High Court delays decision on Netanyahu's legal right to form a new government

(JNS)—Following a preliminary hearing on Tuesday by Israel’s High Court of Justice on the question of whether an indicted lawmaker can be tasked with forming a government, a three-judge panel ruled that a decision will be handed down at a future date.

The hearing followed a petition filed by 67 citizens with academic, security and culture backgrounds arguing that even though Israeli law allows a prime minister to continue serving in his position until proven guilty in court—and even until all appeals are exhausted—the same law should not permit a candidate under indictment to be tasked with forming a government and becoming prime minister.

Netanyahu submitted a letter to the court on Monday countering the basis of the petition, writing: “In a democracy, the people decide who leads them and no one else. Otherwise, it’s not a democracy. This petition is an attempt to drag the court into an issue which is not under the court’s jurisdiction. The respectable court has no authority in this matter, and the issue should not have been brought before it. It should have been left to the decision of the voters. For this reason alone, the petition must be rejected out of hand.”

Netanyahu added that the law already specifies that a prime minister “can serve until convicted in a final ruling for transgressions that carry with them moral turpitude... There is no reason to veer from this constitutional principle, outlined in the Basic Law and in an explicit law only because a specific prime minister is not liked by the petitioners.”

He is not alone in his rejection of the court dealing with this issue. Political leaders on all sides of the spectrum have criticized the petition. One of Netanyahu’s political opponents, Knesset member Ofer Shelah of the Blue and White Party, told JNS, “In my opinion, it would be best for the courts not to invalidate Netanyahu from putting together a government. It is best for the public to make this decision and not the court.”

Professor Yedidia Stern, vice president of the progressive Israel Democracy Institute, told JNS that “it would be far-reaching judicial activism to establish that the president cannot give the mandate to form a government to someone who the citizens of the country vote for, assuming that they vote in high numbers of Netanyahu. It is better for decisions regarding who the country’s leader will be to remain in the hands of the citizens and not the legal system.”

Stern added that if Netanyahu wins the next election, “I believe the president should not be held back from giving [him] the mandate to form the next government even while under indictment.”

Professor Aviad HaCohen, president of the Shaarei Meida U’Mishpat Academy and an expert in constitutional law who has argued cases before the Supreme Court, said on Monday that “given the politically explosive nature of this case, one can assume that the judges will listen to the petitioners, but it would be best for them to make their decision after the March election.”

He noted that at this point, such a ruling would be purely “theoretical,” as Netanyahu has yet to win the election.

Even once it is no longer theoretical, HaCohen said, the court should be careful not to overstep its boundaries.

“In general, I think that the courts should do whatever it can to refrain from dealing with subjects which are mostly political and societal and not law,” he said.

Meanwhile, Israel’s Attorney General Avichai Mandelblit has declined a court request to issue his opinion on the matter due to the theoretical nature of such an opinion. He said that he would issue an opinion only if Netanyahu wins the election, and the president then considers tasking him with forming a government.

The petitioners, on the other hand, have argued that voters deserve the right to know whether or not Netanyahu will be allowed to form a government before they go to the polls.

Members of the Likud Party have stated that should the court invalidate Netanyahu from forming a future government, the Knesset can employ a mechanism to overturn the ruling.

Knesset member Miki Zohar said that “if the High Court makes the scandalous decision to mix into politics and prohibit Netanyahu from forming a government, we will pass the override clause,” which refers to a bill that would allow a Knesset majority to overrule a decision made by the court.