The High Court of Justice is scheduled to begin Sunday hearing petitions asking that Prime Minister Benjamin Netanyahu be disqualified from forming a new government in light of the criminal charges against him. In a rare move, an expanded panel comprising 11 of the court’s 15 justices will hear the arguments.
Other petitions contest the coalition agreement between Kahol Lavan and Likud. Due to the significance of this hearing will be broadcast live. Supreme Court President Esther Hayut allotted two days for the hearings, one day for each topic.
Attorney General Avichai Mendelblit submitted his response to the petitions Thursday, saying that despite inherent difficulties, there is no legal impediment to tasking Netanyahu with the mandate to form a government. Mendelblit stated that the Basic Law on the Government stipulates that a prime minister’s term can be terminated only after the final disposition in the case, including all appeals. Moreover, he wrote, a previous ruling which calls for an indicted cabinet member to step down) does not apply to a prime minister due to the more significant role of a prime minister.
Mandelblit’s position riled the judicial community, evoking the dispute between two approaches: one side argues that the High Court should disqualify Netanyahu, the other believes it shouldn’t. Prof. Menachem Mautner, a leading expert on Israel’s constitutional law and the author of a book on Liberalism in Israel, believes that the attorney general’s position is the correct one. “I don’t subscribe to anything Netanyahu has done as prime minister and believe he has harmed this country, but the interpretation to Clause 18 in the Basic Law on the Government is that he cannot be barred from beginning his term. No other interpretation is possible” determines Mautner.
“The battle against corruption is very important, but it can’t come at the expense of the battle for human rights and the right of defendants” says Mautner. “We have to educate ourselves as a society that a person cannot be penalized before he is convicted by a court. A presumption of innocence is one of the most important principles of criminal law. Prof. Yoav Dotan has shown that there is no country in the Western world where a prime minister can be ousted only because a public servant in the state prosecutor’s office has decided to prosecute him.”
Mautner goes further than the attorney general, saying that the court cannot even debate the issue, let alone prohibit Netanyahu from forming a government. “The issue of what can come before a court has changed since the 1980s,” says Mautner. “The court can refrain from dealing with the issue as long as human rights aren’t violated. If this is the case now, it can decide that this issue is under the court’s purview. If the court disqualifies Netanyahu, what will the public reaction be? Masses will take to the streets and back those calling for a dismantling of the court. This could be done by appointing twice as many new judges, as was done during the New Deal in the United States, or by having judges retire at 60, as was done in Poland. The reaction could seriously hamper the court’s ability to protect human rights. The court is the paramount agent for instilling liberal values into Israeli culture and this could be damaged. The court should be realistic.”
“Politics is made on the ground, with people, not at the Supreme Court. Liberals are moving politics to the High Court arena, but the prime minister should be removed politically, not by the court. The second election was held after the indictment was filed. People knew this and still chose him. This is a weighty consideration that every liberal democratic system has to take into account. That’s democracy.”
Prof. Barak Medina, also an expert on constitutional law, believes the court should disqualify Netanyahu, saying that what applies to cabinet members necessitates this – or else they too cannot be barred from serving when indicted. Otherwise the Basic Law, which established minimal norms, is inconsistent, argues Medina. “The case is stronger when applied to forming a government, rather than terminating service,” he says. He disagrees with differences between cabinet members and a prime minister, as noted by Mendelblit. “[Interior Minister Arye] Dery also headed a supportive public in 1993 but the court removed him," he notes. "The question is what weight the court gives to non-legal considerations such as a fourth election if Netanyahu is disqualified, or the harm done to the court’s status, or the coronavirus crisis.”
Medina also doesn’t agree with Mautner and the attorney general with regard to arguments that the will of the voters who backed Netanyahu despite the indictment must be respected. He says that mayors, who are elected directly, are also removed from office by courts when necessary. “If Netanyahu is not barred, the clause regarding cabinet members or mayors is also annulled,” argues Medina.
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