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Supreme Court ruling: Checkmate for Israel’s Binyamin Netanyahu?

INTERVIEW

From our special correspondent in Israel – Three months into the war between Israel and Hamas, the Israeli Supreme Court dealt two major blows to Binyamin Netanyahu and his governing coalition this week. The court struck down an essential part of the government’s polarising judicial reform plan and postponed the implementation of a law shielding the PM from mandatory recusals. FRANCE 24 spoke to Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, about the impact these decisions will have.

Protesters walk past a banner depicting Israeli Prime Minister Benjamin Netanyahu amid ongoing demonstrations against the government's judicial reform bill, in Tel Aviv on April 15, 2023.
Protesters walk past a banner depicting Israeli Prime Minister Benjamin Netanyahu amid ongoing demonstrations against the government’s judicial reform bill, in Tel Aviv on April 15, 2023. © Jack Guez, AFP

Israeli Prime Minister Binyamin Netanyahu suffered a major setback on Monday as the country’s top court voted narrowly (8 to 7) to overturn a law passed in July that took away judges’ ability to veto government and parliament decisions that they deem “unreasonable”. 

The law was a key component of the government’s contentious plan to overhaul the country’s judicial system that sparked massive protests across the country. 

On Wednesday, the Israeli prime minister suffered another legal defeat as justices ruled (6 to 5) to delay the enforcement of a controversial law that would shield Netanyahu from being forced to recuse himself from office if ordered to do so by the attorney general or the Supreme Court. 

The recusal law, which was passed in March, will now only go into effect at the beginning of the next term of the Israeli parliament after the next general elections.  

The Israeli high court’s rulings comes as Netanyahu’s popularity plummets in opinion polls amid mounting criticism of Israel’s offensive on Gaza.  

According to a recent survey, Netanyahu’s party – Likud – would win only half of the seats it currently occupies (16 versus 32) if elections were held now. 

To better understand the impact of the high court’s decisions, FRANCE 24 spoke to Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute.  

Israel Democracy Institute senior researcher Amir Fuchs photographed January 4 in Kfar Sava, Israel.
Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, in Kfar Sava, Israel on January 4, 2024. © Assiya Hamza, FRANCE 24

Fuchs: The government’s reform aimed to reduce the power of the judiciary. Israel doesn’t have a formal constitution. But we do have these Basic Laws that serve as a quasi-constitution. If a law goes against the Basic Laws, the Supreme Court can say this is an unconstitutional law, and they can therefore strike it down. This has happened just under 20 times in 30 years since the Supreme Court altered Israel’s system of government in 1995.

In Israel, we don’t have checks and balances as in other country’s systems. For example, we don’t have a real separation of powers between the executive and the legislature. The government rules through a majority coalition in parliament. If you win a simple majority of 61 seats, you can do whatever you want. The only thing we have as a counterbalance is a strong and independent Supreme Court. And what Netanyahu’s government wanted to do was to change that. 

The government also wanted to change how the judges are nominated. So that they could just appoint the judges they wanted.

The attorney general heads the state prosecution system. Netanyahu is currently facing charges of fraud and corruption. If the law had been passed, Netanyahu could just fire his prosecutor and pick another one, which would be more convenient for him.

The high court also postponed the recusal law which aims to protect Netanyahu, stating that it was “clearly personal” in nature”. What does that mean? 

Fuchs: For decades we had a very vague law which said that when the prime minister is incapacitated, then someone will replace him. But it didn’t explain what the grounds for this incapacity might be. Would it be on medical grounds or for other reasons? Nothing was written about this – or the procedures to be followed. 

So Netanyahu’s government decided to change the Incapacitation Law – meaning that only when the prime minister himself says he is incapacitated, or three quarters of the government says he is, would the prime minister then be recused.

The government then needs a two-thirds majority in the Knesset. They introduced measures to ensure that this would never happen. After they voted for it, Netanyahu announced to everyone that his hands were no longer tied. However, the court said the law was “clearly personal in nature” and postponed its enforcement until the next Knesset. So the law won’t be implemented until the next elections. 

Can Netanyahu be impeached? 

Fuchs: If there is a majority of 61 MPs, they can just hold a no confidence vote and form a new government. 

But what can happen – and what always happens in Israel when a government loses political support – is that they just announce new elections. And for that, you need 61 MPs in the Knesset who support a new election. And the whole opposition will agree with that. We’ve seen in polls that a lot of people who voted for the coalition are now totally against it.  I don’t know when the war will end. But if the war ends tomorrow, they will probably announce an election.

Will Netanyahu be held accountable for the October 7 attacks? 

If the government changes, there will be an investigation committee, which is very independent because it is appointed by the Supreme Court, not by the government. This is what usually happens after big failures like what happened in 73, and in 82, when Christian militias, with the support of the Israeli army, massacred up to 2,000 Palestinians in Lebanon’s Sabra and Shatila refugee camps. 

The committee will ask Netanyahu hard questions and they will deliver a verdict. And they will say that he is to blame. He was negligent. He cannot be re-elected. For example, when they said that former prime minister Ariel Sharon, who also served as defence during the Sabra and Shatila massacres, can no longer be defence minister, he was removed from office.

If Netanyahu is convicted in his various trials, will he be able to stay in power? 

If he’s convicted in a final court decision after the appeal, then according to the Basic Laws, he has to step down. It will take time – at least another year.

Maybe after the war when Netanyahu will see that everything is falling apart, he might get some kind of deal – whereby he doesn’t go to prison and isn’t even convicted of anything serious in exchange for stepping down and not participating in the election. 

Once Netanyahu understands that he can’t be re-elected, then maybe he will go for the deal. And I’m kind of sure that the attorney general will aim for such a deal so he/she doesn’t have to deal with the trial. 

Again, this is an optimistic scenario. I’m not sure that this will happen. A lot of people were sure that that this would happen years ago when he was indicted in 2019 on corruption charges. But he chose to fight and ran in elections again and again. He’s never given up but maybe he will have some good advisors that will say: “This is the time to step down, you’re not popular enough, you won’t get elected. So at least use that bargaining chip to close all the criminal files on you.”

This article has been translated from the original in French

This interview has been edited for clarity and length. 

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