The corruption charges brought against Prime Minister Benjamin Netanyahu of Israel on Thursday not only threaten his political future, they also present the country with an unprecedented legal quandary.
Netanyahu, the country’s longest serving prime minister, also holds the dubious distinction of being the first to be indicted while in office. He has denied the allegations against him.
Israel was already struggling to choose a leader who could form a new government after two inconclusive elections this year. Netanyahu’s indictment adds further uncertainty to a chaotic political landscape.
Here are some ways it could play out:
An indicted leader in office
Israel does not have a constitution. Its primary governing principles are enshrined in what are known as the Basic Laws, one of which addresses a prime minister facing trial.
Under that law, Netanyahu can remain under indictment and even stand trial while in office. Lawmakers could vote to oust him only after all appeals are exhausted, a process that could take years.
But watchdog bodies are planning nonetheless to challenge Netanyahu’s continued tenure in court.
The provision dealing with a prime minister facing trial has never been interpreted by the Supreme Court so there is no precedent, argued Suzie Navot, a professor of constitutional law at the Striks School of Law near Tel Aviv.
“Without interpretation it’s meaningless,” she said.
Navot noted, for example, that the Basic Law does not differentiate between a prime minister charged with a lesser crime like failing to pay taxes, or a major one like accepting bribes. Bribery, the most serious of the charges against Netanyahu, carries a maximum prison term of 10 years.
A test for the Supreme Court
In two cases in the 1990s, the Supreme Court ruled that an ordinary government minister or deputy minister must be fired immediately upon being charged. But these ministers can easily be replaced. If a prime minister resigns, the entire government falls, adding to the significance of any decision by the court.
Those earlier rulings stemmed from petitions filed by the Movement for Quality Government in Israel, a nongovernmental group. The group argues that the same standard should apply to a prime minister and is preparing to go back to court.
“A prime minister under indictment is unfit to serve,” said Tomer Naor, the group’s chief legal officer. “For a prime minister, but not a health minister, to be able to continue in office is completely absurd.”
But such a finding by the court would be likely to draw fire. Right-wing politicians are already seeking to curb the Supreme Court’s powers, so a ruling that ousts Netanyahu would be viewed by some as overreaching.
Ayelet Shaked, a right-wing legislator and former justice minister, recently warned the Supreme Court justices against involvement in the political process, describing any attempt to do so as “tantamount to a coup.”
Gad Barzilai, a professor of law at the University of Haifa, said it was “doubtful” that the court had the authority to force a quick resignation.
A request for immunity
Like any lawmaker, Netanyahu could ask for parliamentary immunity from prosecution, but whether he has a practical path to securing it soon is unclear.
Immunity can be granted by a parliamentary committee and then a vote by the full Parliament. Ordinarily, a lawmaker would have 30 days after being charged to put in a request.
But after two inconclusive elections and months of political paralysis in Israel, the committee is not functioning — and may not resume work for months, until another election is held and a government is formed.
Revolt in the prime minister’s party
Rebel members of Netanyahu’s conservative Likud party could demand a primary election to choose a new leader. If Netanyahu, who has denied all wrongdoing, survives as party leader, he could still run in a national ballot for another term.
If he were to lose a primary election, he would no longer be Likud’s candidate for another term as prime minister.
A third election
Since neither Netanyahu nor his main challenger, Benny Gantz, was able to form a government after the last election, the task has been given to Parliament, which has three weeks to try to choose a prime minister who has the backing of a majority of its members. If Parliament fails, Israel will hold another election.
If Netanyahu wins that election, despite the charges, President Reuven Rivlin would have to decide if it were appropriate to task him with forming a government.
In many respects, the law is not clear.
Mordechai Kremnitzer, a former dean of law at the Hebrew University of Jerusalem and a senior fellow at the Israel Democracy Institute, a nonpartisan research center, said a large segment of the public believes that a prime minister continuing to serve while charged with serious crimes is “an intolerable combination.”
“Everyone feels there is something askew here,” Kremnitzer said, adding that a prime minister cannot “go to court from 9 a.m. till 4 p.m. and from 4 p.m. run the country.”
Isabel Kershner c.2019 The New York Times Company
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