How will the High Court rule on alternate PM status for Netanyahu?
The High Court of Justice threw the entire political establishment a curveball on Tuesday when it announced it would hear the petition against the constitutionality of the alternate prime minister position before an expanded panel.
A closer look at this move reveals the powerful links that are playing out right now between the trial of Prime Minister Benjamin Netanyahu, the future of the alternate prime minister position and the High Court’s entry into the picture.
There are a wide range of possibilities about how the High Court might rule and also about what it might rule on.
First, it would seem that the High Court must decide whether the concept of an alternate prime minister as set down by the recently passed Basic Laws on the issue is constitutional.
This ruling cannot be delayed beyond a few months because Blue and White’s Benny Gantz is already serving in that position.
In legalese: It is already concrete and happening and not just theoretical.
Any ruling will have tremendous significance.
An endorsement from the High Court will pave the way to a structural change in the way Israeli government functions.
A ruling against could send the country to a fourth election.
But after that there is an entirely separate question: Given the pending bribery indictment, can Netanyahu take up the position of alternate prime minister in November 2021 when he and Gantz are due to switch?
Does the court have to decide this issue in June 2020, 15 months before it becomes concrete?
Many scenarios could prevent the issue from ever arising.
Early elections could be called because of a political crisis over annexation or debates over how many haredim (ultra-Orthodox) will serve in the IDF.
Netanyahu’s trial could ratchet up at a faster pace than many predict, and he could be either acquitted or convicted before November 2021.
Either an acquittal or a conviction would completely change his legal status and make it extraneous to rule on his legal status as someone with an indictment pending.
In fact, the possibility of a Netanyahu acquittal or conviction before November 2021 had led to speculation that the High Court delayed ruling on this alternate prime minister issue before the government’s formation in May with the hope that it would never have to rule on it at all.
There are two problems now with this theory of never having to address the issue.
First, the Jerusalem District Court endorsed Netanyahu’s lawyers’ request to slow-walk the trial, at least initially.
Although the first hearing of the trial took place on May 24, the District Court gave the sides until July 19 to propose a schedule for calling witnesses.
At this pace, if witnesses are not called until spring 2021, then finishing the trial by the alternate prime minister rotation switch point in November 2021 becomes an impossibility.
Second was the High Court’s decision on Tuesday to hear the issue before an expanded panel.
If the High Court’s intention was to kick the can down the road until November 2021, it probably would not have called for an expanded panel. Expanded panels are only called for when a major decision is expected.
So the only question becomes: Will the High Court decide everything now, including Netanyahu’s eligibility to serve as alternate prime minister in 17 months? Or will it decide only the general question of the alternate prime minister arrangement being constitutional, while putting off Netanyahu’s eligibility?
Regardless of whether the High Court decides about Netanyahu’s eligibility now or when it is time for the alternate prime minister switch, the actual decision will be a tough call.
On one hand, the High Court just green-lighted Netanyahu to be prime minister with an 11-0 unanimous vote despite his pending bribery indictment.
A core piece of the High Court’s ruling was that it could not overturn an explicit Basic Law provision that only required a prime minister’s resignation upon conviction and exhausting all appeals.
Everything related to the alternate prime minister position was also passed as a Basic Law.
In theory, this would mean that the High Court cannot intervene regarding the alternate prime minister position any more than it could regarding Netanyahu being prime minister.
On the other hand, the High Court emphasized that its May 11-0 ruling kept the Deri-Pinhasi principle alive. According to that principle, any minister who is indicted must resign.
The High Court reasoned that the prime minister was exempt by a specific Basic Law, but otherwise this principle would still apply to all other ministers.
Here, if they allow Netanyahu to be alternate prime minister, the Deri-Pinhasi principle would be truly shredded.
Of course, the High Court could argue that these two exceptions are only two sides of the same coin. In other words, the two exceptions are an extension of the same idea: that a head or heads of state have a different status when it comes to being forced to resign than do ministers because their resignation can bring down the entire government.
This last point will be critical, and timing may matter.
There is little doubt that if the High Court took away Gantz’s alternate prime minister powers, the government would fall. There is also little doubt that if the High Court ruled in the near future that Netanyahu is out once he is off the prime minister’s chair, the government would fall before that happens.
But what if Netanyahu gets to be prime minister for 18 months, the switch is finalized, and the court only rules about Netanyahu’s eligibility after the switch?
All that would be at stake is whether Netanyahu keeps the alternate prime minister title. But even if Netanyahu is forced out, the Likud’s volume of seats could serve to maintain its status as an equal partner with prime minister Gantz.
Only the High Court justices know this decisive point of whether they plan to tackle all of the issues now or some now and some in late 2021.