A ruling not just on Netanyahu, but on the court’s role in democracy

There’s something ironic about a law passed to defend democracy now being attacked by people who argue they’re the ones defending democracy.

Israeli Supreme Court President Esther Hayut and Supreme court Justices arrive to a court session on petitions filed against the proposed government at the Supreme Court in Jerusalem on May 3, 2020 (photo credit: YOSSI ZAMIR)
Israeli Supreme Court President Esther Hayut and Supreme court Justices arrive to a court session on petitions filed against the proposed government at the Supreme Court in Jerusalem on May 3, 2020
(photo credit: YOSSI ZAMIR)
Can someone charged with crimes form a government? That is the question the High Court of Justice has determined to answer, as it began hearings on the matter on Sunday. But the decision it makes will mean more than whether Prime Minister Benjamin Netanyahu can remain in office. It will tell us about the role of the judiciary in our government.
Basic Law: Government is pretty clear on what happens to a prime minister when he’s indicted – nothing, unlike other cabinet ministers.
If the prime minister is convicted of a crime and it carries moral turpitude, a majority of the Knesset can force him out, but he has a chance to defend himself. If the Knesset doesn’t force him out and the prime minister is convicted after an appeal to the Supreme Court, then he is automatically removed from office and the entire government is seen as having resigned, meaning there is an election.
Prime Minister Benjamin Netanyahu is under indictment on multiple corruption charges, but his trial has not begun. He has not been convicted of anything, we do not know if he will be, and he has the right to the presumption of innocence like anyone else.
The petitioners against Netanyahu had a lot to say about the moral and ethical implications of allowing someone under indictment to form the new government, but as Supreme Court President Esther Hayut said in court on Sunday, that’s beside the point. The court is holding a legal hearing, and they need to argue about the law.
So why was there anything for the court to discuss?
Netanyahu is prime minister. But he’s also forming a new government, and the law does not say whether someone under indictment can do that. So that could be viewed as a lacuna in the law.
At the same time, there is the basic legal principle, which comes from English common law, that "everything which is not forbidden is allowed.” Arguably, if the law does not say that someone who is under indictment is forbidden from forming a government, then it is allowed.
One of the other arguments against Netanyahu is that he is interim prime minister or sitting prime minister, not head of an elected government, and that confers a different status upon him than if he were fully prime minister. Unlike a regular prime minister, if an interim prime minister were removed from office for being indicted, it would not necessitate a new election, so the logic behind allowing a premier charged with a crime to remain in office no longer exists, the argument goes.
The problem with this line of reasoning is that, while there is some sense in referring to Netanyahu as an interim prime minister in articles or in conversation, the concept does not exist in Israeli law. It is not mentioned once. In addition, the law does not limit an interim government’s authority, though courts have said such a government must show "restraint in extending its authority towards all matters that are not necessary or especially urgent during an interim period." Attorney-generals have interpreted the 2005 ruling in different ways in the subsequent years.
The closest thing to mentioning an interim prime minister in Basic Law: Government is an article stating that the same rules apply to a “temporary prime minister” who is incapacitated as a regular one, and, the more relevant point, when it comes to charging a prime minister with a crime, the attorney-general’s “instructions on the matter of an indictment before the prime minister began serving in his position will be determined in the law.”
This was never actually determined in another law, but one can reasonably infer from that sentence that the legislators who wrote it saw a significance to the fact that someone had enough support from voters and parties in the Knesset to be the likely prime minister and thought there should be a law about it.
We know the intentions of the MKs that legislated the Deri-Pinhasi Rule, passed after Interior Minister Arye Deri was convicted of bribery, which requires indicted ministers to resign but exempts prime ministers.
Knesset Constitution Committee protocols from 2001 show President Reuven Rivlin, then a MK, expressed concern that the executive may overextend its authority and overturn the voters’ decision.
“The Knesset is the sovereign, and we cannot be deterred from that... because otherwise we will have an ombudsman who, with their intellectual ability, will decide what is allowed and what is forbidden,” Rivlin said.
Tommy Lapid, father of Yesh Atid leader Yair Lapid, later justice minister, said behind the bill encapsulates “the big debate... on the balance between the parliament and the court.”
“A prime minister can be persecuted,” Rivlin responded. “If you come and say that individuals who were not elected, who did not stand the voters’ test, that the nation did not want can come and say ‘not this man,’ and after that his innocence will be proven or not, and in the meantime a terrible thing happened to a person being elected in a democracy.”
When Tommy Lapid was justice minister, he argued against a Labor proposal to reverse the exemption for prime ministers.
“What are you suggesting, that a bureaucrat can fire a prime minister?” the elder Lapid asked then-Labor MK Ofir Pines-Paz. “You cannot want that. I’m sure that if Shimon Peres knew what you were suggesting he would tell you to back down. You don’t want to give the attorney-general the only and total authority to fire a prime minister and dismantle a government… Is democracy not dear to you?”
There’s something ironic about a law passed to defend democracy now being attacked by people who argue they’re the ones defending democracy.
Both Netanyahu’s lawyers, the Attorney-General’s Office and the Knesset’s attorneys argued on Sunday along the lines of the 2001 protocols, that the will of the voters is what matters here, and that a group of unelected officials – in this case the judges – do not have authority to decide here.
Now, the Supreme Court can look at the letter of the law or the lawmakers’ intentions, and they’ll have one answer, or it can decide to serve as a sort-of legislator and fill in the lacunae in the law, when it comes to what a prime ministerial candidate under indictment can do.
This wouldn’t be unheard of in Israel, where since the mid-1980s the courts have ruled based not only on the letter of the law, but on whether actions meet a subjective, non-codified standard of “reasonability” determined by the judges. This is something to which opponents of judicial activism generally object.
Some may say this case is just about Netanyahu, but it is those ideological opponents of judicial activism, who include much of the political Right, who are watching this carefully. Even when Netanyahu no longer holds office, they’re likely to continue in this vein, since these are views now-senior Likudniks held long before the prime minister was under investigation. And they’re likely to push judicial reform even harder if Netanyahu is forcibly removed from office. Hayut called this a threat when Netanyahu’s lawyers referred to it, but it’s a realistic political analysis, though not a legal argument.
Still, it’s worth paying attention to. At a time when the role of the Supreme Court is hotly debated, this ruling has the potential to spark a constitutional crisis with questions about separation of powers in Israel’s democracy, and a crisis of trust in the court by many Israelis who may feel their votes are invalidated.