Is it legal to ban Bibi from forming gov’t post-election win? - analysis

Could the Center-Left parties and Yisrael Beytenu to pass a new Basic Law banning Prime Minister Benjamin Netanyahu from forming a government because he has been indicted?

By YONAH JEREMY BOB
Blue and White leader Benny Gantz, Yisrael Beteynu chairman Avigdor Liberman and Prime Minister Benjamin Netanyahu (photo credit: REUTERS)
Blue and White leader Benny Gantz, Yisrael Beteynu chairman Avigdor Liberman and Prime Minister Benjamin Netanyahu
(photo credit: REUTERS)
Would it be legal for the Center-Left parties and Yisrael Beytenu to pass a new basic law banning Prime Minister Benjamin Netanyahu from forming a government because he has been indicted?
In the whiplash of Israel’s politics, the discussion has shifted dramatically since Tuesday when Israel was aflush with talk about whether Netanyahu would pass a new retroactive French law to indefinitely freeze his public corruption trial.
Those objecting to such a basic law start by attacking it as a “personal law” – a law being passed just to undermine a specific individual. Such laws are generally viewed as less democratic or antidemocratic since the idea of a law is to apply fairly to all citizens.
In addition, the idea of outlawing Netanyahu from being prime minister immediately after he was the winning candidate and his Likud party won the most seats could be viewed as anti-democratic.
However, multiple factors may let the Center-Left’s law go through and even get by any petition to the High Court of Justice.
First, the iron rule of Israeli law is that 61 members of the Knesset, for better or worse, can pass anything they want – whether it is the Netanyahu-friendly retroactive French law or a Netanyahu-banning law.
That is what happens when there is no constitution.
Regarding the “personal law” argument, Hebrew University rector Barak Medina said that this would not invalidate the proposed “Bibi-ban” because the law does not actually fully ban him.
It only bans him as long as he is indicted. If Netanyahu pushed to have his trial resolved on an expedited basis, say over a few months, and he was acquitted, he could return to being prime minister.
The proposed law also does not actually prevent the Likud from winning.
If the Likud were to choose a new leader, that leader would still command the largest Knesset delegation of 35-37 seats.
In terms of whether it is legally problematic to be passing this law against Netanyahu after the election and after the voters gave him their confidence, as opposed to before the election, Medina said that the High Court likely would not invalidate it on those grounds.
Medina said that though the High Court allowed Netanyahu to run for reelection over the “objection” of petitions to force his resignation before the election, the court did not dismiss the petition out of hand.
Rather, the High Court said that it had jurisdiction over the petition and could, at least theoretically, decide to force Netanyahu to resign after the election due to the indictment against him.
Though many observers believe the High Court would never have kicked Netanyahu out based only on the indictment, once the Knesset passes a new basic law, the court could say that the Knesset is merely doing something that the court itself might have chosen to do.
Another paradoxical move the High Court could take would be to use conservatism to let such a law through.
In other words, critics are always claiming that the High Court is too activist in striking down Knesset legislation. The court could simply say that it has no authority to strike down the new basic law.
It is also hard to imagine the court rescuing Netanyahu when he has been threatening to disassemble the entire legal establishment.
This does not necessarily fix the ethical-philosophical issues of blocking a man from being prime minister who “won” the election.
MKs from the Right were even comparing such a move to being worthy of Turkish President Recep Tayyip Erdogan, after Blue and White leader Benny Gantz attacked Netanyahu only days ago with the same accusation.
Yet, without justifying the Center-Left law, the Erdogan comparison is misplaced.
While Netanyahu did win a plurality of the vote, he did not win a 61-vote majority, even with his right-wing bloc.
In fact, if he had actually won a majority of the people’s support, this entire law would not be possible, and he might be moving ahead with his retroactive French law.
It remains to be seen whether the Center-Left will decide to go through with the law, along with the internal damage such a law may cause between sectors within Israeli society. But, legally speaking, there is really nothing to stop it.


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Avigdor Liberman