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The High Court of Justice is slated to begin on Sunday listening to petitions calling for Prime Minister Benjamin Netanyahu to be disqualified from forming a new government in light of the criminal charges against him.
In a rare move, an expanded panel comprising 11 of the 15 court judges will hear the arguments, and the session will be broadcast live, due to the importance of the session.
Other petitions challenge the coalition agreement between Kahol Lavan and Likud. The President of the Supreme Court, Esther Hayut, assigned two days for the hearings, one day for each topic.
Attorney General Avichai Mendelblit submitted his response to the requests on Thursday, saying that despite the inherent difficulties, there is no legal impediment to assigning Netanyahu the mandate to form a government. Mendelblit stated that the Basic Government Law stipulates that a prime minister’s term may be terminated only after the final disposition of the case, including all appeals. Furthermore, he wrote, an earlier ruling that calls for an accused cabinet member to resign) does not apply to a prime minister due to the more important role of a prime minister.
Mandelblit’s position irritated the judicial community, evoking the dispute between two approaches: one side argues that the High Court should disqualify Netanyahu, the other believes that it should not. Professor Menachem Mautner, a leading expert on Israel’s constitutional law and author of a book on liberalism in Israel, believes that the position of the attorney general is correct. “I do not subscribe to anything that Netanyahu has done as prime minister and I believe that he has harmed this country, but the interpretation of Clause 18 of the Basic Law on Government is that he cannot be prohibited from starting his mandate” . There is no other possible interpretation ”, determines Mautner.
“The battle against corruption is very important, but it cannot be done at the expense of the battle for human rights and the rights of the accused,” says Mautner. “We have to educate ourselves as a society so that a person cannot be penalized before being sentenced by a court. The presumption of innocence is one of the most important principles of criminal law. Professor Yoav Dotan has shown that there is no country in the western world where a prime minister can be removed just because a public servant in the state attorney’s office has decided to prosecute him. ”
Mautner goes beyond the attorney general and says the court cannot even debate the issue, let alone ban Netanyahu from forming a government. “The question of what can be presented in court has changed since the 1980s,” says Mautner. “The court can refrain from addressing the issue as long as human rights are not violated. If this is the case now, it can decide that this issue is within the reach of the court. If the court disqualifies Netanyahu, what will be the reaction? The masses will take to the streets and support those who call for the dismantling of the court. This could be done by appointing twice as many new judges, as was done during the New Deal in the United States, or by having the judges withdraw to the courts. 60, as was done in Poland. The reaction could seriously hamper the court’s ability to protect human rights. The court is the main agent for instilling liberal values in Israeli culture and this could be damaged. The court must be realistic. ”
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“Politics is done on the ground, with people, not in the Supreme Court. Liberals are moving politics into the High Court arena, but the prime minister should be removed politically, not by the court. The second election was held after the prosecution was filed. People knew it and still chose it. This is an important consideration that every liberal democratic system must take into account. That is democracy. ”
Professor Barak Medina, also an expert in constitutional law, believes that the court should disqualify Netanyahu, saying that what applies to cabinet members requires it, or else they cannot be prohibited from serving when they are charged. Otherwise, the Basic Law, which established minimum standards, is inconsistent, Medina argues. “The case is stronger when applied to the formation of a government, rather than termination of service,” he says. He disagrees with the differences between cabinet members and a prime minister, as Mendelblit noted. “[Interior Minister Arye] Dery also led a supporting public in 1993, but the court withdrew it, “he notes.” The question is what weight the court gives to non-legal considerations, such as a fourth choice if Netanyahu is disqualified or the damage caused to the court state. or the coronavirus crisis. ”
Medina also disagrees with Mautner and the attorney general regarding the arguments that the will of the voters who backed Netanyahu should be respected despite the accusation. He says mayors, who are directly elected, are also removed from office when necessary. “If Netanyahu is not excluded, the clause on cabinet members or mayors is also nullified,” Medina argues.
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