What happened: The High Court of Justice heard a challenge to an amendment to a Basic Law, passed in March this year, that makes it harder to remove a sitting prime minister on the grounds of incapacitation.
- In an extended panel of 11 justices, the Court heard two petitions against the incapacitation amendment to Basic Law: Government which limits the authority as to who can order the Prime Minister to recuse himself.
- The previous wording of the Basic Law did not specifically detail the circumstances under which the prime minister could be declared incapacitated. Netanyahu and his supporters thus fear that this lacuna provides the court leeway to interpret the law and to rule when incapacitation can be declared and by whom, and that it might thus be used against him on the grounds that his own ongoing indictment renders him incapacitated.
- The Knesset’s lawyer, Yitzhak Bart, conceded that the amendment had been implemented to shield Netanyahu, but argued that its purpose mattered more than its intent, and that Netanyahu did not seek shielding for personal reasons, but rather to protect the office of prime minister.
- In response, Justice Ofer Grosskopf argued that: “the motives can affect the purpose. The purpose of the law was to revoke the possibility of ordering a prime minister to recuse himself due to violating a conflict of interest agreement, which is relevant to the current situation.”
- To avoid its specific application to Netanyahu, Attorney General Baharav-Miara has recommended that the amendment’s implementation be delayed until the next Knesset takes office. Such a move would allow the court to avoid the highly contentious and unprecedented step of striking down an amendment to a Basic Law.
- Netanyahu’s lawyer argued that deferring the law’s application would be “tantamount to precedent-setting and exceptional meddling” in the legislation of Basic Laws by the executive branch. Michael Rabello, a private lawyer representing Netanyahu, told the justices that it would “leave open the option of a head-on collision between the branches of government, the option of the trampling of the Knesset” by ordering the premier to recuse himself. He said such a scenario would be “a cancellation of the election results.”
- Likud ministers were heavily critical of the court. Justice Minister Levin declared that the hearing was an attempt to overturn the election results. “If the justices defer the law’s application, this will mean that a bureaucrat can assume powers that were not given him and discuss a prime minister’s incapacitation. The result will be that Israel will no longer be a democracy. The court has once again put itself above the people.” Likud Minister Miki Zohar suggested that if the court interfered in the law, millions of people who had voted for Netanyahu would take to the streets and chaos would reign. Communications Minister Karhi and Environmental Protection Minister Silman claimed the hearing was an existential threat to democracy.
Context: the government’s change to the Basic Law in March came in the context of Netanyahu’s fear that he could be declared incapacitated by the court or Attorney General.
- Netanyahu has been accused of violating a 2020 ‘conflict of interests’ agreement that he signed. That agreement allowed him to serve as prime minister despite being under indictment for corruption. In it he agreed not to be involved in the appointment of judges or changes to the judicial system, which petitioners argue he has been in the context of the government’s judicial reform programme.
- Petitioners argue that thanks to the government-passed amendment, the prime minister can advance far-reaching reaching changes in the justice system at a time when he himself is on trial and without having to fear that he will be declared incapacitated.
- In a preliminary hearing in August, Supreme Court Justice Hayut emphasised what she saw as the personal nature of the law, and asked whether that constituted “the level of misuse of constituent authority” by the Knesset.
- The amendment states that that the person authorised to declare incapacitation is the prime minister themself, with ratification by two-thirds of the members of the Knesset House Committee or backed by a decision voted for by three-quarters of the members of the government. Such a decision would be valid for three days, after which it is to be submitted to the Knesset House Committee for ratification, requiring a majority of two-thirds, and would then be valid for up to one week. Extension of incapacitation beyond this period would require a Knesset plenum vote passed by a majority of 80 Knesset members.
- The amendment also provides mechanisms for when the government can initiate a declaration of incapacitation and declares that incapacitation can be declared solely due to physical or mental incapacity.
- Any court ruling on the legislation would not have any immediate consequences on Netanyahu serving as prime minister. But it would allow the court to hear various petitions submitted requesting that it order Netanyahu to recuse himself for allegedly violating a conflict of interest agreement.
- This is the second time inside a month that the court has clashed with the government. In early September, a 15-justice panel heard a petition against the government’s “reasonableness” law which limited the courts’ power of judicial review over administrative government decisions.
- The Court has never intervened over, or annulled, a Basic Law.
Looking ahead: the court will likely publish its decision on the incapacitation amendment by mid-January.
- Supreme Court Justice Hayut is retiring in October and can weigh in on open cases for only three months after that.
- A senior coalition figure said that if the court overturns the law, the government will consider re-legislating the law with different wording.
- This hearing is the second of three crucial cases which are being heard by the court. Next month there will be a hearing on Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee.
