The High Court of Justice on Thursday night rejected a petition to declare Prime Minister Benjamin Netanyahu unfit to continue leading the country due to his public corruption case, but left the door open to revisiting the issue in the future.
The justices’ position echoed Attorney-General Avichai Mandelblit’s position from Monday night in which he came closer than ever to declaring Netanyahu unfit, but still avoided crossing that line.
Mandelblit made several points in his legal brief to the High Court of Justice which could start the building of a case to disqualify Netanyahu as unable to serve due to his specific behaviors even if the law does not formally require him to step down simply because he has been indicted.
The High Court noted each of these issues as problematic on Thursday, but as not reaching a sufficient threshold for the extraordinary measure of declaring a prime minister unfit.
The High Court was ruling on a petition by the Movement for the Quality of Government in Israel.
Some points that were highlighted, like the severity of the media bribery charges and the inherent conflict of interest in maintaining the public’s faith, were also made when a previous petition was filed before the calling of witnesses against Netanyahu had started.
However, some points were new.
The attorney-general said that the intensity of the prime minister’s attacks on law enforcement had crossed lines which could serve as a basis for declaring him unfit if such deterioration continued beyond a certain unidentified point.
He said that Netanyahu’s failure to appoint a justice minister was another sign that he might eventually be declared unfit, even if the law might not have required his resignation if he was maintaining normal government positions and business.
However, regarding the justice minister issue, the High Court said that another panel of justice was on top of the issue in a different petition.
However, Mandelblit ultimately said that Netanyahu could remain in office at the present time in light of his sticking to limits the attorney-general put on him to stay away from involvement in law enforcement and judicial appointments as well as policy changes which could impact his trial.
Further, the attorney-general said that Netanyahu had not yet perpetrated a clear disqualifying act showing him incapable of continuing his duties, even if he seemed to be getting closer to that point.
The High Court explicitly declared that the fact that Netanyahu has not had to attend much of his trial to date, only missing prime ministerial business on three occasions since May 2020 for a couple of hours at a time, protected him from charges that his physical time was too divided to attend to being prime minister.
This issue could be revisited once Netanyahu himself is testifying and being cross-examined, and possibly even once witnesses who specifically spoke to him about the alleged charges are testifying, but months or longer may pass before those points are reached.
On Sunday, the High Court had already rejected a separate petition to declare Netanyahu ineligible to form a government by virtue of the fact that the witness stage of his trial has started.
However, it appeared that rejecting this petition was easier for the High Court and Mandelblit since it paralleled a petition which the justices rejected 11-0 in May 2020.
In contrast, Monday’s petition appeared to be a closer call.
This was because Netanyahu’s ongoing and evolving individual behavior itself is at issue in terms of his fitness to serve, not merely the interpretation of the basic law regarding when any prime minister can be forced to resign as a matter of law.