A-G refuses to tell High Court his view on PM eligibility - again

On Sunday, the High Court set a hearing for December 31 for Mandelblit to argue before it along with other parties about whether Netanyahu can form a government.

By YONAH JEREMY BOB
ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state. (photo credit: MARC ISRAEL SELLEM)
ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state.
(photo credit: MARC ISRAEL SELLEM)
Attorney-General Avichai Mandelblit on Thursday refused, a second time, to tell the High Court of Justice his view regarding whether Prime Minister Benjamin Netanyahu is eligible to form a new government.
His refusal placed into the spotlight a nearly unprecedented break between his office and the High Court over the handling of issues related to the prime minister, and could have wide repercussions for the nation.
On Sunday, the High Court set a hearing for December 31 for Mandelblit to argue before it, along with other parties, about whether Netanyahu can form a government. It also ordered Mandelblit to submit a legal brief on the issue by December 29.
The High Court issued this order after it had already requested Mandelblit’s view once. The attorney-general had said that he would not give his view unless the High Court explicitly declared that it was going to rule on the issue preelection. While the implication of the High Court’s order was that it will in fact make a decision about Netanyahu’s eligibility preelection, the attorney-general said that this was not good enough. Rather, he said he would not give his view until the High Court explicitly stated in a formal order that it would be deciding the issue preelection.
In that light, Mandelblit suggested that the December 31 hearing be used to argue over the issue of whether the court should decide the issue preelection.
If the court then decides it wants to determine Netanyahu’s eligibility preelection, then Mandelblit will request additional time to give his view on the eligibility issue itself.
Netanyahu reacted to the Sunday High Court ruling by questioning the right of the Supreme Court to intervene. “In a democracy, only the nation decides who will lead the nation and no one else,” he told Likud activists at a campaign rally in Jerusalem.
Former justice minister Ayelet Shaked said Sunday that only the president can decide who gets to form a government and the Supreme Court cannot intervene. She said that was clear in the law. “Trampling Basic Laws or twisting them is a grave mistake that will lead to the public losing trust in the legal system and a feeling that a coup is taking place,” Shaked warned.
Even the prime minister’s challenger in the Likud leadership race, MK Gideon Sa’ar, defended him. “The question of whether Netanyahu can form a government is not a legal question but a political one, and it is not right for the Court to get involved in the matter,” Sa’ar said. “The law is clear: A prime minister must be replaced in the ballot box and not in court.”
Although Mandelblit had refused to take a definitive side last week, his remarkable legal opinion summarized both sides of the question, on an issue which could determine the fate of the nation.
He summarized arguments about whether the voters had a right to know the court’s decision preelection, or whether the very act of the court issuing an opinion preelection would be an undue interference with voters’ right to choose. All of this has come to a head, following Mandelblit’s own decision to issue an indictment against Netanyahu for bribery and other crimes on November 21.
However, there are disparate legal arguments about whether Netanyahu must resign in the near future because of the indictment, or whether he can stay in office until a future potential conviction and the exhaustion of all appeals. Since that question itself is ambiguous, there is also a lack of clarity about whether the court must weigh in preelection.
A group of hi-tech officials filed a petition earlier in December pressing the issue. In response to the petition, Mandelblit said that the complexity of the issue and the massive consequences it carried for the country mandated that the High Court confirm it would decide the issue.
By the very fact that Mandelblit did not take the court’s initial order to give his opinion and suggested that the court had to effectively “convince” him that it was going to determine the issue, he hinted that it would be better for the judicial establishment to let the voters decide. He also said that he would prefer that the court come to a conclusion without him having to weigh in at all, with the court being able to note that he effectively took a neutral stance on the question.