Legal scholars debate whether Netanyahu can run for prime minister

December 1, 2019 by Dov Lipman - JNS
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With little political movement and less than two weeks remaining for the Knesset to decide on a prime minister, Israel appears poised to head for an unprecedented third election within one year.

Israeli Prime Minister Benjamin Netanyahu during a meeting of the right-wing parties bloc at the Knesset on Nov. 20, 2019. Photo by Hadas Parush/Flash90.

The biggest question hanging over it is whether Benjamin Netanyahu can even run for the position of the prime minister, given the fact that he faces three indictments. Israeli law allows for someone to continue serving even while under indictment, and says that a prime minister must only step down if found guilty by a judge after a trial. Still, it’s unclear whether or not someone can run for prime minister while under indictment.

Earlier this week, Attorney General Avichai Mandelblit ruled that Netanyahu can remain as interim prime minister, but Mandelblit did not weigh in on the question of whether or not he can be chosen to form a government and become prime minister once a new election is declared.

Professor Yedidia Stern, vice president of the left-leaning Israel Democracy Institute, told JNS that “it is better for decisions regarding who the country’s leader will be to remain in the hands of the citizens and not the legal system.”

Therefore, he continued, if Netanyahu wins the next election, “I believe the president should not be held back from giving [him] the mandate to form the next government, even while under indictment.”

Stern said “the law does not address the specific question of someone running for prime minister while under indictment. Given that reality, it would be far-reaching judicial activism to establish that the president cannot give the mandate to form a government to someone who the citizens of the country vote for, assuming that they vote in high numbers of Netanyahu.”

Regardless, whether Mandelblit decides to allow Netanyahu to run or not, the decision will be challenged by the disagreeing side, and the question will likely end up before the Supreme Court.

“The people have not elected Netanyahu to office at this time, and he has failed to form a government twice.”

Former Supreme Court Justice and Attorney General Elyakim Rubinstein, who was involved in writing that law, told Army Radio this past week that the intent was to prevent a prime minister who was elected by the people from being removed from office by the prosecutor.

The removal of a prime minister from office leads the country into new elections, and a prosecutor should not have the power to make that happen, he noted.

“But the law shouldn’t apply to a prime minister who is only in office by default and the country is heading to an election anyway,” argued Rubinstein. “The people have not elected Netanyahu to office at this time, and he has failed to form a government twice. He should not be allowed to continue as prime minister and certainly should not be allowed to run for the office in a new election while he is under indictment.”

There is one important technicality which must be noted as part of this debate. The prime minister has not been officially indicted— nor can he be until after a new government is formed, which will be after the election if no government is formed in the next two weeks.

In usual circumstances, when a member of Knesset is charged with criminal activity, the Knesset member can ask the Knesset House Committee for immunity. The indictment becomes frozen and cannot be officially submitted to the court until the Knesset decides whether to give that Knesset member immunity or not. If the House Committee grants the immunity, then the full Knesset votes on it.

Since there is no new government and there is no new House Committee in the Knesset, the prime minister has no vehicle to ask for immunity and that freezes the entire process. If the country goes to a third election, there won’t be a new government until at least April 2020 at the earliest.

As a result, Netanyahu has not and cannot be officially indicted at this time.

The earliest his indictment can even be submitted to the court will be more than five months from now, after the president has been tasked with giving a Knesset member (possibly even Netanyahu) the mandate to form a new government. This strengthens the likelihood that he will be permitted to grant this right to Netanyahu if he wins the election since the prime minister won’t have been officially indicted at that time.

Several Likud Knesset members told JNS they cannot believe that the attorney general would involve himself in an election by ruling that Netanyahu cannot become prime minister of a new government.

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