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.
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.