CONSTITUTIONAL CRISIS IN ISRAEL: EXPERT PERSPECTIVE

Partner and Head of International Department at ENR Law, Adv. Maxim Rakov, provides expert commentary on current constitutional law issues in an interview on the “Details” program on Israel’s Radio 1.

On the Separation of Powers Conflict and Minister Ben-Gvir’s Case

— How should we perceive calls to the Prime Minister to preemptively reject a potential High Court decision that has not yet been made?

— From a legal perspective, this marks the beginning of a constitutional crisis. A constitutional crisis occurs when different branches of government fail to act in coordination and instead fight each other. Each encroaches on the powers of others, which can ultimately lead to chaos.

The very fact that the High Court is addressing the dismissal of Minister Ben-Gvir is problematic. This is an extremely political matter. Ben-Gvir is an elected official chosen by a certain number of voters during elections. His potential removal is not based on criminal charges but on certain actions through which he claims to be implementing his policy.

The question is: where do we draw the line? Today they remove Ben-Gvir for interfering in police operations. Tomorrow — some other minister for initiating legislative reform.

It would be more logical if the court’s decision stated that due to the illegality of Ben-Gvir’s actions, officials — such as the Inspector General of Police and other functionaries — have no authority to act on his instructions. There is a difference between declaring actions illegal and dismissing the minister himself.

— Can the High Court of Justice avoid a constitutional crisis?

— The court could say: “I will not make a decision, I will reject the petition because I believe I should not rule on this matter. We have elections in six months — let the people have their say.” This is logical. It’s called institutional non-justiciability, and the court can adopt such a position.

The Supreme Court is severely overburdened, partly because not all vacancies are filled. Let it focus on other equally important matters. I do not believe the decision regarding Ben-Gvir is the most important issue on the Supreme Court’s agenda.

On the Bill to Abolish the Breach of Trust Provision

— What are your thoughts on the bill that would eliminate fraud and breach of trust as criminal offenses?

— There are problems with the definition of this offense — it is insufficiently clear and gives considerable room for interpretation by prosecutors and courts. It probably needs to be reformed. But reform does not mean abolition.

What does abolition mean? That a public official can do whatever they want? If it’s not bribery or theft, then anything goes?

Public officials are appointed or elected to act for the benefit of the people, the country, and public interests — not for their personal benefit. Do we want our officials and elected representatives to act for their personal gain?

I believe abolishing this is wrong. And it is especially wrong to abolish it while the Prime Minister is on trial. This trial is a significant element of his future and current political career. Abolition means that all cases filed under this provision would automatically be terminated.

So essentially, in order for the coalition to remain in power, it is changing criminal legislation and eliminating a criminal provision that has existed for decades.

On the Legality of Yeshiva Student Arrests

— Knesset Member Moshe Saada stated that the arrests of yeshiva students are illegal and that he “feels as if he is in a period of religious persecution.” Are these arrests legal?

— Of course they are legal. There are provisions in criminal law under which individuals are suspected of violations. There are arrest powers, just as with any other provisions.

Saada in this situation is making a political declaration — either to undermine the government’s legal adviser or to please the ultra-religious community. He is not an authorized interpreter of the law.