By YONAH JEREMY BOB
The Jerusalem Post
An 11-judge panel of Israel’s High Court at close to midnight on Wednesday green-lighted Prime Minister Benjamin Netanyahu to form the next government as well as controversial aspects of the Blue and White-Likud coalition deal.
Despite misgivings about the “grave charges pending” in the bribery indictment against Netanyahu and aspects of the coalition deal, the justices voted unanimously that it was improper for them to intervene.
Ultimately, the justices said there was a two-part test to giving Netanyahu the green light. First, they said he was not automatically disqualified by law since the Knesset law only automatically disqualifies a prime minister who was convicted and exhausted his appeals. Second, they said the court could still review the discretion of any appointment.
The question then became who is appointing the prime minister. The justices ruled that the Knesset is the body that appoints the prime minister and that they must give heavy deference to such an inherently political decision. Further, the justices said it could be disastrous for an external body – such as the court – to intervene with this process absent a case much more extreme than the one before them.
The signs were already there on Sunday that it would be hard for the petitioners to force out Netanyahu.
Even then, it appeared that at least a majority of six, if not more, of the justices were leaning toward green-lighting Netanyahu. The decision is expected to come before the May 7 deadline to form a government.
Movement for the Quality of Government in Israel lawyer Eliad Shraga tried on Sunday to shock the justices into ruling against Netanyahu.
He said if the High Court accepted Netanyahu as prime minister, “you will have destroyed your decades of precedent of Deri-Pinhasi,” which forces ministers to resign upon indictment.
Shraga also said Attorney-General Avichai Mandelblit’s attempts to defend Netanyahu were a “tortuous mix” of contradictory approaches to interpreting the law.
He lashed out at Blue and White leader Benny Gantz’s lawyers, who had said the High Court has the power to fire a prime minister, but not in these specific circumstances (highlighting the three elections and coronavirus crisis).
Shraga proclaimed the case against Netanyahu was “extremely grave,” saying that Mandelblit and the lawyers for the Knesset and President Reuven Rivlin were “turning bribery into normative behavior” by looking the other way so that Netanyahu could form the next government.
Lawyer Daphna Holech-Lechner, representing more than 100 hi-tech officials, said on Sunday: “We are falling into a dark black hole” that is “destroying the rule of law… We have been in this situation for months with danger and awful attacks on the rule of law.”
“What we saw until now is just a promo,” she added. “This is very dangerous.”
“I don’t think Knesset members at the time of the amendment of the Basic Law [regarding when a prime minister must resign] ever would have imagined where we are with” the public and the Knesset endorsing a man indicted for bribery to be prime minister and Netanyahu himself refuses to resign, Holech-Lechner said.
But the justices appeared unconvinced. High Court President Esther Hayut and Vice President Hanan Melcer repeatedly said on Sunday that the petitioners were making populist arguments and ignoring the explicit words of the law, which only allow ousting a prime minister after convicting and exhausting all appeals.
When the law regarding ousting a prime minister for legal issues was passed, Melcer said, the Knesset even considered a stricter approach and rejected it to avoid non-elected legal officials from toppling the person chosen to run the country by the voters.
Hayut explicitly referred to the Knesset’s power of selecting a prime minister as being at the heart of the legislative branch’s fundamental political powers for which it had much wider discretion than a mere administrative decision.
Whereas in the case of a minister, the High Court could order the prime minister to fire them for being indicted, the justices suggested that they did not have the same obvious angle for overruling the sovereign choice of the Knesset to lead the country.
Holech-Lechner said Amnon Rubinstein, who helped lead the legislation regarding ousting a prime minister some 20 years ago, has admitted that they did not foresee a situation in which the prime minister would be viable and seek to stay in office if accused of bribery.
But Melcer’s retort was that if there was a problem with the law, the Knesset itself would need to fix it with an amendment, not the courts.
One key moment in the hearings was when the High Court appeared to be trying to limit Netanyahu’s powers as prime minister even if they green-light him.
For example, they suggested he would not be allowed to take on any additional ministerial portfolios besides being prime minister as long as he faces his trial.
Also, they suggested he should be walled off from involvement in appointing law-enforcement officials. (It is unclear how this can be enforced, given that the Likud can enforce his will whether Netanyahu is physically present at decisive meetings or not.)
Last week, Mandelblit had green-lighted Netanyahu despite significant misgivings regarding the bribery indictment pending against him.
Mandelblit had also said despite major legal problems with other controversial aspects of the Likud-Blue and White coalition deal, the High Court of Justice should let the new government form and probe specifics only later and if concrete problems present themselves.
