It seems that since the appointment of Gali Beharve-Miara to the position of Attorney General, she prefers not to be in the driver’s seat but to sit in the back seat. However, it seems to me that in the days remaining until the deadline for the submission of lists of candidates for the elections to the 25th Knesset, she should make her voice heard on the issue: whether a person who has been nominated for a criminal trial may request the Knesset’s approval to head the government or serve as an alternate prime minister.
It seems that since the appointment of Rabbi Miara to the position of the Yamesh, she prefers not to be in the driver’s seat but to sit in the back seat. But in the days remaining until the submission of the lists of candidates in the Knesset elections, she must make her voice heard
A clear position on the issue must be heard now, so that the issue of the status of a Prime Minister facing criminal trial is clarified before the submission of the lists. It is not fair to the parties and to all the citizens, who are the sovereign in the country, to present a fatalistic position afterwards.
Obviously, there will be those who will file a petition on the issue after the High Court’s words, and it is important that the High Court’s last word be said before “Voters’ Day”, November 1, so that we are not dragged into petitions after the election results are announced.
This way both sides of the existing division between the “Only Bibi” camp and the “Only not Bibi” camp will know how to prepare for the day after the elections and the chances of forming a government of one kind or another.
And beyond the individual case and the short-term, we must know the basic constitutional situation in the State of Israel: Is a Prime Minister or an alternate Prime Minister allowed to serve when he is accused of certain criminal offenses, or is there a blanket prohibition from the outset, for any elected official, to serve in a ruling position when he is accused of criminal proceedings?
The status of ministers facing criminal charges for certain types of criminal offenses is derived from the “Deri-Pinchasi Rule” established 29 years ago: in September 1993, the Supreme Court ordered the then Prime Minister, Yitzhak Rabin, to fire Interior Minister Aryeh Deri and Deputy Minister The religions Rafael Panhassi from these ruling positions, after criminal charges were filed against each of them (the decisions were made simultaneously by the same panel of five judges, in two separate rulings – High Court 3094/93 and High Court 4267/93, respectively) .
A clear position on the issue must be heard now, so that the issue of the status of the Prime Minister facing criminal charges is clarified before the submission of the lists. It is not fair to the parties and all the citizens, who are the sovereign of the country, to present a position that is fatal afterwards
“The Deri-Pinchasi Law” became a constitutional-normative milestone, because since then it has been instructed:
“We have developed a practice, according to which ministers, who were indicted, did not wait for their removal from office […] Rather, they chose to resign from their position on their own initiative. […] They returned to political life only after acquittals, or after the result in the criminal trial made it possible. This conduct now amounts to a binding constitutional practice” (From the reasons of Judge Hanan Meltzer for the PSAD in the High Court 2592/20, Therepp. 72-71).
High Court of Justice 2592/20 was an attempt by various parties to prevent, through a petition, the possibility of the Knesset returning and electing MK Binyamin Netanyahu as Prime Minister after criminal indictments were filed against him on several issues.
Even earlier, as soon as the ombudsman announced his intention to accuse Netanyahu of crimes, the latter “got rid” of ministerial portfolios he had (health, labor and welfare, agriculture, and diaspora) and transferred them to others, but avoided vacating the throne of the Prime Minister.
On May 6, 2020, the Supreme Court unanimously rejected (with a panel of 11 judges) the petitions that were submitted. The opinion of the President of the Supreme Court Dorit Beinish was initially attached to the Pesah, and later the reasonings of other judges, partners of the Pesah, were added “D given
As mentioned, Judge Hanan Meltzer emphasized in his reasons the constitutional practice that requires the resignation of a minister, but he did not apply this rule to the Prime Minister facing criminal charges. According to him, the resignation of the Prime Minister under such circumstances would be considered “only ethical conduct […] A legal obligation.” In doing so, Meltzer joined his colleagues, who refused to prevent Netanyahu from standing at the head of a new government.
In his reasons, Judge Meltzer emphasized the constitutional practice that requires the resignation of a minister, but did not apply this rule to the Prime Minister who is facing criminal charges. According to him, his resignation under these circumstances would be considered “only an ethical conduct and not a legal obligation”
Mr. Meltzer’s last words were correct for Passover. However, the next day, on May 7, 2020, the Knesset accepted an amendment to the Basic Law: The Government, intended to establish the status of an alternate Prime Minister. Therefore, Article 5 of the Basic Law states:
“(a) The government consists of the prime minister and ministers others, And in an alternate government – also from an alternate prime minister.
(b) The prime minister, and in a replacement government – also the replacement prime minister – will be among the members of the Knesset; minister Other It may be that the members of the Knesset do not understand.”
From the very use of “others” and “another”, it follows that the Prime Minister and the alternative Prime Minister are in the scope of “ministers”, and from this it can be concluded that the rules of the “Deri-Pinchasi Law” are supposed to apply to them.
This is why the advisor’s guidance is so important – how does Ms. Beharev-Miara perceive the change in the fundamental law: the government and the Supreme Court’s statement regarding the binding status of the “Deri-Pinchasi Rule”?
In the opinion of the Yamesh, does a combination of the constitutional-behavioral rule that the “Deri-Pinchasi Law” created, and section 5 of the Basic Law: The Government, instruct the government component not to include in it, in any position, people who are under the cloud of a criminal charge?
Or does the Yoamishit believe that one should remain faithful to the old interpretation, which distinguishes between a prime minister and ministers, and allow entry into the position of prime minister or alternate prime minister even to those who are under the shadow of a criminal charge?
Does the very use of “others” and “another” in the amendment to the Basic Law: The Government, which establishes the status of an alternate Prime Minister, mean that the Prime Minister and an alternate Prime Minister are in the same category as “ministers”? – Pinhasi” are supposed to apply to them?
It is the civic duty of Ms. Beharev-Miara, not to mention her professional duty, to step out of the shadow she tends to stay in, and shed light on this fundamental and significant issue; And the sooner the better.