Israel’s Top Court Says Law to Get Around PM’s Incapacitation Is ‘Personal’ in Nature

Israel’s Supreme Court is hearing petitions filed against an amendment to the Basic Law on the Government that is meant to prevent Prime Minister Benjamin Netanyahu from being declared incapacitated.

The Knesset approved the amendment in March by a vote of 61 to 47 – the minimum majority required to pass an amendment to the Basic Law on Government.

High Court President Esther Hayut and Justices Isaac Amit and Uzi Vogelman are overseeing the arguments, which are broadcast live on Israeli television.

During the arguments, protesters gathered outside the High Court to express their opposition to the law.

The petitions submitted by the Movement for Quality Government in Israel and the Yisrael Beiteinu party argue that the law was designed for a specific person and “undermines the rule of law in Israel,” and that “its adoption is another transition into a dictatorship.”

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The petition further claims that the immediate enactment of the law will create “a new and dangerous precedent, in which the person possessing the premiership can change constitutional arrangements as convenient given the majority he has to hand.”

As the hearing went underway, attorney Eliad Shraga – representing the Movement for Quality Government in Israel – argued that the incapacitation law was just one part of the wider judicial overhaul legislation that the government is attempting to pass. "Netanyahu has decided to carry out a governmental coup in Israel," Shraga stated.

"He [Netanyahu] has decided to crush the judiciary; he's decided to dismantle the rule of law enforcement system; he's decided to dismantle the institution of the Attorney General, he's decided to dismantle the prosecutor's office, the police and all the gatekeepers [of Israeli democracy], starting with the Governor of the Bank of Israel and ending with the chairman of the Government Corporations Authority. He wants to turn us into a dictatorial border state."

Attorney Aner Helman, counsel for the attorney general, claimed that "we are in 1984," a reference to the dystopian science fiction novel by George Orwell. "There is a pattern of action in the incapacitation law that undermines the rule of law," he continued.

Helman justified this claim by saying that the Knesset, in its capacity as the constitutional authority, "has become a kind of resource for personal measures and for removing the prime minister's problems, and his duty not to act in conflict of interest."

He then quoted Netanyahu, who said a few hours after the law was originally passed in the Knesset that "until now, my hands were tied." This, he said, was important evidence to the personal nature of the law, since Netanyahu himself admitted that until the law was enacted he was not able to be involved in the judicial overhaul.

Chief Justice Esther Hayut, responding to Helman, said that "the fingerprints are very very clear," to which Justice Vogelman added that "with regard to the personal motive – the situation is clear." Vogelman then said with regard to the possibility that the law would not be annulled but only take effect starting from the next Knesset, that while the law would still be "bad," it would "would neutralize its personal aspect."

Ahead of the start of the hearing, several far-right coalition lawmakers said they may not respect the court's ruling in case it decides to annul the law.

Speaking to Israeli media, Jerusalem Affairs and Heritage Minister Amichai Eliyahu defied the very legitimacy of the court's ability to nullify basic laws. "We don't need to respect the court's decision just like it doesn't respect Knesset's decisions," he said.

National Missions Minister Orit Strock said in a radio interview to Ynet News that "if the law is disqualified, it would mean that the Supreme Court is throwing itself off a cliff, because it is basically saying 'friends, forget about democracy.'"

Responding to Strock and Eliyahu, Opposition leader Yair Lapid responded on social media, writing, "A minister who says that they won't accept a Supreme Court ruling cannot continue to serve as a minister for even one minute. A government that will not obey the law and the court is an illegal government."

National Unity Party leader Benny Gantz also chimed in, posting on social media that "the responsibility lies with the prime minister." He continued: "If the government does not respect a court ruling – Israel will not be a democracy."

Transportation Minister Miri Regev shared her opinion on the court hearing, saying that "Today we'll know if three judges are recusing Israel's democracy."

In a closed talk reported by national broadcaster Kan, Religious Zionism MK Simcha Rothman – the chairman of the Knesset Constitution, Law and Justice Committee and one of the primary architects of the government’s judicial overhaul – asserted that striking down the law would be a significant breach which would destroy public faith in the nation’s highest court.

The amendment to the Basic Law is intended to prevent a situation in which Attorney General Gali Baharv-Miara could declare Netanyahu unfit to perform his duties as prime minister over a conflict of interest due to the ongoing criminal proceedings against him.

The bill, submitted by coalition chairman Ofir Katz, states that only the cabinet can declare a prime minister unfit or incapacitated by a two-thirds majority, and that in some cases such a declaration would require approval by a majority of 90 lawmakers. Moreover, a declaration of incapacitation would apply to incompetence for health reasons only.

Last Tuesday, Baharav-Miara told the High Court that she believed the amendment to the Basic Law should be revoked, stating that “there was an improper use of the Knesset’s authority to improve the PM’s personal situation and allow him to operate in defiance of the court’s decision.” She concluded that there is a need for a “conditional order instructing the Knesset and the prime minister to clarify before the court why they believe the law should not be revoked.”

Baharav-Miara recently told officials at the Justice Ministry that declaring Prime Minister Benjamin Netanyahu unfit for office is not on the table at this stage.