Can Netanyahu Legally Be Prime Minister?

Israel’s Supreme Court convened Sunday morning to discuss whether the president can ask an indicted person to form a government.

The law specifically states that a person can serve as prime minister under indictment. Previous court decisions forbade a person under indictment to serve as a minister. The result of a judicial decision that prevents such person from forming a government is obvious: a fourth election. So, this is a highly charged question — legally, politically and socially, because the court’s activism is a hotly debated issue.

Eleven justices convened to hear the arguments for and against letting the prime minister continuing to serve. The session was broadcast live, and the notes below are written at the end of a long day of watching the proceedings.

1. What’s good for Netanyahu?

The bottom line is: if the court lets Benjamin Netanyahu form a government, Netanyahu wins. If the court doesn’t let him form a government, he probably still wins. In the latter case, Israel has another election, and judging from the polls, Netanyahu has every reason to assume that he will win handily. His next move will then be to enact a new law that annuls the court’s decision.

Netanyahu has two options for winning. The first allows him to remain as prime minister at the head of a wide and incoherent coalition. The second gives him a chance to get his coveted majority of right-wing-religious parties, but he runs the risk of not winning the next election.

2. What’s the legal argument against Netanyahu?

In the 90s, the court ruled that a prime minister must dismiss a minister when the minister is indicted. In the same way, the court can forbid the president from asking an indicted Member of Knesset to form a government. According to this argument, the fact that this MK currently serves as prime minister is irrelevant.

3. What’s the legal argument for Netanyahu?

Ministers can be dismissed by the prime minister. Dismissing the prime minister is something that only the parliament can do. This is one of the core principles of Israel’s political system.

Since the majority in parliament wants Netanyahu to be prime minister, the court must not intervene. Moreover, the Knesset specifically determined that a prime minister can serve under indictment. Hence, it is clear that the Knesset had no intention of making an indictment of a prime minister a cause for termination of his term.

4. The Knesset’s role

Can the MK’s vote for an indicted MK to become prime minister? One of the arguments against such idea was as follows: The MK’s vote for Netanyahu follows a preceding agreement — the coalition agreement. If the coalition agreement is illegal, then what the MK’s do by following it (supporting Netanyahu) is void. This raises the question: Is the coalition agreement illegal? The plaintiffs say yes. The court will hear their arguments on this issue tomorrow (Monday).

5. The president’s role

An intervention by the court could target both the Knesset and the president. It could restrict the ability of MK’s to elect the prime minister they deem fit. It could also chain the president by mandating that his ability to choose which MK gets the mandate to form a government is limited to a person not under indictment. That is, even when the president knows that such restriction means a failure to form a government.

And remember, there is no specific law mandating that the president cannot ask Netanyahu (or any other indicted Member of Knesset) to form a government. If the court makes such decision, its critics will say that this is a clear case of “legislating from the bench.”

6. Legislating from the bench

The critics were unhappy with the court’s decision to consider the case. They were worried that the court intends to legislate from the bench because that is what happened when the court forced Prime Minister Yitzhak Rabin to dismiss the indicted Minister Aryeh Deri and the indicted Deputy Minister Raphael Pinchasi from their positions. There was no law then that a minister could not serve under indictment. The court created this law. Some of the plaintiffs in the Netanyahu case made a similar plea. They argued that the court must fill a legislative vacuum and design a norm according to which an indicted MK cannot be prime minister.

Rabin was not pleased with the decision against him. He thought that the court overstepped its mandate. Today, some of those pretending to be Rabin’s heirs asked the court to decide in the same way that made Rabin unhappy.

7. Consistency and politics

The justices might be too eager to educate and restrain the politicians, but they are not dumb. One of the things they do efficiently is expose the many inconsistencies in the positions of both supporters and opponents of Netanyahu.

Example: The legal counsel for Netanyahu did not have a good answer to the question of what happens if the current Knesset decides to legislate that Netanyahu cannot form a government.

On the one hand, the prime minister argues for the supremacy of the Knesset (when it decides to vote for Netanyahu’s government). On the other hand he is likely to argue that the Knesset cannot change the law after an election under a certain assumption (if it decides to currently change the law to forbid Netanyahu from forming a government). On the other other hand he also must argue (when the next case comes before the court, tomorrow) that the Knesset can change a basic law even though an election were held under a certain assumption. He must argue for it, because the agreement on which the next coalition is based necessitates a change in basic laws (to appoint the newly created “alternate Prime Minister.”)

8. Let’s just admit it

The question before the court is a highly charged political question and hence consistency is rare. What Netanyahu says today (as the slated prime minister) is the opposite of what he demanded when he was the head of the opposition (and Ehud Olmert was prime minister). In the same way, Netanyahu’s rivals, who just two weeks ago cried foul when the Speaker of the Knesset did not let the majority have its way and elected Benny Gantz to be the new speaker, now cry foul when the majority wants to have its way and elect Netanyahu as prime minister.

9. What will the court decide?

I don’t know. Luckily, it must decide quickly. If there is no decision and no political progress by Thursday, Israel will be forced into a fourth election.

But like everyone else, I have my own view and I share it not because I consider it especially important, but because of my awareness that no matter how hard I try to be impartial my personal view probably colors the way I write about this issue.

My view is that the court must let the legislative branch play its role and vote for the prime minister of its choice, unless such vote contradicts a clear law. I am not convinced that there is such law.

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