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Looming High Court verdict on Netanyahu-Gantz government

Israel’s High Court of Justice is expected to render rulings on the legality of continued rule by Prime Minister Benjamin Netanyahu and his national emergency government no later than Thursday, 7 May.

This is the deadline for a parliamentary vote in which a majority of 61 Members of Knesset (MKs) of the 120-seat plenum must either approve the proposed next government, appoint a prime minister from their own ranks – or call a dreaded fourth election.

An expanded 11-member judicial panel heard oral arguments on 3-4 May from opposition parties, anti-corruption and democracy watchdogs; who had filed 8 separate petitions that challenged the legality of Netanyahu to lead the government while under indictment of three criminal charges and the coalition deal he signed with his former rival and current political partner Benny Gantz. The Likud and Blue and White leaders declared a power-sharing deal last month they said was aimed at preventing yet another election, in the wake of inability by either candidate to form a viable coalition after having faced off in three closely-contested and ultimately inconclusive elections in less than a year.

Chief Justice Esther Hayut explained that 5 of the claims “related to tasking forming a government on a lawmaker who is charged with ethical crimes,” while the remainder “related to the validity of the instructions of the coalition deal which was signed on April 20, 2020 between the Likud faction in parliament to the Blue and White faction in parliament to form the 35th government of the State of Israel.” During the highly unusual live telecast of the hearings, the Justices were seen wearing face masks and separated by plastic barriers in compliance with government restrictions aimed at containing the coronavirus epidemic.

Netanyahu is Israel’s longest-serving Premier who has held the reins of power for more than a decade and is currently heading a caretaker government. The 70-year-old leader was indicted by Attorney General Avichai Mandelblit in January for having committed bribery, breach of trust and fraud involving three separate cases. He has steadfastly maintained innocence of any wrongdoing, and his trial is set to open 24 May after being delayed by coronavirus-related restrictions.

The first High Court hearing on Sunday focused on Netanyahu’s legal woes and began with defense arguments. Netanyahu’s legal representative Michael Ravilo maintained it was “inappropriate for the court to intervene in the constitutional judgment of the people and the members of Knesset” and that his client was elected in “a constitutional process, not an administrative one.” Ravilo was rebuked by Chief Justice Hayut for having insisted “it would have been better” if the High Court had immediately dismissed the petitions instead of adopting a “stance that everything is judge-able” and involving itself in what he claimed were exclusively “political issues.” Hayut firmly responded that “This court has never stated that” and rejected Ravilo’s claim as “populist” and “most unfortunate.”

Likud lawmakers also warned the justices that a verdict undermining any aspect of the coalition deal would likely trigger a snap election, as the country continues trying to recover from the coronavirus crisis and its economic fallout.

During petitioners’ presentations later in the afternoon, founder of the Movement for Quality Government in Israel Eliad Shraga maintained that failure by the justices to take action would undermine public faith in government institutions. It was also argued that existing law mandating resignation by any ministers or mayors upon criminal indictment must also be applicable to the premiership.

In apparent rejection of this plea, Chief Justice Hayut responded, “Show us something! A law! A verdict! From this country’s [history]! From [somewhere else] in the world! Something!” As her fellow Justice Hanan Melcer nodded in visible assent, she went on to proclaim, “After all, [you’re asking us to set] a global precedent! You want us to rule without a basis simply according to your personal opinion?”

Chief Justice Hayut also dismissed an allegation by lawyer Daphna Holetz-Lechner that failure by the High Court to rule against Netanyahu and the coalition deal would bring down “the whole fortress.” Holetz-Lechner represents around 70 hi-tech officials who had also filed a previous petition attempting to bar Netanyahu from even entering the last election on 2 March. “That claim is inappropriate,” Hayut shot back, saying “no fortress will collapse” as a result of a High Court decision.

Monday’s deliberations centered on controversial aspects of the power-sharing agreement negotiated by Netanyahu and Gantz, which petitioners say violate established legal precedent and more importantly, contravene Israel’s Basic Laws – which serve as a de facto constitution.

For example, the agreement calls for the creation of a new “Alternate Prime Minister.” The rightwing Netanyahu would serve first as Premier for 18 months with the centrist Gantz as his “alternate;” after which the two would switch roles for another 18-month period. Both would live in official residences – and be exempt from the law for “regular cabinet ministers” to step down if indicted. The High Court has been asked to rule on whether it is legal for the two leaders to establish such conditions and the position itself on their own.

The 3-year tenure as set out by the deal is also contrary to the 4-year mandate for Israeli governments.

Another issue in the deal between the Likud and Blue and White leaders is a moratorium on the appointment of several senior government officials during what they delineated as an initial six month phase limited to the fight against COVID-19, which also includes any new legislation. Chief Justice Hayut queried, “what does coronavirus have to do with the appointment of senior officials, such as the police chief – which for the past year and a half has been filled by an interim official?” Justice Uzi Vogelman also addressed the matter, pointing out that such critical designations have already been delayed far too long by the political deadlock that has prevailed since May 2018.

The High Court must also review a clause inserted by Gantz that would require a special 75-MK super-majority to overturn any new legislation in place of a traditional simple majority, as a means to prevent any attempt by Netanyahu and his allies to back out of the rotating premiership arrangement a year and a half from now.

The two leaders’ enactment of the so-called “skipping Norwegian law” has also been called into question. The move would facilitate “temporary resignation” of Knesset seats currently filled by their proposed-52 minister and deputy minister- cabinet, for turnover to new lawmakers who were not listed on pre-election party slates. The maneuver would allow Gantz to then appoint members of his own party as MKs – at the expense of his former political partners from the Yesh Atid and Telem factions, who left the pre-election alliance after he unexpectedly formed a new pact with Netanyahu.

As the proceedings were conducted, several dozen protesters staged an anti-Netanyahu demonstration outside the courtroom. Many wore face masks reading ‘Crime Minister’ and waved Israeli or black flags. 55-year-old art therapist Hadas Maor told Reuters, “We don’t want a dictator here, we don’t want a prime minister who is a criminal.”

Thousands of others participated in earlier demonstrations against the emerging Netanyahu-Gantz coalition deal at the central Rabin square in Tel Aviv on 2 May.

Attorney General Avichai Mandelblit wrote in his court-ordered opinion that while “certain arrangements in the coalition agreement raise major difficulties” and that Netanyahu’s indictments “raise significant problems,” … “at this time there are no grounds to disqualify [it].”

Other legal experts and good governance groups disagree.

The Israel Democracy Institute (IDI) issued a statement, headlined: “Allowing Netanyahu to Form a Government Would Constitute a Conflict of Interest and Would Result in a Negative and Irreversible Precedent for the Rule of Law.”

According to a “detailed opinion” prepared by IDI experts, Prof. Mordechai Kremnitzer, Prof. Yuval Shany and Dr. Amir Fuchs, “criminal indictments against the Prime Minister place him in grave conflict of interest, undermines public trust in government, and sends a negative message as to the importance of maintaining proper ethics in public service.” The opinion “further contends that the charges against Mr. Netanyahu – bribery, fraud and breach of trust – are incompatible with the need to ensure that a public servant is worthy of serving as public trustee.”

The IDI experts wrote that “the tenure of an elected public servant accused of such serious offenses, creates serious discrepancy between the standards applicable to the prime minister and to other public servants who are required to suspend themselves in case of a serious offense, in a manner that violates the principle of equality before the law.” They also maintained that “Exempting the prime minister, who is the paramount figure in public service, from upholding these ethical principles, undermines the moral basis for the entire system and will inflict serious damage in the struggle against corruption in government.”

Moreover, the IDI panel found, “Prime Minister Netanyahu’s references to the indictments, and to the investigators and attorneys who investigated and charged him (and in particular the call to “investigate the investigators”) highlights the sharp conflict of interest and the possibility of thwarting the legal process that will exist as a result of his position as the executive who is responsible for the law enforcement agencies while at the same time his personal position is one of a suspect and a criminal defendant.” They insisted that “the situation in which the Prime Minister is under indictment would constitute a negative and irreversible precedent for public norms and the democratic character of the state.”

In the event that the High Court should rule that Netanyahu should not be barred from forming a government, the Israel Democracy Institute called on Attorney General Mandelblit to “consider ruling, either now or in the future, that the prime minister is legally incapacitated and is unable to fulfill this role.”

For his part, Netanyahu insisted yesterday that the High Court “does not need to interfere” in what would amount to countering “the clear expression of the will of the people.”

He also underscored that any ruling against the coalition agreement “increases the chances that we will be dragged to fourth elections,” which he describes as “a catastrophe.”