From Deri to Netanyahu: On the Gap between the Reasoning and Outcome of the Netanyahu Decision

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he Netanyahu Doctrine held that it was legally permissible to assign the task of forming a government to Member of Knesset Benjamin Netanyahu, despite his indictment for serious criminal offenses, including bribery, fraud, and breach of trust. The decision was surprising in that it created a stark dissonance between the reasoning and the outcome of the judgment. The Court, by majority opinion, extended the Deri-Pinhasi Doctrine to both candidates for the office of Prime Minister and to sitting Prime Ministers, yet nevertheless rejected the petitions seeking to bar Netanyahu from serving as Prime Minister.

The Gap Between the Reasoning and the Outcome

The Deri-Pinhasi Doctrine established that meeting the formal eligibility requirements for public office under statute or Basic Law does not relieve the appointing authority of its duty to exercise discretion in determining whether a candidate is suitable for office. It also emphasized the distinction between criminal and administrative law: while the presumption of innocence applies in criminal proceedings until conviction, the filing of a serious indictment obligates administrative authorities to consider dismissal, or else face a judicial order to do so. The doctrine reflects the public law principle that administrative authorities must act reasonably. In Deri-Pinhasi, the Court held that failing to remove an individual charged with serious crimes constituted extreme unreasonableness, undermining public confidence in the integrity of government. In Netanyahu, this doctrine was applied to the Prime Minister. As Chief Justice Esther Hayut stated: “The unique status of the Prime Minister does not exempt him from the fact that he holds public office. Accordingly, the foundational principles of public law—most notably, the distinction between formal eligibility and discretionary appointment—apply to his case as well.”

Nevertheless, the Court in Netanyahu reached a result that allowed a criminally indicted Knesset member to form and head a government. This outcome appears inconsistent with the logic of Deri-Pinhasi. To paraphrase Justice Yitzhak Amit’s critique in Netanyahu, if a person charged with criminal offenses is deemed unfit to serve as a water meter reader, how can that same individual be entrusted with the role of Prime Minister? The disparity has been described, half-sarcastically, as a “Chad Gadya” scenario—a layered and ironic contradiction.

This substantial gap between the Court’s reasoning and its final holding sparked sharp criticism. Deputy President of the Supreme Court (retired) Justice Elyakim Rubinstein publicly expressed regret over the judgment, stating that he found the Court’s reasoning unconvincing and deeply disappointing. Rubinstein, who was part of the original Deri-Pinhasi panel, remarked that had he or his colleagues been on the bench in Netanyahu, they would not have hesitated to reach a different conclusion. It is highly unusual—perhaps unprecedented—for a retired Supreme Court justice in Israel to issue such pointed criticism of sitting justices. Typically, retired justices defend the Court against political attacks on its legitimacy.

The Decision in Two Stages and the Misplaced Criticism of Judicial Unanimity

The Netanyahu ruling was issued in two phases. In the first, a summary judgment authored by Chief Justice Hayut was issued, joined by all eleven justices, rejecting the petitions. In the second phase, the full, reasoned opinions were published, revealing significant disagreement among the justices regarding the underlying rationale. Thus, early criticism of the Court's “single voice” was premature and misplaced. This pattern is not new: in Mizrahi Bank, the Court was also unanimous as to the outcome but divided on the reasoning. The same is true of Netanyahu.

The Absence of Administrative Discretion in Appointing or Dismissing a Prime Minister

The majority of the Court held that although Deri-Pinhasi applies both to candidates for Prime Minister and to serving Prime Ministers, Netanyahu could not be prevented from forming or leading a government. Why? The justices reasoned that the only actor exercising meaningful discretion in assigning the task of forming a government was the majority of Knesset members, pursuant to Section 10 of Basic Law: The Government. At this stage, the President’s role is largely ceremonial and devoid of substantive discretion. Similarly, the Speaker of the Knesset must convene the legislature to approve the new government and has no discretion to oppose it. The Court also held that Netanyahu himself could not be legally compelled to decline the appointment. Some justices argued that it would be unreasonable or even inhumane to require an individual to regard himself as morally unfit. Others noted that no legal precedent exists compelling a nominee to forgo such a role.

The justices emphasized that the scope of judicial review over political discretion exercised by Knesset members—particularly in choosing whom to task with forming a government—is extremely narrow. Thus, the Court declined to intervene and dismissed the petitions.

One must ask: Why did the justices declare that the Deri-Pinhasi doctrine applies if, in practice, they found no way to implement it? Why did they create a gap between the reasoning and the outcome of the judgment? Can one imagine circumstances in which the Deri-Pinhasi doctrine could genuinely apply to a candidate for Prime Minister or to a sitting Prime Minister? In truth, Deri-Pinhasi can never apply to a Prime Minister in its original form. It will always require an enhanced version—“Deri-Pinhasi on steroids,” or Deri-Pinhasi Plus—rather than a straightforward application. Some justices implicitly acknowledged this.

The reason is that Deri-Pinhasi is rooted in administrative law and in judicial review of the discretion exercised by an authorized official when deciding whether to dismiss a criminally indicted public servant. The only authority empowered to dismiss a Prime Minister is the Knesset, via a vote of no confidence. Such a vote is political in nature, not administrative. Judicial intervention in the heart of parliamentary confidence relations risks triggering new elections and constitutes interference in the most protected realm of parliamentary systems. Comparative experience illustrates the dangers of judicial intervention by unelected bodies in the core of trust relations between a parliament and a government.

The legal discourse surrounding Netanyahu focuses on Deri-Pinhasi, which led to the resignation or dismissal of a minister and deputy minister in Prime Minister Rabin’s government in 1993. However, Deri-Pinhasi dealt with the dismissal of a sitting official facing serious criminal charges, whereas Netanyahu concerned the appointment of such an individual. The relevant precedent in appointment cases is Eisenberg, decided approximately six months prior to Deri-Pinhasi, which barred the appointment of Yossi Ginossar as Director-General of the Ministry of Housing and Construction due to his involvement in the “Bus 300 affair” and the case of Izat Nafsu. These were pivotal events in Israeli legal and security history. In Eisenberg, the Court was willing to intervene and prevent an appointment due to past criminal involvement—but the appointment was administrative, and the appointee was not an elected official. This judicial intervention was more readily accepted by the public and political establishment than Deri-Pinhasi, in part due to the severity of the criminal allegations. Unsurprisingly, Eisenberg paved the way for Deri-Pinhasi and was authored by Justice Barak before the latter case.

Even in Deri-Pinhasi, the dispute was relatively narrow—focused on whether Minister Aryeh Deri had to resign upon the filing of an indictment with the Knesset (as the Attorney General argued) or only once the indictment was filed in court (as Prime Minister Rabin and Deri contended). Eisenberg cannot apply to the Prime Minister because no administrative discretion is involved in a Prime Minister’s appointment. There is no administrative authority empowered to appoint or remove the Prime Minister.

Future Paths for Judicial Intervention in the Appointment or Dismissal of a Prime Minister

What, then, was the Court trying to achieve by declaring that Deri-Pinhasi applies to a Prime Minister, even if it cannot apply in its ordinary form? It appears the Court intentionally left several future intervention paths open, signaling possible judicial engagement under more extreme conditions.

First, the Court may be willing to review the President’s decision during the initial rounds of coalition formation. If competing candidates have a comparable likelihood of forming a government, the President may be required to take into account that one of them is under indictment.

Second, some justices might consider intervening where an indictment is filed after an election but before the formation of a government—i.e., where voters did not have the opportunity to weigh the indictment when casting their ballots.

Third, some justices may have reached a different conclusion had it not been for the extraordinary circumstances of three election cycles in under two years and the concurrent COVID-19 crisis.

Fourth, the justices might treat a “designated alternate Prime Minister” differently, especially if his removal would not cause the government to fall.

Fifth, the Court might have acted differently if the indictment involved bribery in exchange for political support in forming a government, or if Knesset members were double-counted in calculating the majority needed to support a Prime Ministerial candidate.

Although the justices did not expressly state this, it is also possible that some of them would respond differently if the charges involved violent crimes committed in public, making the presumption of innocence harder to maintain in practice. Some may have been more inclined to intervene if Netanyahu had not accepted the conflict-of-interest arrangement barring him from influencing judicial appointments or the selection of the Attorney General.

The Unresolved Tension

The fact that the Court left open the possibility of future intervention—even in matters of appointing or dismissing a Prime Minister, despite the potential for triggering national elections—is what exposed the judgment to substantial criticism. Are the present circumstances not serious enough to justify intervention? If the justices accept that Deri-Pinhasi on steroids might be applicable under certain conditions, why not interpret Deri-Pinhasi now to imply a duty not to accept the role or to resign?

In other words, the legal duty not to accept the role could be imposed on the candidate himself. Such a position would be consistent with the foundational principle of administrative law that duties fall, first and foremost, upon the individual seeking office. Morally speaking, Netanyahu should not have brought the country to a situation in which the Prime Minister of Israel stands trial for serious criminal offenses.

The Inapplicability of the Deri-Pinhasi Doctrine to a Prime Minister or a Candidate for Prime Minister

As I have argued in detail in my article “Is Judicial Removal of a Prime Minister in Israel Constitutional?”, the judgment would have been more coherent and persuasive had it held explicitly that the Deri-Pinhasi doctrine does not apply to a sitting Prime Minister or a candidate for Prime Minister. This matter ought to have been left to public judgment, not public law. As already demonstrated, the doctrine cannot apply in its original form but only in an augmented version—Deri-Pinhasi on steroids. In my view, Deri-Pinhasi does not apply to a Prime Minister because the constitutional legislator expressly chose not to apply it to that office, as evidenced by the language of Section 18 of Basic Law: The Government, the Knesset deliberations on the provision, and purposive interpretation.

Section 18 permits a Prime Minister who has been convicted of an offense involving moral turpitude to remain in office until the judgment becomes final. This stands in contrast to the standards applicable to ministers under the Deri-Pinhasidoctrine. Moreover, the doctrine should not apply to a candidate for Prime Minister, as judicial intervention in the heart of the government formation process and the trust relations between the Knesset and the government differs fundamentally from all other forms of judicial oversight of public sector appointments.

Imposing a legal duty to resign or to decline the role on a candidate for Prime Minister would constitute direct judicial interference in the electoral outcome and would effectively frustrate the functioning of Israel’s parliamentary democracy. In Israel, governments rise and fall based on the identity of the Prime Minister—both as a factual matter and a legal one. Should the Court seek in the future to intervene in the appointment or removal of a Prime Minister, it would not be applying Deri-Pinhasi, but rather articulating an entirely new legal doctrine.

Should the Netanyahu Ruling Lead Us to Abandon or Reverse Deri-Pinhasi?

I do not believe that is the correct conclusion. The Deri-Pinhasi doctrine has played an important role in the fight against public corruption. I do not share the view of my colleague, Professor Yoav Dotan, who argues that Deri-Pinhasi reflects a serious judicial infringement upon the rule of law. Rather, I align with the position of President (emeritus) Professor Aharon Barak, who has argued that the common law may serve as a valid legal source for infringing upon individual rights. If the reasonableness doctrine—rooted in the common law—is constitutionally valid, then so too is Deri-Pinhasi.

Moreover, even if Professor Dotan's critique had merit at the time of Deri-Pinhasi’s inception, it is doubtful whether that critique remains persuasive today. The doctrine has since been solidified through a consistent line of case law and statutory references that affirm its foundation. The Knesset has had countless opportunities to overturn Deri-Pinhasi, but it has chosen not to do so.

The Netanyahu ruling does not undermine the validity of Deri-Pinhasi. Rather, it reveals that the Israeli system is not a pure parliamentary regime. It is a parliamentary system with quasi-presidential characteristics—namely, that the fate of the government is bound to the fate of the Prime Minister. This is a structural feature intentionally chosen by the Knesset in its capacity as the constituent authority, and it must be respected.

Suggested Citation:

From Deri to Netanyahu: On the Gap between the Reasoning and Outcome of the Netanyahu Decision, ICON-S-IL Blog, June 24, 2020.