(Apr. 20, 2020) On April 12, 2020, the Supreme Court of Israel, sitting as a High Court of Justice, unanimously rejected a petition that the Court determine whether a member of Knesset (Israel’s parliament) who had been indicted for an offense of moral turpitude is eligible to serve as prime minister (PM), and whether the president of the state might assign such a Knesset member the task of forming a government following the general elections for the Knesset. The decision was rendered by Justice Alex Stein, with Justices Yael Willner and Isaac Amit concurring. (HCJ 2487/20 Beri v. Attorney General (April 12, 2020).)
On January 28, 2020, ahead of the national election of March 2, 2020, the attorney general of Israel filed an indictment against outgoing Prime Minister Binyamin Netanyahu in the Jerusalem District Court for the offenses of bribery, fraud, and breach of trust. (CrimC(Jer) 67104-01-20.)
Rejecting the petition to consider the eligibility of a defendant in a criminal trial for the position of prime minister, Justice Stein noted that similar petitions had been previously rejected. The petition of January 2, 2020, filed before the March 2, 2020 election results were known (HCJ 8145/19), had been rejected as premature and theoretical, while the petition of March 16, 2020 (2033/20), following the president’s assigning the task of forming a government to Knesset member Benny Gantz, against whom there was no indictment pending, had been rejected as moot. (HCJ 2487/20 para. 2.)
The petitioners claimed that their current petition differed from the previous ones in that Gantz’s request to the president for an extension to form a government was denied, and it was therefore highly plausible that Netanyahu would shortly be assigned the task instead of Gantz. (Para. 3.)
According to Justice Stein, the current petition did not differ from the others as the president had not yet assigned the task of forming a government to Netanyahu. Stein recognized that the Court in exceptional circumstances could allow a hearing of theoretical or premature cases that raise a legal question of public interest that may evade judicial review because of a change of circumstances or an irreversible situation. The current petition, however, did not qualify as such. (Para. 5.)
The claim that it was necessary to remove doubt regarding the PM’s eligibility had been previously rejected by Court President Justice Esther Hayut, who noted that the circumstances involved “actions in the political arena during this sensitive and complex period.” According to Stein, the same reasoning applied to the current case. He opined that the Court’s refraining from rendering an opinion on the principal question did not constitute an extreme lack of reasonableness or another defect that could justify judicial intervention. (Para. 7.)
According to Israeli news reports of April 14, 2020, the president had agreed to extend the deadline by two days to enable Ganz to reach an agreement with Netanyahu on forming a coalition government. The possibility that the Supreme Court would review Netanyahu’s eligibility to serve as prime minister, considering his pending trial, was a central issue in the coalition negotiations between Netanyahu and Gantz. The parties reportedly agreed on a prime ministerial rotation, with Netanyahu taking office for the first period and Ganz for the second. The agreement was allegedly to include a provision “that if Netanyahu is unable to form a government for legal reasons – the Knesset will disperse on its way to a fourth election.” Three elections have been held in Israel since April 9, 2019, without any candidate securing a decisive victory to enable the formation of a government.
Commentators suggested that the possible inclusion of the above provision in a coalition agreement meant that “if the judges prevented Netanyahu from serving [as prime minister], Blue and White [Gantz’s party] had agreed to impose the responsibility for the dissolution of the Knesset on the High Court.”