TEL-AVIV, Israel — Former Israeli Prime Minister Benjamin Netanyahu is set to return to office, from where he could try to smooth out his years-long legal troubles thanks to new legislation pushed forward by his far-right and ultra-Orthodox allies. Critics say such a legal crusade is an attack on Israeli democracy.
Netanyahu, 73, who is on trial for corruption, will likely be backed by a loyal and comfortable government majority that could give him a lifeline against his conviction.
Justice system advocates say the proposed changes would allow lawmakers to abuse their authority and upset the delicate balance of power that keeps them in check.
“It brings us to a situation where our whole democracy comes down to elections, but once you’re elected you can do whatever you want,” said Amir Fuchs, senior fellow at the Israel Democracy Institute think tank in Jerusalem. . “This is not a normal situation in a democracy.”
The Israeli right has for years sought to change the justice system, portraying it as an interventionist and left-wing obstacle to its legislative agenda. The composition of the expected coalition now paves the way for such changes.
Netanyahu is on trial for fraud, breach of trust and accepting bribes in three scandals involving wealthy associates and powerful media moguls. He denies any wrongdoing and has presented himself as a victim of a witch hunt by law enforcement and the justice system.
Netanyahu’s political rivals say such allegations of allegedly politicized prosecutors and judges are part of a campaign to erode public confidence in the justice system and ultimately weaken it.
Netanyahu said the proposed legal changes would not affect the outcome of his trial. During his trial, he is bound by a conflict of interest agreement limiting his relationship with the justice system, although it is unclear whether this will be enforced.
Here is an overview of the legal maneuvers that could help Netanyahu:
THE ANNULAR CLAUSE
The most controversial change would target Israel’s Supreme Court in what critics say is a direct blow to Israeli democracy.
Netanyahu’s associates say the Supreme Court intervenes too often to strike down right-wing laws. They say voters choose their lawmakers to create laws and that the Supreme Court challenging those laws is an affront to people’s choice.
Israel has no constitution, relying instead on a set of “basic laws” that enshrine rights and freedoms. The courts are responsible for verifying that the legislation lives up to these laws. The Supreme Court is seen as the last resort for minorities and other groups challenging legislation they perceive to be discriminatory.
The notwithstanding clause, expected to be among the coalition’s first moves, would allow the government to treat certain Supreme Court decisions as non-binding. Under the proposal, still under negotiation, the coalition could overrule the decisions with any majority, giving the ruling bloc overwhelming power to disrupt Israel’s system of checks and balances.
Yaniv Roznai, a law professor at Reichman University near Tel Aviv, said once the notwithstanding clause is passed, the government could approve other changes to the law that could exonerate Netanyahu.
Netanyahu’s allies plan to craft a law that would postpone the prosecution of a sitting prime minister for alleged crimes until he leaves office. This is called “French law” because in France sitting presidents are immune from prosecution.
Israeli prime ministers in office can be prosecuted. But unlike France, Israel’s leaders have no term limits, meaning the immunity shield could last for years. Netanyahu is Israel’s longest serving leader, having reigned for 15 years and he has no intention of retiring.
Under the plan, a prime minister could be prosecuted for certain crimes, but that rules out corruption charges. Fuchs, the researcher, said that makes the law seem tailor-made for Netanyahu.
AMENDMENT OF THE PENAL CODE
Netanyahu’s allies have pledged to remove from the criminal code the very charge that Netanyahu is charged with in three cases: fraud and breach of trust.
They say the crime is ill-defined, which gives the court too much discretion when deciding on a sentence. They say that puts lawmakers at undue risk of wrongful lawsuits.
Critics say erasing the indictment would remove a safeguard against corruption. They argue that targeting the very charge that Netanyahu is accused of could erode the rule of law, opening the door for further changes to the legal code to save other lawmakers.
Yoav Sapir, a former Israeli chief public defender, said quashing an offense has retroactive effect. This could lead to the charges being dropped in all three of Netanyahu’s cases and the complete dismissal of two out of three cases.
RECONFIGURE THE ATTORNEY GENERAL
Today, Israel’s Attorney General consults with the government on the legal viability of legislation and represents it in court, while also being responsible for protecting the public interest from harm by government authorities. The Attorney General is appointed by the government and must be authorized by a professional committee made up of former justice officials and others.
Netanyahu’s allies want to split the attorney general’s post into three separate jobs, while making at least two of the political appointments.
The current attorney general, Gali Baharav-Miara, was appointed by the outgoing government and she appears to have supported her predecessor’s decision to indict Netanyahu. And while firing her is messy and has a bad outlook, splitting the job would keep her in her job until her term ends in 2028 while shifting some of her responsibilities to a politically appointed person who could decide to shut down the court case.
Netanyahu’s legal woes give outsized leverage to his would-be coalition partners, who have fought a tough negotiation in tougher-than-expected talks currently underway to form a government.
Its allies claim influential portfolios, such as defense, finance and public safety. They also want to grant legal immunity to soldiers operating against Palestinians, allow gender segregation in some public spaces and increase government allowances for tens of thousands of ultra-Orthodox Jews who, instead of working, study Jewish texts.
Ultra-Orthodox and far-right parties could hold the key to Netanyahu’s legal salvation, granting them great power to set the next government’s agenda and shape Israel’s future.