Knesset abused power to help Netanyahu, A-G charges in High Court letter

The passing of the Incapacitation Law in March abused the Knesset's constitutional authority to improve Prime Minister Benjamin Netanyahu's personal legal situation, Attorney-General Gali Baharav-Miara said on Tuesday in an official response to petitions against the law. 

In direct opposition to the Attorney-General's Office, the Knesset Legal Advisor issued its own opinion calling to reject the petitions, and that the amendment to the Basic Law: The Government filled a gap in the law that applied generally to all prime ministers.

This would be the first time that the Attorney-General would sanction the striking down of a Basic Law, the original petitioner, the Movement for Quality Government in Israel (MQG) said.

The March 23 Incapacitation Law amended Basic Law: The Government to clarify that a sitting prime minister could only be removed from office if he or she was declared physically or mentally unfit. The prime minister can announce this himself, after which the Knesset Home Committee must approve the incapacitation with a two-thirds majority of the committee's members.

The Attorney-General's Office argued that Netanyahu and his supporters had promoted the bill so that he did not feel under threat of being deposed because of involvement in the judicial reform despite his corruption trial conflict of interest agreement. The same day after the bill passed, Netanyahu announced that he was involving himself in judicial reform.

Baharav-Miara had warned Netanyahu on February 1 that his still active conflict of interest agreement prevented him from involvement in the judicial reform, as part of the effort would see changes in the composition and rules of the Judicial Selection Committee.

Netanyahu's conflict of interest

The 2020 conflict of interest agreement organized by Baharav-Miara's predecessor Avichai Mandelblit conditioned his formation of a government with restrictions on involvement in the selection of judges, law enforcement, and legal officials that could influence his three ongoing corruption trials. Baharav-Miara warned Netanyahu again after his March 23 speech that he was acting in violation of the agreement. 

In the Tuesday opinion on the petition filed by MQG just after the incapacitation law passed, the Attorney-General explained that the law went against the fabric of constitutional norms.

The Knesset is supposed to develop and pass general constitutional laws that enumerate the powers, structure and rules as part of the ongoing constitutional process. These "rules of the game" are established in Israel's quasi-constitutional Basic Laws. The Attorney-General argued that the Incapacitation Law was passed for personal benefit, not to establish fundamental constitutional doctrine. 

Baharav-Miara said that the use of the Basic Laws for personal and political needs was part of a trend in the cheapening of the quasi-constitutional legislation, as the High Court itself had identified when it on January 18 declined to rule on the amendment to Basic Law: The Government, which allowed Shas Chairman Arye Deri to assume ministerial positions. It had not struck the Basic Law, instead ruling largely on a reasonableness standard. 

The court had said in response to the so-called "Deri Law" that it could only strike down a Basic Law in the most extreme of situations. The Attorney-General said the abuse of constitutional authority in the passing of the incapacitation law was extreme enough to warrant striking the Basic Law amendment. 

An ironic coincidence occurred on Tuesday that highlighted another problem with the bill.

The government on Saturday voted in a phone conference to declare Netanyahu incapacitated due a pacemaker insertion procedure. The ministers named Levin as acting prime minister. However, opposition Knesset members pointed out in a Knesset Home Committee session on Tuesday that the government's decision had been illegal, because it had not been put to a vote in the Knesset.

Home Committee chairman MK Ofir Katz (Likud) proceeded to propose a vote to approve the government's decision retroactively. This requires a two-thirds majority in the committee. The opposition MKs, which make up more than a third of the committee, said it would vote against the decision, and the vote was postponed until Sunday. In the meantime, as National Unity MK Ze'ev Elkin pointed out, Levin had not been elected legally – and therefore, while Netanyahu was undergoing the procedure, Israel did not have a prime minister.  

Opposition MKs highlighted this issue and said it was an example of what happens when legislation is rammed through the Knesset without undergoing proper procedure.

The Knesset Legal Advisor said on Tuesday that there is no room for judicial review of basic laws. The doctrine of abuse of constitutional authority was applied in the past when the Basic Laws had a temporary effect, which was not the case with the permanent and generally applying incapacitation law.

The law was intended to regulate the approach to how a prime minister was declared incapacitated, the legal advisor said, something that the previous iteration of the basic law did not elaborate on. The incapacitation law did not constitute a violation of constitutional authority, as it properly established the boundaries for the officeholders. 

In line with this, as the law would apply to all future prime ministers, the Knesset legal advisor said that the amendment was not personal. In regards to the conflict of interest, it was argued that the law doesn't change how Netanyahu is beholden to his conflict of interest agreement, and even if it did doesn't apply retroactively. 

MQG head Dr. Eliad Shraga said that Baharav-Miara showed that "the rule of law also rules the government and that in a democratic country, there are checks and balances between the authorities and therefore the anti-democratic legislation will be rejected at the gates of the High Court."

Other petitions have also been filed against Netanyahu’s alleged violation of his conflict of interest agreement. On July 13 the High Court agreed to hear one such petition calling for Netanyahu’s ousting, later setting a hearing date for September.