Election campaigns by their very nature are an exercise in uncertainty, Chief Justice Esther Hayut opined in December 2019 in explaining why the top court would not rule on the question of whether an elected official under criminal indictment can be tasked with forming the government of Israel. Hayut and the other two justices on the panel adopted the position taken by Attorney General Avichai Mandelblit who argued that a petition by 67 high-tech entrepreneurs represented by Attorney Dafna Holtz-Lachner was theoretical and premature given that elections were only scheduled for March. The justices were unimpressed with the petitioners’ warning of the chaos that would ensue on the day after the March 2 Knesset elections, should Mandelblit rule that an elected lawmaker under criminal indictment cannot be tasked with forming the country’s next government. The elections are now over, indicted Interim Prime Minister Benjamin Netanyahu has a clear lead and chaos is already here.

With voters having failed to pull these chestnuts out of the fire (offering Netanyahu the lead), the issue reverts to the legal arena. A petition filed the day after the elections argued that Netanyahu could not be tasked by President Reuven Rivlin with forming the next government, and sought a Supreme Court injunction suspending the process. On March 4, the court once again rejected the petition as premature given that official election results had not yet been issued and that Rivlin had not started conferring with the newly elected Knesset faction leaders on the issue. Nonetheless, the justices will likely be asked to delve into the matter within days.

The petitioner, the Movement for Quality Government, asked the court to delay the procedure under which the president gives the nod to the lawmaker recommended by most Knesset factions — pending an opinion on the required criteria for recommending a candidate to the president. The petitioner reminded the justices that Netanyahu was currently not an elected prime minister (having served as interim prime minister since the 20th Knesset was dissolved in December 2018), only a rank-and-file Knesset member bound by the same rules of eligibility that apply to all elected officials accused of serious crimes. Therefore, he cannot be eligible to form a government and run it, the petitioner argued.

The petitioner also wondered how Netanyahu could conduct the affairs of state while having to attend court several times a week for full days of trial deliberations. Not only that, any decision made by the accused leader would be tainted by an inherent conflict of interest, with the public unable to know whether decisions, appointments and even legislation he instigates are in the best interests of the state or in his own. Several appointments of top gatekeepers and law enforcement officials are coming up this year, chief among them of the police commissioner, state attorney and Knesset legal adviser. The High Court will have to address the question of whether an official under criminal indictment for bribery, fraud and breach of trust can be tasked with making such appointments.