The High Court of Justice reconvened Monday for the second day of hearings on petitions against allowing indicted Prime Minister Benjamin Netanyahu to form a government, as well as against the unprecedented rotational unity deal he inked with Blue and White chairman Benny Gantz which demands significant changes to Israel’s semi-constitutional Basic Laws.
While Sunday’s seven-hour hearing discussed whether Netanyahu should be allowed to lead a new coalition in light of his indictment in three corruption cases — with justices hinting that they were unpersuaded by the petitioners — Monday’s deliberations concern the controversial aspects of the three-year coalition deal negotiated by Netanyahu and Gantz, which includes profound changes to Israel’s constitutional order, some of which contradict established laws, tradition and precedent.
The court is set to issue a ruling on both matters later in the week.
Like the first day of hearings, Monday’s discussions before an expanded panel of 11 justices were being broadcast live.
Netanyahu, in power since 2009, and ex-military chief Gantz faced off in three inconclusive elections in less than a year. With neither man able to form a viable governing coalition in Israel’s deeply divided 120-seat parliament, they agreed to a power-sharing deal last month, saying they aimed to avert a fourth vote opposed across the political spectrum.
But the deal faces eight petitions challenging its validity before the High Court. Five of the eight, submitted by anti-corruption watchdog groups and others, argue that members of Knesset indicted on corruption charges, such as Netanyahu, cannot be appointed prime minister.
Current law allows a prime minister to remain in power so long as he has not been convicted of criminal wrongdoing, with all avenues of appeal exhausted. However, the case of a prime minister under indictment being poised to establish a new government is seen as something of a legal blind spot.
As for the coalition deal, the main arguments against it concern specific provisions opponents say violate the law.
Under the deal, the government’s first six months will be dedicated primarily to combating the novel coronavirus that has infected more than 16,000 Israelis and ravaged the economy.
The agreement sees Netanyahu serving as prime minister for 18 months, with Gantz as his “alternate,” a new title in Israeli governance. They will swap roles midway through the deal, likely taking voters back to the polls in 36 months.
But Israeli law traditionally endows governments with four-year mandates, an issue pounced on by the deal’s opponents.
There is also a provision freezing certain public appointments during the government’s initial six-month pandemic emergency phase, which critics also say is illegal.
Questions have also been raised about the legal status of the new “alternate prime minister” title. Netanyahu, under indictment, is forbidden by law from serving as a minister, and judges must rule whether the new title is acceptable for a man in his condition.
Another issue set to be reviewed was the effort to legislate a so-called “skipping Norwegian law,” that will allow some of the eventually envisaged 52 ministers and deputy ministers of the new government to temporarily resign their Knesset posts to let new MKs into the parliament in their stead — but not according to their slate’s original order as current law dictates. This aims to allow Gantz to bring in new members of his faction into parliament while skipping members of the Yesh Atid and Telem factions, his former allies in Blue and White.
Also under contention is the provision that canceling the new legislation will require a special majority of 75 MKs — a clause demanded by Gantz to prevent Netanyahu from later overturning the legislation with a regular majority of 61 in the 120-member parliament and preventing him from serving as prime minister after 18 months.
Attorney General Avichai Mandelblit last week handed the court his legal opinion, saying that while “certain arrangements in the coalition agreement raise major difficulties… at this time there are no grounds to disqualify [it].”
He advised that problematic provisions be reviewed “at the implementation stage.”
If the judges deem the coalition deal invalid, Israel may be forced to hold its fourth election in less than two years.
Mandelblit, who indicted Netanyahu, also argued there was no legal basis to prohibit him from leading a government.
Thousands of Israelis have participated in a series of mass protests against the deal, while observing social distancing rules imposed due to the coronavirus pandemic.
From Tuesday to Thursday, focus will shift to the Knesset, where the new legislation is being pushed forward. It must become law by Thursday, as that’s the deadline for the Knesset to name a prime minister from among its ranks or call new elections. The Knesset is unlikely to approve the new government if the legislation ensuring the rotation deal between Netanyahu and Gantz hasn’t become law by then.
Sunday’s hearings regarding whether Netanyahu should be allowed to form a government were dominated first by representatives of Likud, Blue and White and the relevant branches of government, who all urged the court not to intervene in Netanyahu’s appointment. They were followed by the petitioners, who argued that the justices were obligated to step in.
At one point in the afternoon session, Chief Justice Esther Hayut pressed the petitioners to provide a basis for their demand that a lawmaker who was recommended by the majority of his Knesset peers to form the government be prevented from doing so.
“Show us something! A law! A verdict! From this country’s [history]! From [somewhere else] in the world! Something!” Hayut said. “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?”
At her side, her deputy, Justice Hanan Melcer, nodded in agreement.
Hayut also criticized one of the lawyers for the petitioners, Dapha Holetz-Lechner, for suggesting that “the whole fortress” would collapse if the court did not rule in their favor.
“That claim is inappropriate,” Hayut said. “No fortress will collapse” as a consequence of the court’s ruling.
Suzie Navot, a leading constitutional law expert, said near the close of the day’s discussion that the judges appeared to intimate they would not block Netanyahu, and seemed to be conveying a message of “What do you want from us? Do you want us to legislate for you?… It’s not our job. It’s the job of the Knesset.”
Netanyahu was charged in January in three separate cases with bribery, fraud and breach of trust for allegedly accepting improper gifts and illegally trading favors in exchange for favorable media coverage. He denies wrongdoing and his trial is set to start May 24.
Header: Supreme Court Chief Justice Esther Hayut (C) during High Court of Justice deliberations on petitions against Benjamin Netanyahu being appointed prime minister, on May 3, 2020. (Yossi Zamir/POOL)