Constitutional Impediment to Form a Government

As I read Israel’s constitutional law, the state’s president is prohibited from imposing the mandate to form a government on a criminal defendant.

There is nothing in the argument that claims that the power of the state’s president to impose the role of forming a government on a particular member of the Knesset is an absolute authority. We are dealing with a governing authority, which is subject, by all means, to the fundamental principles of the public law in Israel, including reasonability, proportionality, the prohibition on conflicts of interest, the prohibition on impartiality, the prohibition on weighing foreign considerations, the prohibition on arbitrariness and more.

This authority is also subject to the binding rulings of the Supreme Court of Justice, including the ruling of Deri and Penchasi, in which it has been determined that when a charge of serious crimes is filed against a minister, the Prime Minister’s authority to remove the minister from his ministry is mandatory. This, although the language of the Basic-Law the term of such minister shall cease only on the day of a convicting judgment against him and a decision that there is an offense in which he is convicted of infamy.

This ruling was expanded in the matter of Gepso and Rochberger. In this last case, the Court held that in view of the indictments filed against the two mayors of Nazareth Illit and Ramat Hasharon, Gepso and Rochberger (respectively), the councils of the authorities had to convene and discuss the transfer of mayors from office. That ruling was held despite section 20(d) of the Local Authorities Law, which states that only if the court held that the offense in which the head of the authority was convicted contains infamy, the head of the authority shall be suspended from office until a final judgment is made in his case, and also of section 20(e) of the same law which states that the term of office of the head of authority will expire on the day the judgment, which states that the offense contains infamy, becomes final. The Court went on to state that the decision of the Municipal Council not to devolve Gepso from office, and the case of Rochberger in which they did not convene to transfer him from office is inconsistent with the principle of preservation of the moral integrity of the law and the rule of law, and they are considered extremely and utterly unreasonable. In these two cases, the Court stressed that it was not comfortable, in the public eye, with the idea of Gepso and Rochberger’s running for mayor in the upcoming elections, despite the indictments filed against them, although in the legal context, such elections cannot be prevented. It stated that if the candidates or any of them may be elected to the mayor’s office, the council will be obliged to convene shortly after the elections, to discuss and decide on whether or not to transfer them from office, and that in any event, the decision to be taken is also subject to judicial review.

This legal situation is strikingly similar to the case of MK Benjamin Netanyahu, who chose to run for the Prime Minister Office, even though the Attorney General’s decision was made to prosecute him on the basis of serious crimes concerning the purity of moral measures. In this regard, the question is not that of preventing him from running for Knesset and/or limiting his desire to acquire the mandate to successfully form the next government. The question concerning his case today is that of the power of the President to impose the role to form a government on a Knesset member who carries with him three serious indictments charging him the offenses of bribery, fraud, and breach of trust. Today’s question does not deal with the question of MK Netanyahu’s resignation as Prime Minister, or the Knesset’s duty to exercise its authority under section 18 of the Basic Law: the Government which can decide, by majority of votes, to transfer the prime minister from his office. The question is whether Netanyahu can, at this stage, be given the task of forming a government, if at all.

The President is not allowed to transfer the mandate to MK Benjamin Netanyahu for the purpose of forming a government in accordance with the “Unity”/“Emergency” agreement. And if he does so, his decision would be totally tainted with extreme unreasonableness.

About the Author
Professor Mohammed Wattad is Associate Professor of Law and Dean of the Law School at Zefat Academic College. He clerked for Israel’s Supreme Court. Expert in Constitutional Law, Criminal Law, and International Criminal Lawץ
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