Reuven Rivlin resign

A strong legal argument can be made that it is unconstitutional to give a mandate to form a government to a man indicted on felony charges.

So, in a dramatic political turn the Blue and White party that aspired to present an alternative to the continued rule of a corrupt Prime Minister has imploded. Benny Gantz has elected to join a right-wing religious government and to serve under Netanyahu, the man he holds a mandate to replace.

While the negotiations for this so called “Unity Government” will probably drag on for some time as Bibi backtracks on various promises and understandings, Gantz has crossed his Rubicon and has no way back from his surrender. In the coming weeks about seventy members of the Knesset will inform the President that they want the accused, Mr Binyamin Netanyahu, to be given the mandate to form the next government.

What is our beloved President to do?

In theory, he could refuse.

A strong legal argument can be made that it is unconstitutional to give a mandate to form a government to a man indicted on felony charges. It is settled law that a minister who is so charged has to resign – even if the Prime Minister and a majority in the Knesset wish that minister to continue to serve in office. While it is a fundamental principle of law that a person is innocent until proven guilty, it is another fundamental principle that the ministers, who are public servants, should be above suspicion. If this principle applies to an ordinary minister, then surely it should apply also to any person who is to receive a mandate to form a government and become Prime Minister?

Granted, a sitting Prime Minister is legally allowed to continue to serve in office even if indicted, but this is an exception to the general rule. To indict a sitting prime minister is a hard decision for any Attorney General to make. All people are to equal under the law. If the facts and evidence before him show beyond reasonable doubt that a felony has been committed the Prime Minister should be indicted, but without the Attorney General himself being responsible for the political repercussions of forcing the Prime Minister to resign. Were Rivlin to refuse to give a mandate to form a government to the accused Binyamin Netanyahu it is likely that the Supreme Court would uphold this use of his presidential discretion.

However, given the extraordinary crises Israel is facing and the urgent need to form a government after three back-to-back elections that have failed to lead to this end, it is unlikely that the President would want to go against a majority in the Knesset and cause further constitutional paralysis.

It seems then, that Rivlin has no real choice but to accede to the request of the majority and give a mandate not just to a man who is under a heavy cloud (as was the case after the previous elections, in 2019), but to a man who has actually been indicted in court on felony charges, including bribery and breach of trust.

But he does have another choice: he can resign.

Reuven Rivlin is a phenomenal president. While coming from a strong Revisionist background, in fulfilling his presidential duties he has served all factions of this fractured nation, knowing how to bind us together and appeal to our better nature; acting as the responsible adult in the room at a time of great political upheaval and calling for an end to the divisive and vindictive election vendettas, calling for unity and for a search for common ground.

In one recent action that endeared him to his people he did a simple thing: at this time when coronavirus is enforcing social distancing, when parents have been compelled to look after their children 24/7 leaving many at their wits end, he went on television to read a story to the children of the nation. He understood. He cared. Acting as a surrogate grandfather he tried to entertain the children for a few minutes, giving time off to those in need. What a man!

Last week we saw another resignation. The Speaker of the Knesset refused to comply with a direct ruling of the Supreme Court to call a session of the Knesset and resigned his position. While protesting that he resigned as a “matter of conscience” as the Court was interfering in the workings of the Knesset, the reality is that this was a terrible lesson in civics. If the nation’s top representatives feel free to disobey court rulings, why should ordinary citizens comply with them? A loss of public trust in the judiciary will lead to a fundamental weakening of our fragile democracy.

The Speaker’s act of contempt of court did not take place in a vacuum. Like many other accused, Netanyahu has bemoaned his fate and questioned the fairness and honesty of all who have interrogated and indicted him. First, he attacked the police, then the prosecution and, recently, the Attorney General. Soon it will be the judges. Such behavior may be understandable in terms of human nature, but it is not possible to excuse it when a Prime Minister uses the full powers of his executive office and his own public standing to undermine the legal system. A democracy is based on three branches of government: the legislature, the executive and the judiciary. They are meant to operate in harmony, or at least with mutual respect. When a Prime Minister abuses his office to incite public distrust in the judiciary and acts to undermine it, democracy is in grave danger.

One needs to be beyond naïve to think that Netanyahu and his minions will restrain themselves from their continued undermining of the judiciary simply because Gantz and Ashkenazi have joined them under the “Alonka” (the stretcher) and are sharing in the burden of government. It is fundamentally wrong to have a Prime Minister who is under indictment as inevitably this will set the executive branch to undermining the judicial branch. This has been the Israeli reality in recent years as Netanyahu and his allies have acted to eviscerate the judiciary and the entire legal system. If he is allowed to continue to serve as Prime Minister, the damage will continue.

How can a mandate to form a government be given to a person under felony indictments? It is wrong, both morally and practically. When courts are summarily closed by emergency executive order is this truly justified to prevent the spread of the coronavirus? Or is it an action that fits in with the Prime Minister’s personal agenda, postponing the start of his own criminal trial? The fact that the question can even be raised undermines public faith in the institutions of government. A Prime Minister should not have such a blatant conflict between the public and his private interests.

Rivlin has about 18 months left of his term of office. He has done wonderful things for the country and the office of the Presidency. But I doubt that anything he can do in the remaining months will come close to the civics lesson he could give the nation if he simply says:

“I cannot give a mandate to form a government to a man under felony indictments. My conscience does not permit it. I resign.”

Let the parents of the nation explain to their children why their storyteller will tell them no more stories …

It is no secret that little love is lost between Rivlin and Netanyahu. Were Rivlin to vacate his office prematurely this would have the added bonus of upsetting Bibi’s plans to replace him in due course. Bibi, the great survivor of Israeli politics, has his eye on the necklace of Presidential immunity. If he fails in his other efforts to gain immunity from criminal prosecution via the Knesset he intends to accede to the presidency. All criminal proceedings against a President are brought to an immediate halt. If Rivlin were to resign now, Bibi’s plans would be thwarted as the necklace of presidential immunity will not be available when needed.

A Rivlin resignation to avoid having to sign off on giving the accused Netanyahu a mandate to form a government would not cause any constitutional crises. In the absence of the President, the Speaker of the Knesset immediately assumes and exercises the President’s powers.

Let the Speaker of the Knesset, Benny Gantz, the man who betrayed the trust of over a million voters, be the one to go down in Israel’s constitutional history as the person who signed the mandate giving the accused Benjamin Netanyahu the legal (not moral) authority to form a new government.

Reuven Rivlin should thoroughly wash his hands (to avoid infection) and have no part in this.

For the love of your country: Reuven Rivlin Resign.

About the Author
Jonathan Schwartz works as an independent commercial lawyer, with a focus on high-tech and medical devices. Born and raised in Johannesburg, South Africa, he made Aliyah at the age of 19, and moved to Zur Yigal after spending time in Jerusalem, Kibbutz Tzora and Raanana. He is married with 4 children.
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