The “Defendant Law” Can Be Applied Only After the Next Election

What Is Proposed to Change

Currently, the President of the State of Israel may, after consulting with the Knesset factions, assign the task of forming a government to any of the 120 members of Knesset. The proposed amendment would restrict this authority: a member of Knesset against whom an indictment for serious offenses is pending would not be able to receive such a mandate. It is proposed that the standard for the seriousness of the offenses be tied to the 1993 Deri–Pinhasi ruling, so that the prohibition would not apply to minor or technical offenses.

Why Immediate Application Is Controversial

This constitutes a substantive change to the rules for forming a government and to the scope of the president’s powers. In a July 2021 ruling concerning the rotation government, Justice Hanan Melcer stated that significant changes to constitutional rules should apply prospectively and that election results should not be changed after elections have taken place. Therefore, in the analysis author’s view, the new Knesset may approve the amendment, but its application should be postponed until the election following its enactment.

What the High Court of Justice Previously Ruled

In May 2020, the High Court of Justice unanimously ruled, in an 11-justice panel, that existing law does not prevent assigning the task of forming a government to a member of Knesset accused of serious offenses, if the balance of power in the Knesset allows it. The new law is intended to change precisely this rule. However, the source does not state the case number and does not report that the law has already been introduced or enacted.

Can the Court Intervene?

It cannot be determined with certainty that the High Court of Justice would strike down the amendment if the Knesset stipulates that it applies immediately. As a precedent, the source cites the provision concerning a prime minister’s incapacity: the court postponed its entry into force until the next Knesset. However, judicial intervention in amendments to Basic Laws is considered an extremely rare step and is not guaranteed.

The Political Implications of the Delay

Even a provision whose application is deferred may affect political calculations. If the law is enacted at the beginning of the Knesset’s term but is implemented only after the next election, the possibility of another vote could deny Benjamin Netanyahu the ability to receive the mandate again as long as the criminal proceedings against him continue. According to the author’s assessment, this could reduce the interest in prolonging an extended political deadlock, but this effect remains speculative.

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