High Court to discuss Netanyahu's Incapacitation Law after A-G attack

Petitions against the incapacitation law will be heard by the High Court of Justice on Thursday, August 3, the court decided on Tuesday, a week after the Attorney-General's Office had sanctioned the legislation's cancellation.

High Court President Esther Hayut, Vice President Uzi Vogelman, and Justice Yitzhak Amit will preside over the hearing in which arguments will be made about the Basic Law: The Government amendment that established that the prime minister can only be considered unfit for service for health reasons, and only after the government's approval and a series of votes by the government.

The two petitions were filed by NGOs and Yisrael Beytenu MK Oded Forer.

Last Tuesday Attorney-General Gali Baharav-Miara issued an opinion calling for the striking down of the law, the first time the Attorney-General had sanctioned the striking of a Basic Law amendment, according to one of the petitioners, the Movement for Quality Government in Israel.

The A-G's opinion

Baharav-Miara said in an opinion that the Knesset had abused its constitutional authority in passing the law on March 23, as the amendment was introduced allegedly to improve Prime Minister Benjamin Netanyahu's legal situation with violations of his corruption trial conflict of interest agreements.

MQG head Eliad Shraga said Tuesday that "Netanyahu and his coalition of corrupt people are trying to make every possible change in the structure of the State of Israel’s system in their attempts to escape the threat of judgment. In their arrogance they are convinced that the rule of law does not apply to them.”

Netanyahu has three ongoing corruption trials, and in 2020 his formation of a government was conditioned on a conflict of interest agreement that restricted him, among other powers, from involving himself in the appointments of judges, law enforcement and legal officials. This was designed to abate concerns that Netanyahu-supported officials could interfere in his trials.

Despite the Attorney-General's warnings at the beginning of the year that his agreement was still in effect and that involving himself in the judicial reform would constitute a violation of his deal, Netanyahu on March 23 announced in a speech that he would indeed be taking the reins of the reform -- allegedly feeling immunized from being removed from office by the incapacitation law over his conflict of interest.

The Attorney-General sent Netanyahu a letter on March 24 warning him that his speech was a violation of the agreement.

Baharav-Miara also said that the incapacitation law was against constitutional norms, having been passed for immediate personal and political benefit. Basic Laws, she argued, are supposed to establish the powers, structures, and rules of the state. There was an emerging trend using the quasi-constitutional Basic Laws for such political purposes, cheapening their purpose.

Knesset legal adviser Yitzhak Beret also issued an opinion last Tuesday, arguing that the amendment filled a lacuna in the law by regulating the terms of incapacitation for a prime minister. It was not personal or abused constitutional authority, as it established general boundaries for all future prime ministers.

Beret had also argued that the judiciary had no authority to engage in judicial review of basic laws. The court has never before struck down a basic law amendment, and as the power to do so is debated, there is concern about a constitutional crisis.

The court is set to hear arguments against another basic law amendment on September 12, with a historic expanded bench of all 15 justices. This displaced another hearing on Netanyahu's violation of his conflict of interest agreement, which was originally set for that day.