How did the coalition deal impact the rule of law? - analysis

From Netanyahu's trial to the prime ministerial rotation, there are plenty of legal questions following the coalition deal.

Prime Minister Benjamin Netanyahu and Blue and White leader Benny Gantz sign a unity government agreement (photo credit: Courtesy)
Prime Minister Benjamin Netanyahu and Blue and White leader Benny Gantz sign a unity government agreement
(photo credit: Courtesy)
Critics on the Left of the coalition deal have said that Blue and White Benny Gantz abandoned the rule of law.
Was that the result of the deal? The answer is: it depends.
Gantz negotiated for Blue and White’s Avi Nissenkorn to become justice minister.
Based on that move, Prime Minister Benjamin Netanyahu’s trial is not expected to be delayed further past May 24 due to the corona crisis – a question mark had Amir Ohana remained in the job.
Next comes the questions of whether Gantz undermined the High Court of Justice’s ability to force Netanyahu out of office on the basis of his being indicted or undermined the courts’ prosecution of public corruption more generally.
Here the issue is on more of a spectrum.
Gantz rejected Netanyahu’s proposals to pass into law a clause to block the High Court from forcing him out.
However, he agreed that if the High Court forces Netanyahu to resign, there will be new elections.
While critics of Netanyahu wanted him out of office over a year ago, the fact is that there was no coalition that could accomplish this and if Netanyahu was fired by the High Court, the pre-deal law would likely have sent the country to elections, with him potentially remaining as transitional prime minister.
So Gantz neither elevated nor detracted from the rule of law as it stood.
Moreover, this question is academic.
The High Court has already rejected several petitions to force Netanyahu out at more opportune times over the last seven months since he was indicted on November 21, 2019 and there is no reason to expect the result will change now.
The more interesting question is whether the High Court might force Netanyahu out of being vice premier in October 2021, as expected under the deal.
It is one thing for the High Court to cite the current Basic Law as giving the prime minister an exemption from having to resign when indicted, the way regular ministers must under 25 years of High Court precedent.
The High Court might very well think harder about forcing out a vice premier so as not to broaden this exception.
This question will likely be delayed until October 2021 and the justices will likely encourage the Jerusalem District Court to reach a verdict before then so that the issue never reaches them.
17 months in plenty of time to reach a verdict, though if the court takes its time, the case could also drag on for two to three years, like Ehud Olmert’s Holyland case.
But Olmert was already out of office and there was no real clock on the case.
This concrete issue may very well motivate the court to move the case forward faster.
So once again, the Gantz deal may have no impact.
Another issue will be appointing the next attorney-general.
Avichai Mandelblit’s term runs out in February 2022.
Theoretically, Netanyahu’s trial might or might not be resolved before then, but even if it was only mostly over, a new attorney-general would not impact the case much, if at all.
Moreover, while critics note that the Likud will have a say in who replaces Mandelblit, Nissenkorn will be the lead player in that game, and according to the deal, Gantz will be prime minister by the time the appointment comes up.
Further, the deal makes Gantz transitional prime minister if the coalition breaks up early, so even if the deal fell apart around the time of the proposed transfer of power from Netanyahu to Gantz, the Blue and White leader would still be premier at the time that Mandelblit’s term would expire.
Being that Blue and White could not oust Netanyahu with a coalition of its own, the question was never whether Netanyahu would have an impact on picking Mandelblit’s successor, it was whether he would control it or have to share control with Blue and White.
Now he will need to share control, and with Nisseknkorn as justice minister, Blue and White has a slight upper-hand in terms of the process.
The same shared control will be true for appointing new High Court justices, including eventually a new chief justice.
So while critics on the Left can certainly slam Gantz for the idea of joining a government with Netanyahu at all as legitimizing him, there is no concrete way that Gantz has made the rule of law worse off than it would have been had the country gone to a fourth election – which Netanyahu was projected to win.


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