High Court moves to decide limits on PM’s powers pending trial

Future state attorney, police chief, judges in the balance

PRIME MINISTER Benjamin Netanyahu encourages Israelis to cover their mouths when they cough or sneeze, during a press conference in Jerusalem on March 12.  (photo credit: OLIVIER FITOUSSI/FLASH90)
PRIME MINISTER Benjamin Netanyahu encourages Israelis to cover their mouths when they cough or sneeze, during a press conference in Jerusalem on March 12.
(photo credit: OLIVIER FITOUSSI/FLASH90)
The High Court of Justice on Thursday moved closer toward deciding the limits on Prime Minister Benjamin Netanyahu’s appointments and legislative powers pending his January trial for public corruption.
While Netanyahu lawyers Michael Ravilo and Yossi Cohen asked the High Court to stay out of the issue or only intervene in a narrow way. High Court President Esther Hayut responded, “Now there is a new reality. On the table is the definitive legal opinion of the Attorney-General. Some of it you agreed on, and some of it you didn’t. You want to go back to the stage of negotiations, but that is already over.”
At stake are several momentous issues that impact the balance between the executive branch and the legal establishment proceeding forward, and over which Netanyahu and Attorney-General Avichai Mandelblit have been negotiating over for months.
Critically, Mandelblit has also publicly said he would likely not support ousting Netanyahu if the prime minister agreed to the conflict of interest arrangement.
First, there is the question of whether Mandelblit can impose a conflicts of interest arrangement upon Netanyahu – effectively keeping him out of appointments or legislative issues that could impact on his trial – or whether the attorney-general’s view is non-binding legal advice and that only the High Court has the power to make a binding decision.
Second is whether Netanyahu will be forced to agree to limitations on his powers, which he has rejected or whether he will succeed – through court order or otherwise – in staring down Mandelblit.
For example, Netanyahu’s lawyers on Thursday claimed that they had reached an agreement on 80% of the conflicts arrangement issues with Mandelblit and that only 20% remained in dispute.
Netanyahu’s lawyers asked the court to limit its decision to whichever position was more reasonable on that remaining 20%. The state’s lawyers instead, asked the High Court to rule that Mandelblit’s view was binding, essentially ending the dispute over that issue.
Connected to all of this is the looming question of who will fill the role of State Attorney, the most critical appointment being fought over between the sides. The position has been empty since Shai Nitzan stepped down in December 2019. But that is only one on a long list of issues.
After months of negotiations between Mandelblit and Netanyahu, it was on November 2 that the attorney-general publicized his view of limits on Netanyahu’s powers.
The limits included that Netanyahu could not be involved in appointing the next attorney-general in 2022, the next state attorney and police chief, processes which are already underway, Jerusalem District Court or High Court judges and top officials in the police anti-fraud unit.
In addition, Netanyahu would be banned from involvement in the Communications Ministry and any government decisions impacting witnesses or other defendants in the trial.
Finally, the prime minister would be prohibited from involvement in legislation that could impact the trial, such as the French Law which could grant him immunity, or the Circumvention Law, which could empower the Likud to override a conviction by the Supreme Court following a conviction by the District Court.
Netanyahu has fought hard against many of these limitations since his office and Mandelblit’s office started negotiating the arrangement in May when the government was formed.
The prime minister’s lawyers have said he would agree to stay out of law enforcement appointments and out of issues involving witnesses in his trial.
However, Netanyahu rejected having to stay out of judicial appointments or legislative issues, saying these were unrelated to his trial and an improper infringement on his primary powers as prime minister.
Several NGOs and lawyer-activists were pressing for the High Court to impose an even stricter conflicts arrangement than what Mandelblit had put forth.
They said that also ministers who Netanyahu directly controls could not be involved with law enforcement appointments. Critics of Netanyahu say he has used loyalists in the Likud to influence or freeze appointments.
For example, no state attorney has been appointed since May despite Justice Minister Avi Nissenkorn’s efforts.
On November 8, a committee moved forward with vetting 13 candidates, but many still suspect Netanyahu of using Likud cabinet members to block finishing the process.
Along those lines, the Movement for the Quality of Government in Israel urged  the High Court to finalize the decision because the government can not further delay making critical appointments like the state attorney.
Mandelblit has said that he cannot continue to defend the government delaying the issue.