Netanyahu’s Fate Is Now in Hands of Israel’s Highest Court

(Bloomberg) -- Israel's highest court is pondering whether to bar indicted Prime Minister Benjamin Netanyahu from forming the next government, a decision that could have momentous consequences for the country's political stability and its public norms.

The High Court of Justice launched its second day of deliberations on the future of Netanyahu's political life. On Sunday, it heard petitions to disqualify the prime minister from forming the next governing coalition because of the serious charges he faces in three graft cases. And on Monday, it weighed petitions to strike down the power-sharing accord he reached with onetime rival Benny Gantz on the ground it proposes changes to the law that are unconstitutional.

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If the court decides Netanyahu is unfit to continue as Israel's leader, then the country will almost certainly head toward its fourth snap election in little over the year. It's also possible the justices will rule that such a decision is outside their purview and that banning an alleged criminal from leading the country should be left to the legislature if it so desires.

“For the court to intervene in the core business of the democratic process, they need clear-cut authority,” said Yedidia Stern, a senior fellow at the Israel Democracy Institute research center. “It can't be based on an interpretation that could be questionable.”

Time is of the essence. Netanyahu and Gantz have until midnight May 7 to finalize their coalition agreement or trigger a new round of balloting. Court-ordered revisions -- be it to the legal amendments the accord seeks or to who should stand at the country's helm -- could make that tight deadline ominous.

So far, the justices have asked for several modifications within the next 24 hours, including to a provision that would freeze senior appointments, like a permanent police commissioner, Israeli media reported. A Netanyahu ally, lawmaker Miki Zohar, objected to the demand, saying “the HCJ is showing us the way to fourth elections,” Channel 12 reported.

The judicial proceedings in Jerusalem were broadcast live, in an extraordinary move. Because of the coronavirus outbreak, all present in the courtroom wore face masks except when addressing the bench, and the judges were separated from each other by transparent partitions.

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Netanyahu, who claims he is the victim of a political witchhunt by leftists and journalists, maintains the court has no authority to subvert the will of the people who voted for his Likud party and Gantz's Blue and White. The first sitting Israeli leader to face trial, he's accused of illicitly accepting gifts and scheming to tilt legislation to benefit media moguls in exchange for favorable coverage.

His trial on bribery, fraud and breach of trust charges is due to start on May 24 after a two-month delay ordered by his handpicked justice minister, who cited the coronavirus outbreak.

Last week, Attorney General Avihai Mandelblit, who brought the charges against Netanyahu last year, told the court he didn't think judicial intervention was warranted, even as he acknowledged the “significant difficulties in having a person who is facing a serious indictment on ethics charges receive the post of prime minister.”

Chief Justice Esther Hayut sounded open to that interpretation on Sunday when an attorney for the petitioners claimed that the “fortress” of the rule of law would collapse if the court decided against them. “The decision to accept your petition or not will not topple any fortress,” Hayut said, calling the lawyer's claim “populism.”

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Israel has been in a state of political chaos ever since the prime minister, Israel's longest-serving leader, failed to piece together a government after the first of three rounds of balloting since April 2019. Two revotes were unable to break the stalemate. But with the coronavirus gutting the economy and battering an ailing health system, Gantz jettisoned his vow never to sit in government with the scandal-tainted prime minister and agreed in late March to form a joint administration.

Their alliance was meant to give Israel its first permanent government since December 2018, with Netanyahu serving the first 18 months, then Gantz serving a similar duration. The court will have to decide whether provisions of the accord conform with Israel's quasi-constitutional Basic Laws, including a proposed curtailment of parliament's powers and a shortening of the term of an elected government from four years to three.

The admissibility of Netanyahu's continued tenure was brought before the court because Israeli law doesn't specifically address whether a politician can form a government while facing trial, though it does require ministers of lesser rank to resign under those circumstances.

“Can a man who is the ultimate leader, who has to be a model of ‘Do as I do,' be the guiding star when other people who have criminal charges against them can't even serve as security guards in a preschool?” asked Eliad Shraga, the head of the Movement for Quality Government in Israel, one of the petitioners.