IDI experts on Supreme Court petitions: allowing Netanyahu to form a government would constitute a conflict of interest and would result in a negative and irreversible precedent for the rule of law.
As Israel's Supreme Court heard oral arguments today on petitions to bar Prime Minister Netanyahu from forming a government, experts from the Israel Democracy Institute - Prof. Mordechai Kremnitzer, Prof. Yuval Shany and Dr. Amir Fuchs prepared a detailed opinion (Hebrew) on this legal development. The opinion states that the criminal indictments against the Prime Minister place him in grave conflict of interest, undermines public trust in government, and sends a negative message as to the importance of maintaining proper ethics in public service. It further contends that the charges against Mr. Netanyahu - bribery, fraud and breach of trust - are incompatible with the need to ensure that a public servant is worthy of serving as public trustee.
"Coming to terms with the tenure of an elected public servant accused of such serious offenses, creates serious discrepancy between the standards applicable to the prime minister and to other public servants who are required to suspend themselves in case of a serious offense, in a manner that violates the principle of equality before the law. Exempting the prime minister, who is the paramount figure in public service, from upholding these ethical principles, undermines the moral basis for the entire system and will inflict serious damage in the struggle against corruption in government.”
Moreover, Prime Minister Netanyahu's references to the indictments, and to the investigators and attorneys who investigated and charged him (and in particular the call to "investigate the investigators") highlights the sharp conflict of interest and the possibility of thwarting the legal process that will exist as a result of his position as the executive who is responsible for the law enforcement agencies while at the same time his personal position is one of a suspect and a criminal defendant.
As for claims that the corona crisis and the importance of government stability at present take precedence over considerations of ethical standards, conflict of interest and public trust – these IDI experts believe that the situation in which the Prime Minister is under indictment would constitute a negative and irreversible precedent for public norms and the democratic character of the state.
One of the Court's options is to decide that Netanyahu is disqualified from serving as prime minister, but that this decision should be suspended for a number months until the current state of emergency has passed and the political system has stabilized.
It is also the opinion of the IDI experts that if the Court does not rule that the Prime Minister is barred from forming a government – the Attorney General should consider ruling, either now or in the future, that the prime minister is legally incapacitated and is unable to fulfill this role.