May 6, 2020

Israeli High Court Lets Netanyahu Form Government, Despite Indictments


JERUSALEM — Israel’s Supreme Court refused to bar Prime Minister Benjamin Netanyahu from forming a government, unanimously ruling late Wednesday that it had no legal grounds to do so and rejecting petitions that sought to disqualify him because he faces prosecution on felony corruption charges.

In its decision, issued after 11 p.m. on the eve of a key deadline for the formation of a government, the high court also declined to block an unusual power-sharing arrangement that Mr. Netanyahu struck with Benny Gantz, the former army chief who had fought him to a draw in three straight elections. The rivals ultimately joined forces, citing the emergency posed by the coronavirus pandemic and the desire to avoid a fourth campaign.

The court’s demurral cleared the last major obstacle to Mr. Netanyahu’s claiming a record fifth straight term as Israel’s leader, cementing his reputation as a political wizard and indomitable survivor: Even after his opponents won a majority in the most recent election, even with a criminal trial weeks away, it was Mr. Netanyahu who was left on top and in charge.

Mr. Netanyahu, 70, whose trial on bribery, fraud and breach of trust charges is set to begin on May 24, immediately announced he would be sworn in for a fifth straight term on May 13. Mr. Gantz, 60, is to take office as deputy or alternate prime minister.

The two agreed to swap roles after 18 months, though that timing, the agreement’s duration and other issues were still being debated in a marathon legislative session that continued into Thursday morning.

Their agreement calls for a narrow focus on issues related to the coronavirus at first, with one exception: Their government may take up the annexation of land in the occupied West Bank, a long-sought goal of the Israeli right, as early as July.

The court, in a ruling written by Chief Justice Esther Hayut, left itself room to reject elements of their deal at a later date.

Although the two leaders’ coalition agreement “raises significant legal difficulties, at this time there is no room for intervention in any of its clauses,” the court said, noting that their political parties — Mr. Netanyahu’s Likud, and Mr. Gantz’s Blue and White — had provided clarifications to a number of clauses the court found problematic.

Analysts had predicted Wednesday night’s decision, saying that the Supreme Court would be reluctant to interfere in the electoral process.

It would have been a reach, analysts said, for the court to disqualify Mr. Netanyahu after he had won a new term, when the voters had been amply aware of the charges against him, and when the legal grounds for barring him were far from solid.

Such a decision could have also emboldened conservative lawmakers who want to hem in the court’s powers. Since Israel has no Constitution, little stands in the way of attacks on the court except its own legitimacy in the eyes of the public.

As widely expected, the court chose instead to come down squarely on the side of majority rule.

“This issue is at the heart of our democratic process,” Justice Hayut wrote, referring to the process by which Israel’s president entrusts a lawmaker with the mandate to form a government. “External intervention in this procedure would be a significant violation of the principle of the majority making a decision, which stands at the foundation of our system.”

The court heard lengthy arguments over Mr. Netanyahu’s eligibility for a new term and the appropriateness of the coalition agreement in hearings on Sunday and Monday. Abiding by social distancing measures to combat the coronavirus pandemic, the 11 justices held court wearing surgical masks and separated from one another by plexiglass barriers.

The petitioners, including good-government groups and former heads of the Shin Bet, Israel’s internal security agency, had contended that a law that forces sitting government ministers to resign if they are indicted should also be applied to the prime minister.

But the court found that since no law explicitly barred an indicted lawmaker from becoming prime minister, and since another statute allowed a prime minister facing criminal charges to remain in office until he is convicted and has exhausted his appeals, there were no legal grounds to stop him.

“It is very saddening that Israel is going to receive a prime minister indicted on a charge of corruption,” said Tomer Naor, chief legal officer of the Movement for Quality Government in Israel.

In the hearings earlier in the week, Michael Rabello, a lawyer representing Mr. Netanyahu’s Likud party, argued that the court lacked the authority to reverse the outcome of Israel’s political process.

“How is it possible to say that this panel can replace the voters?” Mr. Rabello argued.

Mr. Netanyahu is accused of accepting gifts and obsequiously positive press from Israeli media moguls in exchange for official actions that proved highly lucrative for the businessmen.

In its decision Wednesday, the court hastened to make clear that it was “not meant to underestimate the gravity of the charges” against Mr. Netanyahu “and the difficulty derived from a prime minister serving while indicted with criminal offenses.”

But it said that the law and the presumption of innocence tipped the scales in his favor.

Tamar Zandberg, a former leader of the left-wing Meretz party, looked past the court’s decision, instead blasting Mr. Netanyahu and Mr. Gantz, whose anti-Netanyahu candidacy she had supported.

“Even if it is legal for a corruption defendant to form a government, this doesn’t make it smell any better,” she said. “Public representatives need to make moral decisions as well, and Netanyahu should have resigned a long time ago rather than drag the whole country into this madness.”

She added, alluding to Mr. Gantz: “Anyone who lends him a helping hand is a partner to the corruption.”


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