On Sunday, the High Court of Justice will convene an expanded panel of justices led by the court’s President Esther Hayut to hear a petition against allowing Benjamin Netanyahu, the interim prime minister who has been indicted on charges of bribery, fraud and breach of trust, to form a coalition.
On the surface, the ruling should be clear cut. In the Deri-Pinchasi cases from 1993, the High Court ruled that ministers indicted, charged with a crime and awaiting trial cannot carry on serving as ministers. They must be fired by the prime minister or forced to step down. When it comes to a sitting prime minister, the Basic Law: Government has already decided that the judicial precedent which applies to ministers does not apply to a prime minister. On the contrary, a sitting prime minister can remain in office all the way until a final verdict – on appeal - is handed down in his or her case.
The problem for Netanyahu is that he is not a sitting prime minister. He is an interim prime minister. The reason the law allows a prime minister to remain in office until the end of the trial is because the resignation of a prime minister leads to the collapse of the entire government and effectively means new elections. A minister leaving a ministry does not.
But now, there is anyhow no government and there is no concern that a government would fall. On the other hand, in certain constellations, from a political perspective, banning Netanyahu from being able to form a coalition might actually help the political system break out of the paralysis it had been stuck in for the last 17 months (up until the signing of the deal between the Likud and Blue and White two weeks ago).
It is difficult to know what the court will ultimately decide this week. On the one hand, the standard that applies to a minister should apply to a presumptive prime minister. In addition, there is currently no government that will fall if Netanyahu is not allowed to form a coalition.
On the other hand, the court knows that if it rules that Netanyahu cannot form a coalition, he is unlikely to accept the ruling. This would lead to an unprecedented constitutional crisis in Israel that would not only undermine the rule of law but could lead to a dangerous divide in the country, the outcome of which is unknown.
Whichever way it decides the court will find itself in a complicated position. If it allows Netanyahu to form a coalition, it will pretty much be giving alleged political corruption a stamp of approval. What kind of message does this send other politicians or regular folks in Israel who see that even when facing severe allegations, there are some people above the law.
On the other hand, doing so would further undermine the court’s standing in the eyes of a public that is already wary of what has appeared to be the court’s gross intervention into matters that many – particularly in the right-wing camp - have argued it should not. We have written in the past about the court’s overstepping of boundaries but that should not lead to a situation in which Justice Minister Amir Ohana will act on what he said upon entering his role last year – not obeying every court ruling.
Former Knesset speaker Yuli Edelstein’s decision recently to ignore a court ruling and not convene the Knesset plenum for a vote on his replacement showed that in the country’s interim ruling party there is no longer the respect that it used to have for the rule of law, the separation of powers and the need to protect Israeli democracy.
On Thursday, Netanyahu told Likud ministers and MKs that the High Court intervening and preventing him from forming a government would be "delusional, unimaginable and would lead to additional elections."
These are precarious times for Israel. Whether you support Netanyahu or not, Israel needs to retain its democratic institutions and ensure that the rule of law survives no matter who leads the country.