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High Court to Netanyahu: Explain why conflict of interest rules aren’t binding

Justices also ask for explanation why Public Security Minister Ohana should be exempt from agreement and why senior law enforcement officials shouldn’t finally be appointed

Raoul Wootliff is the The Times of Israel's political correspondent.

Prime Minister Benjamin Netanyahu gives a briefing on coronavirus developments in Israel at his office in Jerusalem, on September 13, 2020. (Yoav Dudkevitch / POOL / AFP)
Prime Minister Benjamin Netanyahu gives a briefing on coronavirus developments in Israel at his office in Jerusalem, on September 13, 2020. (Yoav Dudkevitch / POOL / AFP)

Israel’s top court instructed Prime Minister Benjamin Netanyahu on Tuesday to explain why he claims he is not obligated by a conflict of interest arrangement preventing him from appointing top law enforcement officials in light of the criminal indictments against him.

The High Court of Justice gave the prime minister 30 days to explain why he believes he does not have to adhere to the restrictions drawn up by Attorney General Avichai Mandelblit in relation to his indictment in three criminal cases.

Under Mandelblit’s arrangement, Netanyahu cannot be involved in any matters that affect witnesses or other defendants in his trial, or in legislation that would impact the legal proceedings against him. He cannot intervene in matters related to the status of several top police and prosecution officials, in several fields under the responsibility of the Communications Ministry, or in the Judicial Appointments Committee, which appoints judges to the Jerusalem District Court — where his trial is being conducted — and to the Supreme Court, which would hear any appeals in the case.

Mandelblit says the arrangement does not require the approval of the premier, who has been battling with the attorney general for months and demanding to be involved in the appointment of the attorney general’s successor and other top legal officials.

Prime Minister Benjamin Netanyahu, left, speaks with then-Cabinet Secretary Avichai Mandelblit during the weekly cabinet meeting in Jerusalem, September 21, 2014. (AP/Menahem Kahana, Pool/File)

In a letter to the court last week, Mandelblit said that the legal framework for the agreement was not a recommendation or dependent on Netanyahu’s “good will.” He asked the court to intervene if the prime minister refuses to adhere to the agreement.

According to the Haaretz daily, Mandelblit plans on recommending that Netanyahu step down as premier if he doesn’t agree to adhere to the conflict of interest arrangement barring him from appointing key law enforcement officials such as police chief and state prosecutor.

In Tuesday’s court order to Netanyahu, judges also demanded an explanation as to why Justice Minister Amir Ohana should also not be barred from making appointments linked to Netanyahu’s cases, as Mandelblit has recommended due to his close relationship with the prime minister.

Public Security Minister Amir Ohana holds a press conference in Jerusalem, on July 15, 2020. (FLASH90)

Netanyahu’s lawyers have argued that the attorney general does not have the authority to enforce the conflict of interest agreement without the agreement of the prime minister.

Netanyahu in August rejected an earlier draft of the conflict of interest arrangement proposed by Mandelblit, claiming that the attorney general himself was in a conflict of interest, since he made the decision late last year to indict the prime minister.

Netanyahu’s trial on charges of accepting bribes, fraud, and breach of trust opened in May in the Jerusalem District Court.

Netanyahu is accused of offering to advance legislation benefiting powerful Israeli media moguls in exchange for more positive coverage in their publications. He has also been charged with accepting some $200,000 in illicit gifts such as cigars and champagne from two billionaires — Hollywood-based Israeli movie mogul Arnon Milchan and Australian magnate James Packer.

He denies any wrongdoing and has derided the cases as a politically motivated witch hunt, souring ties between him and Mandelblit.

Filling key postings

Additionally, the High Court on Tuesday asked Netanyahu and Defense Minister Benny Gantz to explain why senior law enforcement officials shouldn’t finally be appointed after months of empty posts.

Mandelblit told the court on Monday that he believes the state must explain why it has so far failed to appoint a number of key officials.

Writing in response to a petition filed with the court over the matter, Mandelblit said that with no concrete justification given for the failure to move the process forward, he “believes there is no choice” but to subpoena state representatives to respond.

“I ask you to act without delay in accordance with your powers under the law to promote permanent appointments to senior positions in the civil service,” Mandelblit wrote to the premier and defense minister.

Earlier this month, Mandelblit wrote to Netanyahu and Gantz, who leads the Blue and White party, to request that they remove any opposition to filling several key public service positions currently without permanent office holders.

“In the six months that have passed since the government was formed, many positions have been staffed by way of temporary appointment,” he said.

Defense Minister Benny Gantz (left) and Prime Minister Benjamin Netanyahu at a press briefing following an incident on the Israel-Lebanon border in which Israel said it thwarted a Hezbollah attack, July 27, 2020 (screenshot)

In the government coalition agreement, Likud and Blue and White agreed to put off any senior nominations that they were likely to clash over. However, at the start of October, Gantz said it was time to end the “chaos” in the government and fill senior law enforcement posts that have long been manned by temporary appointments.

Israel has been without a permanent state attorney since December 2019, with the end of Shai Nitzan’s term. Mandelblit has been serving as acting state attorney in recent months.

Similarly, the Israel Police has been without a commissioner since December 2018, when Roni Alsheich’s term ended. Alsheich was a key figure in the Netanyahu probes and thus reviled by the prime minister and Likud as one of the figures the premier claims was involved in an attempted coup against him. Motti Cohen has been acting police chief since Alsheich’s departure and has had his tenure extended several times.

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