Legislation that is difficult but necessary
It should have been clear that a criminal defendant could not form a government, but in the absence of agreement on many of the rules of the political game, the "Defendant Law" will be at the very least a message of correction to the public and a chilling effect on the leadership.
Apparently, what could be clearer than the fact that a candidate to form a government who is a criminal defendant, especially in areas related to running the country, should not get anywhere near power? They should not run for the position of Prime Minister, and certainly not for the position of a minister.
However, Israel is not like all Western democratic countries, and this was true even before the legal-regime revolution began. What is known in England as an ethical governing tradition — "It's not done" — does not exist at all in our governing culture. In England, for example, a minister resigned from her position after she held a large party during the coronavirus pandemic in violation of guidelines. Here, issues of ethics, what is appropriate and what is not, what is reasonable and what is not, have become a subject for discussions on television commentary panels, and it is evident that they are constantly undergoing erosion. Everything is examined under the question of whether it is legal or not, and even on this there is disagreement.
The lack of agreement on many of the rules of the game in the political sphere, which is only intensified due to cultural, political, ethnic problems, populism, and incitement, has contributed to the fact that in the last 50 years the Supreme Court has entered, both intentionally and against its will, and made "order" in what is appropriate and what is not, what is legal and what is not, and set precedents. Some of them — for example, its decision in the Deri-Pinhasi High Court of Justice case, according to which it is unreasonable for a minister against whom an indictment has been filed for crimes involving moral turpitude to continue in office — still serve today as oil on the fire of incitement against the High Court of Justice with the argument: "Who are the High Court judges to decide for us? What is important is the will of the people."
All this, of course, challenged the High Court of Justice, which on the eve of the government's formation faced a fateful decision: whether to allow Benjamin Netanyahu, a defendant in white-collar crimes, primarily bribery, to serve as Prime Minister. The High Court decided unanimously in a ruling known as "11:0", which is still disputed today, that the "letter of the law" does not prevent the elected Prime Minister from serving. The Supreme Court did not want to enter the constitutional holy of holies of the right to vote and be elected, and to decide on the most political issue in the country.
Against the background of these things, the High Court had already called in 2020 to "regulate for the future with appropriate legislation the issue concerning the assignment of the task of forming a government to a Knesset member accused of serious crimes involving moral turpitude." The High Court, on the eve of the government's formation, in its innocence or its failure, rolled the regulation of the value-practical problem inherent in the functioning of a Prime Minister-defendant to the doorstep of the legal system and to the doorstep of Netanyahu. The expectation was that the Prime Minister would exercise common sense and integrity, and that they would guide him not to act in a conflict of interest in his governmental and legal decisions during his trial.
All this, of course, did not happen, but the opposite. Instead of imposing restraint on himself and his associates, the Netanyahu government went on a multi-front attack on the rule of law and democracy. For the hard core on the right, this was an opportunity to take revenge on the rule of law; for Netanyahu's associates, there was an opportunity to bring about chaos in order to try to disrupt and stop his trial.
So, in the absence of a governing tradition, a Knesset that oversees the government, and above all the Gaza-North-Iran war, we reached the elections. Just as the opposition parties are announcing the establishment of a state commission of inquiry to investigate the failure, the "Defendant Law" is now being raised to the top of the agenda. The good solution would have been the logical solution — there is no need for a law. But until the Messiah comes, it is necessary to legislate alongside the cancellation of the regime revolution laws the "Defendant Law". This will not only be important legislation, it will be a message of correction to the public and a kind of symbol of change and a chilling effect on the leadership.
It is a law that is difficult to legislate, and we will see if the MKs reach agreements on its challenging clauses: at what legal stage can a person not run, what crimes are involved, who will decide on the stage at which the law will prevent a person from running? It is also possible that during the legislation, the problematic idea of legislating the "French Law" will also be raised, the law that freezes proceedings against a Prime Minister who has committed a wrong during his tenure until the end of his term. What is certain is that the experience of the last four years of a Prime Minister in general and Netanyahu in particular who is conducting a trial in parallel, was terrible.
