Israel’s Supreme Court has finished two days of hearings concerning the recent unity agreement between Israeli Prime Minister Benjamin Netanyahu and Blue and White leader Benny Gantz.

The hearings were launched after several groups, which include opposition political parties and non-governmental organizations such as the Movement for Quality in Government, sought to prohibit Netanyahu from forming a new government while under indictment for bribery, fraud and breach of trust charges, and to negate the coalition agreement that they contend violates Israeli law.

Professor Yedidia Stern, senior fellow at the Israeli Democracy Institute, told JNS that the court should not have even allowed a hearing about this issue to begin with since “there is no legal basis to negate the democratic process and the will the people expressed in the ballot box.”

In its first day of hearings on Sunday, the court considered arguments over whether or not Netanyahu could form a government while under indictment. Even though Israeli law permits a sitting prime minister to remain in office under such circumstances, the petitioners argued that the law does not allow someone to become prime minister while facing charges.

“The law specifically allows a prime minister to serve or to form a government while under indictment, and there is no place for the court to interfere,” former justice minister and current Yamina Knesset member Ayelet Shaked told JNS.

Shaked, whose party may be headed into opposition, added that “the petitioners have political issues with Netanyahu and the court cannot get involved in what is clearly a political issue. The will of the people must stand, and Netanyahu must be allowed to be prime minister despite the indictment, as explicitly allowed by law.”

High Court Chief Justice Esther Hayut assigned the maximum 11 justices to hear and rule on this case given its significance. From the questions and comments of the hearings thus far, it appears that court may be leaning towards not interfering in the Knesset’s affairs.

“Show us something! A law! A verdict! From this country’s [history]! From [somewhere else] in the world! Something!” said Hayut, referring to the petitioners demands that a lawmaker commanding the majority of the legislature be prevented from forming a government. “After all, [you’re asking us to set] a global precedent! You want us to rule without a basis simply according to your personal opinion?”

Issues with coalition agreement

The second day of the hearing addressed the specifics of the coalition agreement between Netanyahu and Gantz.

Among issues the petitioners have with the coalition agreement are changes in Israel’s Basic Law to accommodate the unity government. The first concerns the rotation agreement between Netanyahu and Gantz. If Netanyahu were to collapse the government before Gantz takes over, then Gantz would become prime minister for six months. Currently, if a government is collapsed, elections would need to be held three months later.

The second concern is over the creation of the newly created “vice prime minister” position.

The vice prime minister will be given the standing of a prime minister, including the ability to serve while under indictment. This change will allow Gantz to serve as vice prime minister while Netanyahu is prime minister, and vice versa.

Furthermore, the petitioners also expressed concern over the coalition agreements clauses that stipulate that in the first six months, the emergency government is to focus on the coronavirus crisis and that during these six months, the government will not pass legislation unrelated to the virus (with the exception of Israeli sovereignty in the West Bank), and that during these six months the government won’t fill vacant positions such as police chief and state prosecutor.

Finally, concerns were also raised issues with the lack of “basic foundations” of the coalition agreement and the fact that the agreement also does not allow the opposition to lead any Knesset committees or to sit on the committee to appoint judges, both of which are contrary to traditional Knesset practice.

‘The court is not an insurance certificate’

In its proceedings, the court appeared to delay any rulings on the coalition agreement, which will be legislated once the new government convenes.

“The court does not hand down pre-rulings, even if the parties want it [to do so]. The court is not an insurance certificate,” said Justice Menachem Mazuz.

Stern told JNS that even once the laws are passed, the court won’t intervene since they are being passed as Basic Laws, and the Supreme Court has a practice not to get involved with Basic Laws passed by the Knesset. “This is a way for the new coalition to prevent the court from negating the laws and paves the way for the unity government to form with the rotation in place,” he explained.

Lawyers for Netanyahu and Gantz explained that the regular Knesset practice regarding the opposition and committees doesn’t apply when it’s a wide-ranging unity government, and since there is no law requiring that the opposition lead committees or be on the committee to appoint judges, the justices are unlikely to interfere with this point.

The judges made it clear that they do not rule regarding political agreements. They rule on laws, and since the laws in the coalition agreement have not yet been voted into law, they will not issue rulings about them.

Attorneys for Netanyahu and Gantz indicated that they will make changes to the coalition agreement within 24 hours to include the “basic foundations” and to allow for legislation in non-corona areas, as well as for appointments to vacant positions during the first six months.

The coalition under formation and the opposition came to agreements on Monday regarding the schedule for passing the laws necessary to create the unity government. The debate and votes will take place no later than Thursday morning, just in advance of the Thursday midnight deadline for Netanyahu to present to Israeli President Reuven Rivlin that he has 61 Knesset members supporting him for prime minister.

The new government, with Netanyahu as prime minister and Gantz as vice prime minister, will most likely be sworn in next week.

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