Israel Election: Netanyahu’s Dream of 61 Seats Spells Certain Danger for Rule of Law

If Benjamin Netanyahu makes his campaign dream come true and the right-wing bloc he heads gets a 61-seat majority in the next Knesset, his immediate goal will be to head off his trial and punish the legal system for daring to investigate and prosecute him for bribery, fraud and breach of trust. A victory for the bloc will deliver an eternal blow to the rule of law in Israel, under the guise of “judicial reform” and “reining in the High Court of Justice,” a common desire of all the right-wing and religious parties.

Here is a possible scenario for getting the legal burden out of Netanyahu’s way. The bloc quickly forms a coalition that passes a broad “override clause,” which would ban the High Court from striking down laws or administrative decisions on grounds of unreasonableness. This clause would allow the coalition majority to neutralize any ruling that the government doesn’t like, and would essentially turn the Supreme Court into a department of the Prime Minister’s Office.

After the High Court is neutralized, to the cheers of the right and its supporters, comes the next phase: Replacing Avichai Mendelblit with an attorney general who “thinks like us.” Someone like Professors Ron Shapiro or Aviad Bakshi, who volunteered to defend the state before the High Court over an attempt to investigate the Justice Ministry’s unit for the investigation of police officers, when Mendelblit refused to do so. Or it could be someone even more loyal and closer to the inner circle than they are. Netanyahu has already hinted that as far as he’s concerned, Mendelblit’s on his way out.

The new attorney general will have only one assignment: to use his authority under Section 231(a) of the Criminal Procedure Law and order a delay in the legal proceedings against Netanyahu. This authority allows the attorney general to suspend any legal proceeding from the time an indictment is filed, so long as there is no verdict. The suspension is ostensibly temporary (a year for mild violations, five years for serious crimes) but in fact it means the trial is being canceled.

According to the instructions on delaying legal proceedings, such a suspension should be ordered “due to the special circumstances of the violations or special personal reasons relating to the accused.” For Netanyahu, special circumstances and special reasons can easily be found: The defendant is running the country, most of the public elected him despite the indictment, the circumstances of the Bezeq-Walla allegations are not routine, etc. It’s easy to imagine the new attorney general explaining that suspending the trial is necessary “to put this issue behind us,” or to “stop the public rift regarding the cases against the prime minister.” All efforts to challenge this decision in the High Court of Justice will crash against the defensive wall of the override clause.

This scenario might have sounded insane a few election campaigns ago, but today it’s clear that it would have the right-wing bloc’s solid support. Unlike trying to pass a version of the “French law,” which is meant to foil the prosecution of a sitting prime minister, suspending legal proceedings doesn’t require retroactive legislation, but merely the exercise of an authority the attorney general already has. One just has to find the right attorney general.

Herein lies the difference between a 61-seat majority for the right, and the situation that has prevailed for more than a year, with Netanyahu as prime minister of a transitional government. Netanyahu still has full authority to make decisions about Hamas in Gaza, the Iranians in Syria, or the coronavirus. He can fire and appoint ministers, send planes to bomb wherever he pleases, meet heads of state and bring Falash Mura from Ethiopia. But without a majority in the Knesset, he was unable to receive parliamentary immunity and avoid trial. That’s the biggest achievement of Kahol Lavan and Avigdor Lieberman in the short-lived, outgoing Knesset. Netanyahu is now fighting to obtain a majority so he can halt his trial at the very last stop.

There are many reasons that the right seeks to deprive the High Court and the attorney general of their independence as restraints on the government. The settlers want a permit to steal Palestinian land; the ultra-Orthodox want to foil liberal rulings on women’s and LGBT rights, or on religion and state; Likud supporters are angry at the “old elites” who they claim still run the country from the Justice Ministry and the Supreme Court. If they win, realizing their dream will destroy Israeli democracy, which is dependent on the independence of the judicial branch and of the attorney general to set rules and norms for the government’s work. That’s the fundamental danger of Netanyahu winning a decisive victory on Monday.

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