High Court hears if Netanyahu can be forced to resign as alternate PM

Justices to rule if rotation deal is constitutional

High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020 (photo credit: COURTESY HIGH COURT OF JUSTICE)
High Court of Justice prepares for hearing on whether Prime Minister Benjamin Netanyahu can form the next government, May 3, 2020
The High Court of Justice on Tuesday heard arguments whether Prime Minister Benjamin Netanyahu, who is on trial on several corruption counts, could be forced to resign when he swaps roles with Blue and White’s Benny Gantz in November 2021 and takes up the position of alternate prime minister.
The issue is one of several mentioned in petitions filed by various parties who question whether the role of alternate prime minister, the authority it holds, and aspects of the coalition agreement between Likud and Blue and White, are constitutional.
Already in May, the High Court allowed Netanyahu to form his coalition and said the main principles of the government deal were constitutional, but it delayed ruling on Netanyahu’s possible fate once the rotation is enacted and he becomes alternate prime minister, and on aspects of the position’s authority.
Petitioners, including the Movement for the Quality of Government in Israel, Meretz, and the Guardians of Israeli Democracy all argued that Netanyahu must resign when he no longer has the unique protections of the office of prime minister.
They have said that creating immunity for the alternate prime minister position 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.
Attorney-General Avichai Mandelblit, who indicted Netanyahu, recently told the High Court that he views the alternate prime minister role as constitutional.
He said that the Knesset used its sovereign authority to pass Basic Laws to change aspects of the government’s powers, including creating the alternate prime minister position, and that the legislature has the authority to create a new position beyond previous High Court precedents based on past laws.
More directly, he argued that Netanyahu cannot fire Gantz and that according to past High Court precedent that only the prime minister can continue serving if he has been indicted, the situation was based on the idea that the prime minister would fire indicted ministers.
As Netanyahu cannot fire Gantz, this means that prior High Court precedent forcing resignations upon indictment could not apply to the Alternate Prime Minister position either.
Although the hearing had direct implications for Netanyahu, most of the hearing focused on the more philosophical question of whether the High Court even had jurisdiction over the issue, since it was set down by new basic laws passed by an absolute majority of the Knesset.
From the outset, High Court President Esther Hayut pressed the petitioners hard, saying that they would need to convince her, Vice President Hanan Melcer and Justice Neal Hendel that they could intervene, despite the fact that the court has never previously struck down a basic law.
The Movement’s lawyer, Eliad Shraga, argued that the High Court has always had a meta or comprehensive responsibility to protect Israeli democracy.
Further, he said, that the Dignity and Freedom of Man basic law had empowered the court to strike down a wide variety of laws in order to maintain Israeli citizens’ basic freedoms.
Shraga labeled the Likud-Blue and White changes to the basic laws “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.
The justices indicated, however, that they did not view the current rotation deal as markedly different to the past rotation unity government of the 1980s.
Next, Shraga said that the current basic law changes were different and more problematic because they were rushed and weren't based on careful, long-term consideration of the implications for Israel’s democratic system.
Melcer responded that the state had previously altered its election method for prime minister to a direct election, only to later rush to eliminate that change when it was deemed unsuccessful.
When Shraga questioned the political motivations behind the change to the basic laws, Hayut responded that past court precedent has held that motivations are irrelevant and what mattered was the result.
Regarding the result, Hayut said that the rotation government, with all its imperfections, had ended an 18-month stalemate after with three elections.
Although most of the fire was directed at the petitioners, Hayut at one point demanded of Likud lawyer Michael Ravilo whether the Knesset's legislation powers were unlimited.
She asked him if the court could intervene if the Knesset passed a law canceling elections, or scheduling them only once every 10 years.
Taken aback, Ravilo acknowledged that such a law would not be acceptable, but he nevertheless found it difficult to see why the High Court should intervene. Instead, he suggested simply that the public would not tolerate such a law.
It is unclear when the court will rule, although previously, the justices have tried to avoid making a decision that could impact coalition politics if delaying it could prevent doing so.
Aired live, the hearing was the fourth time this year that the High Court has permitted broadcasting a constitutional hearing.