Attorney-General Avichai Mandelblit late Thursday night confronted attempts to have the High Court of Justice declare as unconstitutional changes to basic laws that could permit Prime Minister Benjamin Netanyahu to maintain immunity from prosecution after becoming alternate prime minister under the agreement that established the current national-unity rotation government.
Following a November 12 interim order by the High Court that indicated the justices were suspicious of the constitutionality of the changes, Mandelblit doubled down.
Signaling that the justices were taking seriously the petition to negate changes made to the basic laws, the November 12 order expanded the number of justices hearing the case from three to nine.
This conflict has a different meaning now that the government is likely to disband itself due to irreconcilable political differences between the Likud and Blue and White before the High Court even steps in.
However, should the parties succeed in working out their political differences, the High Court battle will remain in play and could still topple the coalition.
Mandelblit rejected the attacks on the changes to the basic laws on multiple grounds.
It was unclear whether the High Court could ever strike down a quasi-constitutional basic law, he said. In any event, if it were possible, it would need to be a far more extreme law, implying something criminal or actively undermining democracy, he added.
Furthermore, Mandelblit rejected the notion that the coalition was abusing or ignoring the will of the voter by forming coalitions they had vowed not to form.
In Israel’s party-based representative democracy, the voter picks a party, and that party represents the people’s will, even if it takes some unpredictable decisions based on complex circumstances, he said.
Moreover, Mandelblit said a national-unity rotation government could not be unconstitutional, since Israel had such a government in the mid-1980s.
Some of the High Court justices made the same point at a hearing on October 27 when the High Court met concerning a host of constitutional issues.
One issue was whether Netanyahu, who is to be tried on several counts of corruption, could be forced to resign when he is due to exchange roles with Blue and White’s Benny Gantz, the alternate prime minister, next November.
The petitions filed by various parties questioned whether the role of alternate prime minister, its authority and aspects of the coalition agreement between Likud and Blue and White are constitutional.
In May, the High Court allowed Netanyahu to form his coalition and affirmed that the main principles of the rotation agreement were constitutional. But it delayed ruling on Netanyahu’s possible fate and other aspects of the deal.
Petitioners, including the Movement for the Quality of Government in Israel, Meretz and the Guardians of Israeli Democracy, argued that Netanyahu must resign when he no longer has the unique protection of the office of prime minister.
They have said creating immunity for the position of alternate prime minister and allowing him to stay in office under indictment until conviction and all appeals are exhausted (identical to the protections afforded to the prime minister) is unconstitutional and contradicts 25 years of High Court rulings.
Mandelblit, who indicted Netanyahu, has told the High Court he views the alternate prime minister’s role as constitutional.
The Knesset used its sovereign authority to pass basic laws to change aspects of the government’s powers, including creating the position of alternate prime minister, he said. The legislature has the authority to create a new position beyond previous High Court precedents, based on past laws, he added.
From the outset of the October hearing, Supreme Court President Esther Hayut pressed the petitioners hard, saying they would need to convince her, Vice President Hanan Melcer and Justice Neal Hendel that they could intervene, even though the court has never previously struck down a basic law.
The Movement for the Quality of Government in Israel’s lawyer, Eliad Shraga, argued that the High Court has always had a comprehensive responsibility to protect Israeli democracy.
Furthermore, the Basic Law: Dignity and Freedom of Man had empowered the court to strike down a wide variety of laws to maintain Israeli citizens’ basic freedoms.
Shraga labeled changes to the basic laws by Likud and Blue and White “a mega-attack on Israeli democracy” to which the court could not turn a blind eye and pretend that it was a technical side issue.