THURSDAY, March 28, 2024
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In marathon hearing, Israel's top court debates Netanyahu's fate, legalities of his coalition

In marathon hearing, Israel's top court debates Netanyahu's fate, legalities of his coalition

JERUSALEM - Israel's democratic process and the fate of its long-serving prime minister, Benjamin Netanyahu, came under unprecedented legal scrutiny Sunday and Monday, as the country's Supreme Court explored whether a person indicted on charges of serious crimes should be allowed to form a government and whether an agreement signed by Netanyahu with his main rival to end a year-long political stalemate was legal.

The proceedings could have serious implications - not only for the future of the Israeli leader but also for the judiciary and the political system in general - if the final verdict derails the government that Netanyahu is trying to form with onetime challenger Benny Gantz. 

Netanyahu's supporters and members of his ruling Likud party have warned that a court decision rejecting significant parts of the coalition deal signed with Gantz's Blue and White faction as unconstitutional or illegal could trigger yet another general election, a fourth round of voting since April 2019. 

Political pundits warn that if that happens, the judiciary's role and its tenuous relationship to the executive and legislative branches owill face harsh scrutiny and criticism in a new election, a race playing out under the shadow of the coronavirus pandemic and its economic fallout.

In a move similar to steps being taken this week by the U.S. Supreme Court, which will make its oral arguments accessible to the public, Israel's highest judicial body broadcast its marathon review live for the first time due to the new coronavirus restrictions. 

During the seven-hour session Sunday, the 11-judge panel, donning face masks and divided by plexiglass, heard legal arguments for and against allowing a lawmaker facing criminal charges to become prime minister. In November, Netanyahu was indicted in three graft cases, but his trial, slated to start in March, was postponed until May because of the covid-19 outbreak. 

On Thursday, Attorney General Avichai Mendelblit wrote in a legal opinion to the court that Netanyahu faces no legal impediment to being tasked with forming a government. The Basic Law on Government, the core of Israel's constitution, is clear, he wrote - a prime minister's term can be terminated only after he is convicted and all appeals have been exhausted. 

In the hearing Sunday, Netanyahu's lawyer argued that the court has overstepped its boundaries in even discussing who is fit to form a government.

"I argue that this is a question that is not justiciable, that the law does not give the court the authority to interfere in this matter," said Michael Rabello. "How can it be said that this panel can replace the voters? That we lawyers can come and replace all the state's leaders who tried to persuade the electorate three times and that's what the voters said?"

A lawyer for Israel's parliament, the Knesset, similarly argued that it should not be up to the judiciary to decide on the appointment of a prime minister but that it was the role of the country's 120 lawmakers who were elected by the public. 

But Dafna Holz-Lechner, a lawyer representing a collection of legal petitions filed by individuals, human rights groups and political parties against Netanyahu, pressured the court to issue a verdict. "An independent legal system is the last fortress of human liberty in our day," she said. "If the fortress falls, there is no one to rescue the person who is ground between the millstones of arbitrary authority."

Gadi Taub, a senior lecturer at the Federmann School of Public Policy at Hebrew University, said the authors of the law allowing a prime minister to remain in office had considered such intervention by the judiciary. He said the legislation was written to "prevent an attempt by the civil service to usurp the election." 

"The fact the court is even deliberating this is an amazing feat of audacity. No judiciary in the world has as much powers as the judiciary in Israel," he said. "If they nullify the results of the election, which is extreme, there will be a fourth election, and it will all be about the authority of the Supreme Court." 

The debate over the court's authority to interfere in the decisions of elected officials continued Monday, as key sections of the coalition agreement signed on April 20 between Netanyahu and Gantz were discussed. 

Gantz, who campaigned against Netanyahu remaining in office through three rounds of voting, said the current crisis forced him to join forces with Netanyahu, but the mistrust between the two leaders is reflected in many parts of their agreement. 

Described by political commentators as a unique and personal arrangement, it directly contradicts some of the country's long-standing political customs and even its basic laws. Among the problematic points, the court on Monday discussed the three-year rotation arrangement allowing first Netanyahu and then Gantz to serve as prime minister for 18-months each and creating a new position of deputy prime minister while the other fills the top job.

But Amir Fuchs, head of the Defending Democratic Values Program at the Israel Democracy Institution, said that during Monday's hearing, the judges appeared to take particular issue with facets of the coalition agreement dealing with top public appointments, the failure to include opposition lawmakers in certain parliamentary committees and the forming government's intention to refrain from passing any non-coronavirus related legislation during the first six months. 

"On the big issue of whether Netanyahu can be prime minister, I don't believe the court will intervene, but they might intervene on some issues that Likud could say are important and lead them to stop the agreement," he said. 

While there is no strict deadline for the court to reach a verdict on either matter, Fuchs speculated that it would likely issue some form of declaration before Thursday, which is the deadline for Netanyahu and Gantz to formally present their new government. 

 

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