High Court to consider if an indicted Netanyahu can form government
PM implies court doesn't have authority to decide case

High Court to consider if an indicted Netanyahu can form government

Law offers no clear standard for PM’s eligibility in case of indictment; court ruling against him could play into his claim he is a victim of an ‘attempted coup’

In this photo taken on February 14, 2018, Prime Minister Benjamin Netanyahu leaves the Muni World conference in Tel Aviv (Jack Guez/AFP)
In this photo taken on February 14, 2018, Prime Minister Benjamin Netanyahu leaves the Muni World conference in Tel Aviv (Jack Guez/AFP)

The High Court of Justice on Sunday said it had agreed to hear a petition arguing that it is against the law for Prime Minister Benjamin Netanyahu to form the next government.

The court said the hearing would take place December 31 at 9 a.m. before a three-judge panel led by Chief Justice Esther Hayut and including Deputy Chief Justice Hanan Melcer and Justice Uzi Vogelman.

The court also asked Attorney General Avichai Mandelblit to produce a legal opinion on the question of Netanyahu’s eligibility to return to the prime minister’s chair, and to hand it to the court at least 48 hours before the hearing.

Responding to the court’s decision to hear the petition, Netanyahu implied that the judges did not have the authority to rule on his fitness. “In a democracy, those who decide who will lead the people are the people, no one else. Otherwise, it’s simply not democracy,” he said in a video released on his social media channels.

The appeal against Netanyahu’s eligibility for reelection comes as the prime minister accuses prosecutors, the media and the judiciary of working together to bring him down with trumped-up corruption charges. Mandelblit has announced an indictment against Netanyahu in three corruption cases, which include charges of breach of trust, fraud and, in the most serious case, bribery.

Supreme Court Chief Justice Esther Hayut attends the Israel Prize ceremony in Jerusalem, on Israel’s 71st Independence Day, May 9, 2019. (Yonatan Sindel/Flash90)

Netanyahu’s legal woes are partially responsible for an unprecedented year-long political deadlock that will see a third election in 11 months held on March 2, 2020. The election was called after Netanyahu twice failed to form a government, following the April 9 and September 17 elections. Challenger Benny Gantz of the Blue and White party also failed in his attempt to cobble together a ruling coalition last month.

The centrist Blue and White has refused to join a coalition either with Netanyahu as a prime minister under indictment or one that would require it to support parliamentary immunity for the longtime premier.

Supreme Court Justice Uzi Fogelman in Jerusalem for a court hearing on June 4, 2018. (Yonatan Sindel/Flash90)

Israeli law stipulates that a prime minister is only required to resign after he or she is convicted of a serious crime and all appeals have been exhausted. But judicial precedent from the early 1990s and longstanding practice have set a stricter standard for other ministers, who have been forced to resign from their cabinet posts, at least temporarily, once indictments have been announced in their cases.

In an appeal last month, the corruption watchdog Movement for Quality Government asked the High Court to force Netanyahu to resign based on the latter standard. The appeal was tossed out in late November after both Mandelblit and the judge hearing the petition, Justice Yosef Elron, concluded that such a resignation had no practical meaning.

Attorney General Avichai Mandelblit at a Justice Ministry conference in Tel Aviv, on November 4, 2019. (Flash90)

Mandelblit noted that Netanyahu’s current legal standing as interim prime minister — head of a caretaker government awaiting the successful conclusion of an election to be replaced by a full-fledged elected government — means that there is no practical meaning to a ruling that he must resign, as such a resignation, under law, triggers an election to select a new PM while the outgoing one remains in office with the same “interim” status.

But the new petition, brought in mid-December by attorney Dafna Holtz-Lachner in the name of a group of 67 well-known public figures, academics and tech executives, argues that even if Netanyahu could not be asked to resign, the court should rule on his eligibility to run again.

Supreme Court Justice Hanan Melcer (C) arrives at the High Court of Justice in Jerusalem for a hearing about public transportation on Shabbat, on September 11, 2017. (Yonatan Sindel/Flash90)

The appeal argues 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. It asks the question: Based on the standard according to which a regular cabinet minister must resign when under indictment, can an MK in a similarly compromised legal position be appointed prime minister in the first place?

The appeal argues that even if Netanyahu’s resignation would have no immediate meaning, the question of his future eligibility has vast consequences for the March election, and that voters have the right to know ahead of the next race if Netanyahu can legally be appointed by President Reuven Rivlin after election day.

Illustrative: Israeli Supreme Court justices at a hearing on March 13, 2019. (Yonatan Sindel/ Flash90)

“This is a question with real, operative consequences for the next election,” Holtz-Lachner told Channel 12 last week. “It’s not theoretical at all, and requires an immediate judicial decision.”

Supreme Court Justice Ofer Grosskopf asked Mandelblit earlier this month if he planned to issue a legal opinion on the question of Netanyahu’s eligibility. In a letter Friday to the court, Mandelblit wrote that “as long as the court does not find it necessary to consider and rule on the question, it is likewise not necessary to issue a legal opinion about it.”

The court’s response on Sunday, in which it agreed to hear the appeal and ordered Mandelblit to produce an opinion on Netanyahu’s eligibility, brings the politically charged question squarely into the legal system’s domain, and will likely be used by Netanyahu’s campaign to advance his assertion that the legal system is staging an “attempted coup” in a bid to topple his right-wing government.

Holtz-Lachner on Sunday praised the court’s willingness to debate the question “for the good of the public.”

In his Friday letter, Mandelblit said that should the High Court take up the question, his legal opinion would be produced in coordination with the legal advisers of the Knesset and the President’s Residence.

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