The Washington PostDemocracy Dies in Darkness

In marathon hearing, Israel’s top court debates Netanyahu’s fate, legalities of his coalition

Israeli protesters on Sunday watch a live broadcast of a Supreme Court hearing on whether Prime Minister Benjamin Netanyahu should be allowed to form a government. (Tsafrir Abayov/AP)

JERUSALEM — Israel's democratic process and the fate of Prime Minister Benjamin Netanyahu have come under legal scrutiny this week as the country's highest court weighs whether a person charged with serious crimes should be allowed to form a government and whether a deal between Netanyahu and his main rival to end a year-long political stalemate is legal.

The proceedings could have serious implications — not only for the long-serving Israeli leader but also for the judiciary and the political system in general — if the final verdict derails the government that Netanyahu is trying to form with onetime challenger Benny Gantz.

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Netanyahu’s supporters and members of his ruling Likud party have warned that a court decision rejecting any part of the coalition deal signed with Gantz’s Blue and White party as unconstitutional or illegal could trigger yet another general election, a fourth since April 2019.

Political pundits warn that if that happens, the judiciary’s role and its delicate relationship with the executive and legislative branches will face harsh criticism in a new election playing out in the shadow of the coronavirus pandemic.

Similar to the U.S. Supreme Court, which on Monday made oral arguments accessible to the public, Israel’s Supreme Court broadcast its marathon review live for the first time because of coronavirus restrictions.

During the hearings on Sunday and Monday, the 11-judge panel, each member wearing a face mask and shielded by plexiglass, heard arguments for and against allowing a lawmaker facing criminal charges to become prime minister. In November, Netanyahu was indicted in three graft cases, but his trial was postponed from March until May because of the coronavirus outbreak.

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On Thursday, Attorney General Avichai Mandelblit wrote in an opinion to the court that Netanyahu faces no legal impediment to being tasked with forming a government. The Basic Law on Government, the core of Israel’s constitution, is clear, Mandelblit wrote — a prime minister’s term can be terminated only after he is convicted and all appeals have been exhausted.

In the hearing Sunday, Netanyahu’s attorney argued that the court has overstepped its bounds in even discussing who is fit to form a government.

“I argue that this is a question that is not justiciable, that the law does not give the court the authority to interfere in this matter,” said Michael Rabello, according to the newspaper Haaretz. “How can it be said that this panel can replace the voters? That we lawyers can come and replace all the state’s leaders who tried to persuade the electorate three times and that’s what the voters said?

An attorney for Israel’s parliament, the Knesset, similarly argued that it should not be up to the judiciary to decide on the appointment of a prime minister and rather that it was the role of the 120 Knesset members elected by the public.

But Dafna Holz-Lechner, a lawyer presenting arguments on behalf of individuals, human rights groups and political parties that filed petitions against Netanyahu, pressured the court to issue a verdict. “An independent legal system is the last fortress of human liberty in our day,” she said, according to media reports. “If the fortress falls, there is no one to rescue the person who is ground between the millstones of arbitrary authority.”

Gadi Taub, a senior lecturer at the Federmann School of Public Policy at the Hebrew University of Jerusalem, said the authors of the law allowing a prime minister to remain in office had considered such intervention by the judiciary. He said the legislation was written to “prevent an attempt by the civil service to usurp the election.”

“The fact the court is even deliberating this is an amazing feat of audacity,” Taub said, adding: “If they nullify the results of the election, which is extreme, there will be a fourth election, and it will all be about the authority of the Supreme Court.”

On Monday, the court discussed key sections of the coalition agreement signed April 20 between Netanyahu and Gantz.

Gantz, who campaigned against Netanyahu remaining in office through three rounds of voting, said the coronavirus crisis forced him to join forces with Netanyahu, but the mistrust between the two is reflected in many parts of their agreement.

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Described by political commentators as a unique and personal arrangement, it directly contradicts some of the country’s political customs and basic laws. Among the problematic points, the court discussed the three-year rotation setup allowing Netanyahu and then Gantz to serve as prime minister for 18 months each and the creation of the position of deputy prime minister while the other fills the top job.

But Amir Fuchs of the Israel Democracy Institute said that during Monday’s hearing, the judges appeared to take particular issue with sections of the agreement dealing with top public appointments, the failure to include opposition lawmakers on certain parliamentary committees and the leaders’ decision not to push any legislation unrelated to the coronavirus during the first six months.

“On the big issue of whether Netanyahu can be prime minister, I don’t believe the court will intervene, but they might intervene on some issues that Likud could say are important and lead them to stop the agreement,” he said.

While there is no strict deadline for the court to reach a verdict on either matter, Fuchs speculated that it is likely to issue some form of declaration before Thursday, which is the deadline for Netanyahu and Gantz to formally present their new government.

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Today’s coverage from Post correspondents around the world

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