We must not link the two proceedings. Trials are supposed to be conducted in a professional manner; the defendant’s identity should not sway the legal process toward leniency or severity. Equality under the law should be the court’s sole path. Similarly, the decision of who will be charged with forming the next government should disregard the fact that the person claiming the mandate on behalf of Israel’s largest political party is currently a criminal defendant. Thus states the law.
And yet the two proceedings are, in fact, deeply connected. Both are taking place in an atmosphere of ever-worsening erosion of the rule of law and respect for the rules of governance and statesmanship. Both the ruling party and those who oppose it are responsible for this state of affairs.
On the one hand, it’s hard to accept that a prime minister’s trial is being conducted in the absence of a justice minister – who is meant to mediate between the Justice Ministry’s professionals and the political system. Also absent from the Justice Ministry are a permanent state attorney, who is meant to lead the prosecution, and a permanent director-general, responsible for the ministry’s functioning. Are these absences coincidental? It is hard to accept the fact that the prime minister committed to signing a conflict-of-interest agreement regarding his trial but has yet to do so.
On the other hand, it’s also hard to accept that those leading the opposition to the prime minister are trying to block him from receiving the mandate to form a government by amending the Basic Law. Plans are reportedly in the works to promote legislation that would preclude a criminal defendant from forming a government. In order to avoid the tarnish of being applied “retroactively,” the law would apply only to the next Knesset, after a potential fifth election. We are asked to believe that it is not “personal,” but anyone with eyes in their head can see that this is a law tailored specifically for Prime Minister Benjamin Netanyahu.
The prime minister’s use of executive power to weaken the systems responsible for the rule of law is a strategic blow to the State of Israel. The use of the Knesset’s legislative power to reshape the Basic Laws – components of the Israeli constitution – in accordance with changing needs is also a strategic blow to the state.
Those seeking to amend the Basic Law to end Netanyahu’s premiership and the ongoing political crisis know that the High Court of Justice will have to rule as to the legality of that change. They are presenting the High Court with the thorniest of dilemmas: if the court authorizes the Basic Law, it will be supporting an illegitimate measure whose purpose is to change the rules of the game, mid-game, so as to thwart the will of the people. In contrast, if it nullifies the Basic Law, it will be setting a dramatic precedent that would spark public outrage (no Basic Law has ever been nullified, and there is disagreement regarding the court’s authority to do so).
Here, reality is stranger than fiction: the political camp that exalts “governance” and views the staff of the Justice Ministry as mere bureaucrats is impeding the political appointment of a justice minister. Not only that, but the political camp that attacks the High Court for being overly activist will be petitioning the same court to make its most activist move ever: nullifying a Basic Law to keep a prime minister in power.
There’s no question that the rules of the game need to be changed – but this should happen only after the current game has ended and a government is sworn in. When that happens, three changes should be made. First, the system should be modified so that the head of the party list that wins the most votes automatically receives the mandate to form a government. Second, the premiership should be limited to an eight-year term. And third, a moderate version of the “French law” should be enacted, whereby under certain conditions, a sitting prime minister cannot be indicted on criminal charges until after his or her term of office has ended.
These changes would ease Israel’s current tensions between its political and judicial systems. They would redraw the political map based on blocs, thereby ensuring stability and forestalling extortion. And they would make it possible for the term “honor,” in its true sense, to apply once more to state institutions.
The writer is president of the Jewish People Policy Institute and a professor of law at Bar-Ilan University.