Attorney-General Avichai Mandelblit on Thursday refused a second time to tell the High Court of Justice his view on whether Prime Minister Benjamin Netanyahu is eligible to form a new government.
His refusal thrust into the spotlight a nearly unprecedented break between his office and the High Court over the handling of issues related to the prime minister and could have wide repercussions for the nation.
On Sunday, the High Court set a hearing for December 31 for Mandelblit to argue before it along with other parties about whether Netanyahu can form a government.
It also ordered Mandelblit to submit a legal brief on the issue by December 29.
The High Court issued this order after it had already requested Mandelblit’s view once and the attorney-general had said that he would not give his view unless the High Court explicitly declared that it was going to rule on the issue pre-election.
While the implication of the High Court’s order to Mandelblit on Sunday was that it will in fact make a decision about Netanyahu’s eligibility pre-election, the attorney-general said that this was not good enough.
Rather, he said he would not give his view until the High Court explicitly stated in a formal order that it would be deciding the issue pre-election.
In that light, Mandelblit suggested that the December 31 hearing be used to argue over the issue of whether the court should decide the issue pre-election.
If the court then decided it wanted to determine Netanyahu’s eligibility pre-election, then Mandelblit would request additional time to give his view on the eligibility issue itself.
Netanyahu reacted to the Sunday High Court ruling by questioning the right of the Supreme Court to intervene.
“In a democracy, only the nation decides who will lead the nation and no one else,” he told Likud activists at a campaign rally in Jerusalem.
Former justice minister Ayelet Shaked said on Sunday that only the president can decide who gets to form a government and the Supreme Court cannot intervene. She said that was clear in the law.
“Trampling Basic Laws or twisting them is a grave mistake that will lead to the public losing trust in the legal system and a feeling that a coup is taking place,” Shaked warned.
Even the prime minister’s challenger in the Likud leadership race, MK Gideon Sa’ar, defended him.
“The question of whether Netanyahu can form a government is not a legal question but a political one, and it is not right for the Court to get involved in the matter,” Sa’ar said. “The law is clear: A prime minister must be replaced in the ballot box and not in court.”
Although Mandelblit had refused to take a definitive side last week, his remarkable legal opinion last week summarized both sides of the question on an issue which could determine the fate of the nation.
He summarized arguments both about whether the voters had a right to know the court’s decision pre-election or whether the very act of the court issuing an opinion pre-election would be an undue interference with voters’ right to choose.
All of this has come to a head following Mandelblit’s own decision to issue an indictment against Netanyahu for bribery and other crimes on November 21.
However, there are disparate legal arguments about whether Netanyahu must resign in the near future because of the indictment or whether he can stay in office until a future potential conviction and the exhaustion of all appeals.
Since that question itself is ambiguous, there is also a lack of clarity about whether the court must weigh in pre-election.
A group of hi-tech officials filed a petition earlier in December pressing the issue.
In response to the petition, Mandelblit said that the complexity of the issue and the massive consequences it carried for the country mandated that the High Court confirm it would decide the issue.
By the very fact that Mandelblit did not take the court’s initial order to give his opinion, and suggested that the court had to effectively “convince” him that it was going to determine the issue, he hinted that it would be better for the judicial establishment to let the voters decide the issue.
He also said that he would prefer that the court decide the issue without him having to weigh in at all, with the court being able to note that he effectively took a neutral stance on the question.
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