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’
By TOI STAFF 22 December 2019,
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.
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.
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.
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.
Netanyahu and the Anatomy of a Constitutional Crisis
By Elena Chachko, LAWFARE BLOG
Friday, January 17, 2020,
[…]
Could the president deny Netanyahu the mandate even if he has the greatest support among Knesset members?
The Supreme Court has thus far stayed its hand on this key issue. The court has recently dismissed without prejudice a case challenging Netanyahu’s competence to receive the mandate to form a government after the next elections. The court ruled that the case was not ripe for adjudication because there was no certainty that Netanyahu would in fact get the mandate to form a government after the elections. The issue, it ruled, was therefore theoretical.
At the same time, the court recognized that Israel faces an unprecedented constitutional crisis and noted that the relevant constitutional questions, in principle, are justiciable. This may signal that, if Netanyahu is assigned the mandate to form a government after the elections, the court will eventually decide whether he can serve as prime minister. The court also underlined that the president, in assigning the mandate to form a government, is allowed to factor Netanyahu’s criminal indictment into this decision—rejecting Netanyahu’s argument that the indictment should play no role. Of course, given the seven-day clock set by the Basic Law, the court has set itself up to have to produce one of the most consequential decisions in its history in less than one week.
The court’s avoidance in dismissing the case is understandable given that it is caught between a rock and a hard place. The stakes of disqualifying Netanyahu—the longest serving prime minister in Israel’s history, who has solidified his control over the state in the course of his 11-year reign and still enjoys substantial popular and political support—are monumental. It could result in massive political blowback against the court, which has been under sustained political attacks notwithstanding the Netanyahu saga. Therefore, the court likely prefers to have Netanyahu’s fate decided in the political arena. If he loses the election, the court will be spared the potentially devastating consequences of deciding the competence issue. The question is what happens in the very plausible scenario that Netanyahu wins greater support in the Knesset than his main opponent, Gantz. Disqualifying him then would be even more difficult if he secures a majority on the heels of an electoral victory.
On the merits, there are conflicting considerations at play. On the one hand, effective judicial impeachment of a sitting prime minister would be unprecedented, even though Netanyahu would technically only be a caretaker prime minister until a new government is formed. As I explained previously, there is no precedent for judicial removal of a prime minister who faces criminal charges: Previous prime ministers resigned when faced with indictments. The text of the applicable constitutional norm—Basic Law: The Government—requires automatic removal only after the prime minister is convicted and the conviction becomes final, which could take years. This is different from the arrangement that applies to other officials such as ministers and mayors, which courts have previously relied on to require their removal following indictment. As I noted before,
[T]here are ample grounds for questioning the application of [precedents] to the situation of a prime minister facing criminal charges. [Previous cases] were decided based on administrative law principles that apply to the prime minister as chief executive and to city councils as administrative authorities. The question of whether a prime minister can be removed in circumstances other than those explicitly provided for in the Basic Law implicates additional complex constitutional issues. It is one thing to hold that a city council’s failure to remove a mayor who is accused of criminal wrongdoing is unreasonable as a matter of administrative law. It is a completely different thing for the Supreme Court to challenge the failure of the national legislature, the Knesset, to act, should it fail to remove the prime minister …. The stakes here are particularly high because the removal of the prime minister means the resignation of the entire government.
Furthermore, the provisions of the Basic Law governing the prime minister’s removal due to criminal wrongdoing seem to set the bar for removal higher than the constitutional and statutory provisions that address ministers, deputy ministers and mayors. This might serve as an additional basis for distinguishing the existing precedents in the case of the prime minister. Articles 23(b) and 27 of the Basic Law provide that a government minister or deputy minister convicted of an offense with “moral turpitude” would automatically be removed from office once the verdict is rendered. Unlike the prime minister, they cannot remain in office until the verdict becomes final. Article 20 of the Tenure Statute provides that a mayor would be automatically suspended if convicted with “moral turpitude” until the verdict becomes final. No such provision exists in the Basic Law with regard to the prime minister, which indicates that the Knesset intended to bestow a more robust constitutional protection from removal upon the prime minister.
Moreover, judicial interference in this unique context creates problems for democratic legitimacy. If the court rules that Netanyahu is incompetent to serve as prime minister due to the criminal charges against him, it would essentially recognize the unelected attorney general’s power to remove a prime minister by indictment.
On the other hand, judicial approval of Netanyahu’s competence would send the message that pervasive corruption can be tolerated, even when it directly involves alleged abuse of the office of prime minister. Such a ruling could lead to a situation in which a prime minister faces a criminal trial while overseeing and working closely with the very institutions that participate in his prosecution. It would uphold a reality that creates a serious conflict between the prime minister’s self-interest and the best interests of Israel.
It would also be in tension with previous case law that required the dismissal or resignation of officials who faced serious indictments without waiting for them to be convicted, even though the Basic Law required removal only after conviction. Under existing case law, statutory removal requirements do not exhaust the circumstances in which an elected official’s tenure could be terminated due to alleged criminal wrongdoing. In fact, under existing law, Netanyahu was forced to resign from the four ministerial positions he had held in addition to being prime minister. The absurdity should be evident: How can it be that Netanyahu is legally barred from serving as an ordinary minister, but not as prime minister?
Finally, Israel’s parliamentary system means that barring Netanyahu from receiving the mandate to form a government—be it by decision of the president or as a result of a subsequent Supreme Court ruling—would not necessarily abrogate the will of those who voted for the Likud party. The prime minister is not elected directly but is the member of the Knesset who succeeds in building a majority coalition. And even then, the president has discretion in granting the mandate to form a government, so a different Likud member may be able to form a government.
Focusing on the president’s decision would arguably circumvent the problem—discussed in the excerpt above—of overriding the Knesset’s decision not to remove a prime minister already serving with its confidence. The president’s exercise of his discretion in allocating the mandate to form a government could serve as a hook for judicial review. As the Supreme Court just made clear, it would be lawful for the president to consider Netanyahu’s indictment (and possibly his previous failures to form a government) in assigning the mandate even if Netanyahu pulls together a majority coalition after the elections.
For these reasons, while the court’s wait-and-see approach may be prudent, it is also problematic. There is an argument to be made that if the court is to disqualify Netanyahu at some point, it is better to do so before the elections. First, the public has a right to know whether the head of the party they might be voting for, who personifies and tightly controls that party, is even eligible to continue as prime minister. Another round of elections that ends in deadlock because of questions and litigation about the eligibility of Netanyahu to serve as prime minister would further undermine an already fragile and nearly dysfunctional Israeli democracy.
Second, Netanyahu is currently a caretaker prime minister—that is, prime minister by default due to the political deadlock. He does not enjoy the confidence of the Knesset, having twice tried and failed to assemble a coalition capable of receiving that confidence. From a constitutional perspective, disqualifying a prime minister in the current situation is different from disqualifying a prime minister who heads a coalition that has the support of the majority of the Knesset and thus enjoys political and public legitimacy. It would not abrogate the will of the voters, expressed through their elected officials, to the same degree as disqualifying a prime minister who enjoys the confidence of the Knesset.
But the court’s decision to stay away from the matter for now means that this ship has sailed. If Netanyahu manages to secure a majority after the March elections, his political fate will come down to the outcome of the immunity vote and the president’s decision—and the likely review of these decisions by the Supreme Court. There is no telling what the political repercussions of such a constitutional showdown would be.
@ Edgar G.:””Some one was lamenting to old George II that the war-office had placed confidence in such a red-haired, daring, hot-brained young officer as Gen. Wolfe, and sent him to Quebec; adding, “Wolfe is mad, your Majesty.”—”Is he?” said the king. “I wish he would bite some of my other generals.” ibid
Edgar G. Said:
I am reminded of: “Quote Investigator: The story of Abraham Lincoln’s humorous response to criticisms of General Ulysses S. Grant’s imbibing is famous. The earliest instance QI has found appeared in the New York Herald on September 18, 1863: 1
‘After the failure of his first experimental explorations around Vicksburg, a committee of abolition war managers waited upon the President and demanded the General’s removal, on the false charge that he was a whiskey drinker, and little better than a common drunkard. “Ah!” exclaimed Honest Old Abe, “you surprise me, gentlemen. But can you tell me where he gets his whiskey?” “We cannot, Mr. President. But why do you desire to know?” “Because, if I can only find out, I will send a barrel of this wonderful whiskey to every general in the army.” ‘
@ Ted Belman: If Caroline Glick is correct, and she usually is, most Knesset candidates for Blue-White aren’t interested in sovereignty. If the Supreme Court bans Bibi from forming a government, Likud will then have difficulty even participating in negotiations for a new government, or much the less forming one. In order to make that kind of decision, the Likud will need a leader. But having chosen Netanyahu over Saar in a recent primary, it will take them time and some infighting to choose a new leader to succeed Bibi if he is forced out after the election. That will more or less eliminate the possibility that Likud will be part of the new government. As for Leiberman, the only way he can be part of a “sovereignty government” would be to join with other right wing parties, including the haredim. But he has made it clear he won’t serve with the haredim. This makes his tough talk about sovereignty meaningless.
I think that the only realistic possibility of a government being formed after the election would be a coalition between Blue-White and the haredi parties. Blue-White has sent out signals that he is open to such a coalition. So has the Ashkenazic haredi alliance(United Torah Judaism). Deri of Shas is strongly backing Netanyahu at this point. But he might change his mind if it becomes certain that Netanyahu won’t continue as Prime Minister and Blue-White offers him (Deri) immunity from prosecution.
The haredim really don’t care about national defense issues, Israeli-Palestinian relations or sovereignty. The only thing they really care about is money for their institutions. Blue-White could agree to that without compromising their principles on other issues. THey would still need the Arabs to either give them their votes of confidence or better yet, abstain. But that could probably be arranged. The Arab parties have been actively courting the haredim in recent months and trying to form an alliance with them. This is quite possible. The UTJ leader Litzmann, who is the Minister of Health in Bibi’s government, has always supported generous social welfare payments to the Arabs, and expressed friendship for the Israeli Arab community. And by the way, he is currently the object of three investigations by th epolice and attorney general, and also needs an immunity deal. If Gantz is willing to grant the the haredim money and immunity, and the Arabs are willing to go along in order to get rid of Likud and the right wing parties, plus more money for their sector, there is the basis for a deal that will give Gantz enough votes to form a government–although perhaps technically a minority government, with the Arabs abstaining. I don’t see any othe rpathway to a government after March2. Unfortunately, I think it will be a bad government.
I supported Saar in his attempt to take over the leadership of Likud. I reasoned that Bibi couldn’t get the support of 61 MKs but Saar could. Also Blue and White would join Saar’s government but not Bibi’s.
So far, as predicted, Bibi is dropping in the polls. The kingmaker is still Liberman. I believe Liberman will do what he says he’ll do. He will join a sovereignty government.
I do not think most Americans even know Israel is having an election. That Trumps fate is based on what Bibi does in the Israeli election is not credible. Billy Crystal is full of it.
I would speculate that after the Israeli election before a new government is formed Bibi will still be the interim PM and he will then apply sovereignty. The Israeli and US committee on were to apply sovereignty is already meeting. Israel has detailed maps that they are making available to the Americans.
This is the Caroline Glick article. She does a lot of research, and I think she is well informed. She does support Netanyahu and is attempting to advise him how to win the election. However, her information about the people who are backing and advising Gantz are probably true, and if it is, mean that a Gantz-Kehol-Lavon government will be bad for Israel.
@ Ted Belman:
By a large majority Israelis have chosen him to be the best leader. Hard to believe that he would have reasons inimical to Israel’s advantage IN THE LONG RUN. He does things that we, who can’t see into his chess oriented mind, have no idea as to his real motives,.until the end result becomes apparent. We all, including you, have matters we reserve from detailing to the public.Far more so a PM….
Also It would be beyond human nature for him not to try to better his own position in his present circumstances.
You at one time Ted, and other lawyers who practiced/practice, make/made their living from the self-concern of accused or wronged people. Netanyahu’s massive AND CONTINUING achievements for Israel, majorly exceed his errors in judgment, which we all have from time to time. His present legal problems are mostly faked or grossly exaggerated, as we all agreed.
By far, the best PM Israel ever had…..judging from results alone, including Israel’s present position and world regard..Before him, Israel was not important enough to be even mentioned…except by Arabs, Jew haters and the UN. Today they are still spouting, but there are other opposing voices against them. All achieved by Netanyahu as the spearhead.
Just my opinion, but, I believe fairly accurate, considering I know no more than others , and which we get from news outlets. But logical common-sense is part of my opinion.
As far as I’m concerned, he can smoke or hand out as many cigars and champagne that he can get hold of. It cost the State not a cent, And Sara can live the high life on the empty bottles refunds too. Get as much positive news publicity as he can -and more…
So:
If the Supreme Court rules on this that Netanyahu may not form a government before the election results are in – it is obviously a purely political action.
If the Supreme Court rules on this that Netanyahu may not form a government and Netanyahu HAS the votes – it will be obvious that they are plain foolish.
Agreeing to deal with this now – and assuming they do not wish to appear foolish – clearly indicates that the Supreme Court is a political and not a juridical body, and we have enough political bodies in Israel, so we should get rid of this one ASAP!
Since the Likud is firmly behind Netanyahu, IF Netanyahu has enough to form a government and the Supreme Court rules he may not form a government – Netanyahu can remain PM indefinitely.
Edgar G. Said:
Maybe his reason is a bad one for Israel.
@ Edgar G.:
It’s O.K. Ted, I found that article of Glick’s in I. Hayom. It’s a bit strange, (I don’t mean the article) as I wrote the very same thing on here a few weeks ago…that the PM needed to extend sovereignty or Israeli Law over at least the YESHA cities , towns and villages, or he’d certainly lose the election, that if he did extend, he had a very good chance of winning.
I also read somewhere about Benenson and etc, can’t recall where, but it was all there
@ Ted Belman:
What makes you think that the P.M. is a strong supporter of Humpty Dumpty. If he is. he must have what he thinks is a good reason…like keeping the border quiet during the Iran stuff..maybe. I can’t find that Glick article you mention.
Glick just penned a damning article on who Ganz and Blue and White really are. If you read said article and others she is currently writing, it is clear that she is carrying water for Netanyahu.
One more thing I think Netanyahu is a big supporter of King Abdullah and he is resisting the Jordan Option. He is the biggest obstacle. I want the court to rule against him.
I believe Liberman when he says he is in favour of sovereignty and will join a sovereignty government.
From today’s Arutz Sheva.
If an accurate guage of the direction that public opinion in Israel is flowing, this poll indicates that the tide favors Blue-White.
Thanks, Ted for republishing these older articles that shed light on my questions. I wish to remind everyone that the Supreme Court decided in late December to withhold ruling on the petition to bar Netanyahu from forming a new government, until and unless the issue required a decision from them. Journalists who follow court rulings took this to mean that they would probably defer ruling until after the March 3 elections, and even then only if it looked like Netanyahu would have the votes in the Knesset to form a government, and was asked to do so by the President. But the “Supremes” did not committ themselves to not ruling on this issue before the elections.
In the rather unlikely event that the right wing bloc wins a majority, and then the court rules that Netanyahu cannot lead or even serve in the new government, it is unlikely that the Likud could choose an alternative leader quickly enough to form a government within the time frame of at the very most 45 days that the President could grant them.
However, the issue probably will never come to a vote, because the latest polls indicate that Kehol Lavan will probably win enough seats to form a government, with the support or at least the absention of three or four “swing” parties, including the haredi Likud either excluded from it or playing a subordinate role, with Gantz as Prime Minister. The fact that Gantz has no legal problems (although I think he deserves to have them), while Bibi does, gives him a decisive advantage. Likud is extremely unlikely to get enough votes to lead a government when the voters know that Bibi will have to stand trial while still in office.
There is also a chance, although I think it is a small one, that Gantz will be unable to persuade enough members of the parties outside his bloc to either give him a vote of confidence, or abstain on the confidence motion, to give him enough votes to form a government. I think this is unlikely, but is possible, if both Gantz and his partner Lapid prove to be a poor negotiators. But I think that is unlikely.