From our special correspondent in Israel – As the war in Gaza has raged for three months, Israel's Supreme Court has just dealt a harsh blow to Benjamin Netanyahu. Key provisions of the government's controversial judicial reform last year have been repealed. Enough to further weaken the government coalition, which is at half mast in the polls. Interview.
Published on: May 1, 2024 – 07:49
7 mins
This is a major snub to Benjamin Netanyahu. His judicial reform, which had driven millions of Israelis onto the streets, has been stripped of its substance. On January 1, Supreme Court justices decided by a narrow majority (eight to seven) to invalidate a basic law passed in July that deprived them of the right to revoke the decisions of the government or parliament (the Knesset). Justification that they are not appropriate.
Two days later, another decision by six votes to five postponed the entry into force of the law on the disqualification of a sitting prime minister, passed in March last year, to a later date. This change to the Basic Law on Government will come into force at the beginning of the next Knesset term, i.e. after the next elections. Enough to further weaken the head of government, whose party has collapsed in the polls since the October 7 attacks and the start of the war. If Israelis were called to vote today, Likud would win only half the seats it occupies (17 compared to 32 currently). Decryption with Amir Fuchs, researcher at the Israel Democracy Institute in Jerusalem.
Amir Fuchs, January 4, 2024 in Kfar Sava. © Assiya Hamza, France 24
France 24: What consequences would this reform have had if it had not been overturned by the Supreme Court?
Amir Fuchs: All components of the reform were aimed at strengthening the majority of the Knesset, which is controlled by the government. In Israel we do not have a formal constitution. We have fundamental laws that have been enacted over the years and interpreted by the Supreme Court. They serve as a higher standard, a constitution, so to speak. If a law violates constitutional law, judges can declare it unconstitutional and repeal it. This has happened almost 20 times in 30 years. In Israel there is no real separation between the executive and legislative branches. The parliamentary system means that the government has a coalition and a majority in the Knesset at all times. And there is only one house in Parliament. If you have a majority of 61 MPs, you can do whatever you want. The only check and balance is a strong and independent Supreme Court. With this reform, the coalition could appoint the judges it wanted. But also all other judges such as the Attorney General. He is head of the public prosecutor's office and is negotiating with the accused prime minister. He could have sent it back and chosen another one that suited him better. The court ruled that the power to enact fundamental laws was limited. We are returning to a situation where the government is being scrutinized for unreasonableness.
The prime ministerial repudiation bill was also postponed, saying it was “clearly personal” to Benjamin Netanyahu. What does that mean ?
For decades we had a very vague law that said that if the Prime Minister was incapacitated he would be replaced by someone. However, she did not mention the reasons for this inability. Are these just medical problems? What is the procedure? Nothing was written. The government has decided to amend the Incapacity for Work Act to remove this power from the Attorney General. Only the Prime Minister himself or three-quarters of the government could have declared his incapacity to hold office. They have all kinds of procedures in place to ensure this never happens. The idea was to take Netanyahu's situation into account. When she was adopted, he announced that his hands were no longer tied. The law is postponed until the next Knesset: the incapacity law will not be applied until the next elections. This question was completely paranoid on Netanyahu's part.
Can Benjamin Netanyahu be indicted? ?
With a majority of 61 MPs, a vote of confidence and the formation of a new government is sufficient. There is no need to impeach the Prime Minister. And incapacity is not removal from office. It's not like impeachment in the United States. We therefore do not need an impeachment, which is always politically carried out by a majority in parliament. And that won't happen. It's war time, no one will want to do this now. Nobody ever uses it because they can't agree on a new government. What always happens in Israel when a government loses political support is that it announces new elections. 61 Knesset members must be in favor of this. The entire opposition will agree. Polls show that many people who voted for the coalition are now completely against it. I don't know when the war will end, but elections are announced.
Will Benjamin Netanyahu be held responsible for the October 7 attacks? ?
Should there be a change of government, there will be an independent commission of inquiry appointed by the Supreme Court. It is a tradition after disasters or major failures like 1973 or Sabra and Chatila [1982] in Lebanon. She will ask Netanyahu tough questions and hand down a formal verdict saying he is guilty of negligence and cannot return to office. The commission declared that Ariel Sharon could not become defense minister and was dismissed.
If Benjamin Netanyahu is convicted in his various trials, will he be able to remain in power? ?
As soon as the conviction is final, he must resign according to the basic laws. It will take a year for the cases to be heard, then at least another year for an appeal. It will take a long time. Perhaps after the war, Netanyahu will make a deal: He will resign, not run for office again, and drop some charges in return. Not only will he not go to prison, but he will not be convicted of any serious crimes that appear on his record. If he realizes that he cannot be re-elected, perhaps he will choose this path. And I'm pretty sure the attorney general would want to make a deal like that and not have to worry about the trial. This is also an optimistic scenario. I'm not sure if that will happen. Many people were convinced this would happen years ago when he was indicted. But he chose to keep fighting and running for office. He never gave up. Maybe one day he'll have good advisers telling him it's time to resign, that he's not popular enough, that he won't get elected. He will use the opportunity to drop all criminal proceedings.