Declaring a PM 'incapacitated' will require 90 MKs' approval, coalition proposes

Coalition Whip Likud MK Ofir Katz along with faction leaders of all of the coalition parties proposed a law on Sunday that would limit Israel's Attorney General's ability to announce a prime minister "incapacitated" to cases in which the prime minister is "physically or mentally" incapable of fulfilling his role.

The bill is the coalition's response to the High Court of Justice's directive on February 10, that Attorney-General Gali Baharav-Miara responds within a month to an appeal by the Movement of Quality Government in Israel that she declare Prime Minister Benjamin Netanyahu incapable of serving in the position, due to conflicts of interest between the government's proposed judicial reforms and his ongoing criminal trials.

The new bill would remove the attorney general's authority to make such a declaration, and therefore make the appeal irrelevant.

The bill's stated purpose according to a statement is to "prevent taking advantage of the current law in order to thwart the will of the voter," and it will "increase certainty and stability."

Reflecting on current policies in place

The current law actually does not allow for a declaration of incapacitation in cases that are not directly connected to physical or mental impairment – and the bill is merely meant to clarify this, according to the statement.

In addition, the only bodies who will be able to announce the prime minister is incapacitated against his wishes if he is physically and mentally capable of fulfilling his job is the Knesset, with a majority of at least 90 Knesset members.

"We are clarifying today what any reasonable person understands alone with regard to the existing law. The people and their representatives appoint the prime minister, and only the people and their representatives may change this choice," Katz said in the statement.

National Unity chair MK Benny Gantz said in response, "Instead of stopping and talking – Netanyahu and his people continue to distribute road bombs against Israeli democracy. His and his coalition's attempts to agitate and incite the discourse over the incapacity [declaration] that is not even on the agenda, strengthens their purpose to prevent dialogue and continue gnawing at Israeli democracy. Facing this we will continue to fight until we halt the coup d'etat."

The Movement for Quality Government argued in response that demanding that 90 Knesset members support such a move effectively means that it will never happen.

"Preventing the declaration of a prime minister as being incapacitated, as the coalition is now proposing, will enable Netanyahu to continue destroying Israeli democracy in order to escape from the power of the law, and this must not be allowed!" the movement said.

Simcha Rothman attacks attorney-general

Religious Zionist Party MK Simcha Rothman attacked Attorney-General Gali Baharav-Miara and her office during Sunday’s Knesset Constitution, Law and Justice Committee meeting, saying they were biased and manipulating the public’s opinion of the proposed judicial reforms.

Committee chairman Rothman made the statement as he berated Deputy Attorney-General Avital Sompolinsky after she answered a question on judge selection and override clauses by explaining how characteristics in the systems of other countries hindered comparison.

“An attorney-general who delays a legislative memorandum on the grounds that she has to do an international comparative review, and sends you to mislead the public, shows the problematic nature of the Knesset very well,” said Rothman. “In any country with a parliamentary system, when a representative of the government would arrive without the government’s consent and present a completely biased position, and when they ask them a yes-or-no question about a review he presented, they open with a five-minute speech and don’t answer it, saying, ‘You are doing a good job in representing the attorney-general,’ but the fact is that Baharav-Miara presents such a biased position that constitutes manipulation of public opinion.”

The Attorney-General's Office issued a statement regarding Rothman's comments, saying that legal advisers "are dedicated public servants who perform their duties professionally and matter-of-factly, among other things, in the debates held in the government and the Knesset.

The legal advice to the government will continue to fulfill its role, despite attempts to silence and baseless accusations."

Hadash MK Ofer Cassif chastised Rothman for speaking disrespectfully to Sompolinsky.

“You humiliate and treat her in an aggressive way when you know she can’t fight back,” he said.

Former Hebrew University of Jerusalem Law Faculty dean Prof. Mordechai Kremnitzer also chided Rothman, saying such disrespect from a committee chairman to a legal adviser isn’t tolerated in other Western democracies.

“There is no such thing as a professional receiving such a form of treatment here. It’s insulting, humiliating and shameful,” said Kremnitzer.

In the past, he added, he would teach his law students that serving the state was more important than money. However, after Sunday’s session, he said, he would have told them to stay away from such humiliating service.

High Court of Justice President Esther Hayut was also criticized during the committee meeting for creating divisions in the public.

Likud MK Tali Gottlieb said, “The president of the High Court, with all due respect, scares the public from the legislature and creates a wedge between us.... This is something that is unimaginable.”

Gottlieb argued that the High Court had far too much power over what should be a more democratic system. The justices, she argued, struck down legislation because they believed they knew better than elected officials.

Kohelet Forum’s Ariella Segal argued, “Sometimes we forget that we are in a unique situation in the world. For many years we have been operating within a governmental anomaly: we do not have a constitution, but the court strikes down legislation as if we had one.”

The comparisons to other legal systems were brought up during debate on a draft committee bill that is part of the proposed judicial reforms.

The bill would restrict judicial review to situations in which an extended bench of justices was assembled and unanimously agreed that a law contradicted a Basic Law. The bill would also introduce a preemptive override clause, which would prevent the High Court from reviewing legislation that isn’t part of a Basic Law.