With the postelection political picture once again unclear, one scenario that is again gaining traction is some kind of political alliance to take temporary control of the Knesset and pass a law barring Prime Minister Benjamin Netanyahu from being the premier on the basis of his already having been indicted.
The idea behind such an initiative would be that a band of left, right and Israeli-Arab parties might be unable to form a government, but might still be able to take Netanyahu out of the mix.
Their goal would be either to encourage the Likud to dump Netanyahu once he is disqualified from being premier, or to make it easier to defeat the Likud in a fifth round of elections.
This scenario raises a variety of legal, social and ethical issues.
From a legal perspective, Western democratic legal systems consider it improper to pass retroactive laws that apply to a single individual.
Passing such a law would effectively ignore the will of more than a million Likud voters who have made Netanyahu once again the single largest vote-getter. How could he legally be unable to be prime minister given that he has fulfilled that role for the last 17 months despite his indictment in November 2019?
In addition, the High Court of Justice declared in May 2020 that Israeli law does not bar Netanyahu from being prime minister simply by virtue of his indictment.
No doubt Netanyahu would go to the High Court to invalidate such a law as inconsistent with its own May 2020 ruling.
So there are both legal and ethical problems.
Socially, the million people who support him could decide to take to the streets, and the country could descend into unprecedented civil chaos.
It is one thing if Netanyahu, as the single largest vote-getter, is ousted by a coalition of 61 MKs, none of whom won as many votes as he did. It is a very different thing to change the rules of the game to completely bar him from eligibility, and his supporters may not stomach this as easily.
But this is only one side of the argument. The other side is that since Israel has no constitution, the law is whatever the Knesset says it is – especially if it is passed as a Basic Law.
Twice in recent months, the High Court faced newish Basic Laws of which it clearly disapproved in a broad sense, but heavily hinted that it did not believe it had the authority to veto them.
Essentially, the justices explained that they probably could intervene only regarding a Basic Law that was not merely problematic in the Western legal tradition, but also a gross effrontery – like a law allowing the prime minister to arbitrarily execute citizens without trial.
This means that if a Basic Law was passed against Netanyahu and he petitioned against it, the justices would likely say that the law raised “legal difficulties,” but that they lacked the authority to intervene.
The ethical issue can also be addressed.
In the same May 2020 decision in which the High Court green-lighted Netanyahu to form the next government, it also unleashed unprecedented criticism upon him for failing to resign.
There were strong messages from the justices that it was morally problematic for Netanyahu to continue in office, even if the law did not yet force him out.
The justices indicated that the law should be changed to bar a person from serving as prime minister once indicted – given that the norm of voluntary resignation now appeared to be defunct.
So while the justices would probably criticize the retroactive and personal nature of such a law, they probably would not come to Netanyahu’s rescue.
After all of that, it is still far from clear that 61 MKs would rally around such a retroactive law, especially when New Hope Party leader Gideon Sa’ar has expressed support only for a prospective law.
Whether Sa’ar might bend his principles and agree to a retroactive law that applies to Netanyahu remains to be seen.•