a fundamental change, and that the change itself was undemocratic and not seen in any other country.

Attorney Yonatan Berman, representing Meretz, argued that Likud and Blue and White had made the legislative changes with ulterior motives and that the Basic Laws were being misused to “create a refuge for a criminal defendant.”

Berman said the change was made after the elections and argued that the votes would have been different had the change been implemented before the election, meaning the legislation had changed the rules after the fact. The judges responded by wondering what could have been the alternative solution to successive elections that do not result in the creation of a government.

A court hearing on petitions filed against the position of alternate prime minister at the Supreme Court in Jerusalem on October 27, 2020. (Yonatan Sindel/Flash90)

The third petitioner, Avigdor Feldman, argued that the new power-sharing mechanism should only affect the next Knesset, not the current one, since it constitutes changing the rules of the game before it has ended. The judges responded that other changes such as increasing the maximum number of ministers have been made in the past after the election and before the government was formed.

Feldman said this change was more extreme than previous ones, suggesting that the power-sharing government be allowed to remain in place while canceling the clauses creating the alternate prime minister post.

Attorney Yuval Yoaz, as part of Feldman’s petition, focused his arguments against the exemption of the alternate prime minister post on a 1990s court ruling that said criminal defendants cannot serve as ministers. That ruling refers to the prime minister’s judgment in firing such a minister and doesn’t refer to a prime minister who is under indictment. (Yoaz contributes to ToI sister site Zman Yisrael as a legal analyst.)

Likud and Netanyahu representatives Michael Rabilo and Avi Halevy argued against the court’s right to intervene in any Basic Law, and said that since the courts themselves operate on the basis of a Basic Law, accepting the petitioners’ arguments would be dangerous and lead Israel “on the fast track to anarchy,” as Rabilo put it. Hayut responded by asking him whether that would stand true even if a Basic Law was passed that cancels Knesset elections entirely.

Halevy argued that even far-reaching changes that remain in the realm of democracy were acceptable and don’t require judicial intervention, giving the examples of two houses of representatives or forming a new top court for constitutional matters. Justice Melcer took issue with the latter example, saying that was akin to forming two governments and telling Halevy to “focus your arguments on the legislature and the executive government, not the judiciary.”

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

Avital Sompolinsky, an attorney representing the Knesset, acknowledged that the legislation was not ideal and had stemmed from necessity due to the political crisis, but argued that the petitioners had not cleared any of the legal thresholds — set by judges in similar petitions in the past — necessary to justify judicial intervention in the matter.

Aner Helman of the Attorney General’s Office said the law change didn’t constitute changing the rules of the election after the fact because it had nothing to do with the election results, but rather only affected the process of forming the government after the election results are in. The judges rejected the argument, saying the formation of the government is included in the election process.

The court had previously thrown out petitions against that law and other measures created by the power-sharing government between Gantz and Netanyahu, saying it could not rule before the laws were passed into law and enacted.

The cabinet earlier this year formally created the office of the alternate prime minister and five more new offices, and approved widespread fiscal reforms that would cut the budgets of most ministries in order to fund their establishment, in a series of controversial changes to Israel’s Basic Laws.

The law gave Gantz a security motorcade similar to Netanyahu’s due to his new role, with the new security arrangements costing NIS 23 million ($6.6 million) per year, Channel 12 reported in June.

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