Photo Credit: Yonatan Sindel/Flash90
Supreme Court President Esther Hayut and Prime Minister Benjamin Netanyahu.

The High Court of Justice will convene Sunday morning in an expanded panel of 11 judges to hear petitions against the coalition government deal between Likud and Blue&White. Its first day of the hearings will focus on whether the task of putting together the next government coalition can be handed to Benjamin Netanyahu, who is facing three criminal indictments. On Monday, the panel will deal with the other issues pertaining to the Netanyahu-Gantz deal.

The hearings will be broadcast live.

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The panel includes Supreme Court President Esther Hayut, Court Vice President Hanan Meltzer, and Justices Neal Hendel, Uzi Vogelman, Yitzhak Amit, Noam Sohlberg, Daphne Barak-Erez, Menachem “Meni” Mazuz, Anat Baron, George Karra, and David Mintz.

The debate over Netanyahu’s authority to put together a new government begins with sections 17 and 18 of the Basic Law: Government, which state that “only the Attorney General can decide to open an investigation and to indict the prime minister. The prime minister’s trial will be conducted in the district court before a three-judge panel. To the extent that the court convicts a prime minister of an offense which involves moral turpitude, and to the extent that the Knesset did not reject the prime minister by a majority vote after giving him a chance to present his arguments, his term of office will be terminated and his government will be disbanded when the court’s verdict becomes final.”

Which means that as long as the prime minister has not exhausted his legal appeals, and until the Supreme Court has rendered a final ruling finding him guilty, he is allowed to continue his tenure.

This contradicts previous High Court rulings which held that elected officials who were indicted could not continue their term in office. In the Deri-Pinchasi ruling issued on September 8, 1993, by two identical High Court 5-judge panels, an indictment against a minister or deputy minister may require, in some cases, their dismissal by the prime minister. And in 2013, the court issued a ruling to dismiss mayors charged with criminal indictments.

But on Thursday, Attorney General Avichai Mandelblit filed his response to the petitions in which he said the Deri-Pinchasi precedence should not be applied to the prime minister, since his role is different and his resignation would bring about the resignation of the entire government.

According to Mandelblit, even though this creates difficulties, there is no legal impediment to imposing on Netanyahu the task of assembling the government. The AG suggested the legislators have already examined the possibility that a prime minister would be charged with criminal activity, and chose to condition his impeachment on his final conviction.

But Basic Law: Government sections 17 and 18 do not cover a situation whereby an MK who is facing criminal indictments is qualified to cobble together a new coalition government. It’s one thing, arguably, to permit a defendant in a criminal case to continue serving as PM to keep government going, it’s a different matter altogether when he is only the acting PM in a provisional government, and has been picked as one MK out of 120 to build a new coalition government. Here there is no “danger” of the government coming to an end – it already has ended and a new government is a certainty.

Can the President assign this task to a defendant in a criminal lawsuit? We’ll hopefully get the answer on Thursday this week.

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