High Court to hear arguments on delaying incapacitation law application

Protesters rallied outside the Supreme Court of Justice building as 11 justices convened on Thursday morning to hear arguments on delaying the application of the incapacitation law until the next government. 

The hearing is the second on the March 23 incapacitation law, which altered the conditions for the procedure to have the prime minister declared unfit for service. The law clarified that the incapacitation procedure can only be activated for health reasons, and after approval by the prime minister and a series of votes by the government and Knesset Home committee.

Three justices heard on August 3 arguments on petitions to strike down the basic law amendment over claims that the legislation was motivated by an attempt to shore up Prime Minister Benjamin Netanyahu's legal position for violating his corruption trial conflict of interest agreement. On August 6 the court issued an injunction for Thursday's hearing on addressing the personal character of the law by delaying it's coming into effect.

“Is there an urgent need that requires that it come into effect now?” Asked Hayut.

Attorney-General Office representative Aner Helman said that the law should be delayed due to how egregiously personal it was. Movement for Quality Government in Israel head Dr. Eliad Shraga said that he wasn't against the delay of the law's application rather than striking it, but only if it is until Netanyahu’s  conflict of interest agreement ends with a corruption trial ruling.

Netanyahu lawyer Michael Rabello argued that delaying the law was an undemocratic move that would create a condition of legal uncertainty about incapacitation. He argued that the court had no authority to engage in judicial review of the quasi-constitutional basic laws. This included interpretation of basic laws like delayed application. Justice Ofer Grosskopf dismissed this, saying that the court's ability to interpret laws isn't really in question. 

Knesset legal representative Yitzhak Bart said that the threshold for judicial review of the law was not being met, in particular regarding it being political, as "in past cases, political considerations have not been enough to strike down a basic law." Not just cancellation, but interpretation of basic laws should only occur in extreme cases. Court Vice-President Uzi Vogelman said the path of legal interpretation has certainly been pursued before on Basic Laws of a personal character.

Personal or political?

Under questioning from Justice Alex Stein, Bart admitted that part of the motivation for the law was likely personal or political, but the status of the government is a personal and political matter for the MKs that voted for the legislation. He said that there is no way to be completely certain why they voted, as MKs have a wide variety of interests, and their job is politics and implementing their ideologies.

Justice Daphne Barak-Erez said that Bart was arguing that there was no such thing as a personal law even when there is a personal law. Helman said that they "all agree that it is personal and also political." Helman repeatedly made arguments to the sanctity of the basic laws, and how the law was unacceptable as a matter of principle. Yisrael Beytenu MK Oded Forer’s representative Uri Haberman said that the law was part of a trend of personal basic laws, which the court had to put a stop to there. Sohlberg expressed reservations about the MK’s petition, saying that they should have turned to the Knesset plenum instead. 

Bart further argued by saying that the legislation’s purpose was to fill a lacuna in the law. Helman denied that it was about filling a gap in the law, but about acting out of fear over "rumors" that Netanyahu would be declared unfit for service. Grosskopf said that the purpose of the law was to make it difficult to activate incapacitation procedures.

Grosskopf questioned Bart if it was acceptable for the government to change the rules of the game for itself during play. Bart argued that unlike legislation like the Tiberias Law, this law was not retrospective but forward looking. Shraga attempted to claim that the law was retroactive because it affected Netanyahu's past alleged crimes.

Bart tried to refer to the basic law amendment that allowed alternating prime ministers as an example of changing the rule during play, but Hayut reminded him that the law was severely criticized by the court. Helping Bart, Justice David Mintz suggested that while the law does enter the books immediately, the effect isn’t immediately in play because it is only activated at a later date when the prime minister is ill. 

Hayut noted that when the law was activated when the prime minister was recently hospitalized, the procedure itself didn’t stand up to muster since the government couldn’t activate it in time and had to do so retroactively. The petitioners said that this demonstrated that the law was defective.

As with the previous hearing, the justices seemed unconvinced that the law had an actual impact on Netanyahu's conflict of interest agreement, because as Rabello argued, the COI deal wasn't impacted or even mentioned in the law. Justice Noam Sohlberg also prodded Helman, demanding to know, since there was no actual harm in this way, "why delay the law if it isn't so terrible?" 

Netanyahu has been subject to the conditions of a conflict of interest agreement since 2020, limiting some of his prime ministerial powers to prevent fear that he may influence his ongoing corruption trial. This included limiting his role in appointing law enforcement, judicial, and prosecution officials who could impact the trial.

The judicial reform, which was announced in January, included changes to the rules and composition of the Judicial Selection Committee. Shraga expressed fear that political judges could preside over a corruption trial appeal. He said that Netanyahu was already seeking to change the panel.

Following reports that the attorney-general sought the ousting of Netanyahu through the incapacitation procedure, the coalition began the legislation of the new law, the petitioners said. This was seen as an effort to free himself from perceived consequences of violating the agreement. Rabello argued that the timeline was brought into doubt because the draft law was submitted in January before the Attorney-General's Office had issued a February 1 letter informing Netanyahu that the conflict of interest agreement prevented him from being involved in the reform. When Netanyahu announced his involvement in the reform after the bill's passing, he never explicitly said that he was going to alter his agreement or influence his trial. Helman argued that Netanyahu had "come alive" for the reform directly after the passing of incapacitation law. Hayut questioned why Netanyahu would seek a basic law, rather than trying to change the conflict of interest agreement directly. 

Helman said that the Attorney-General has never had the authority to declare incapacitation of an Israeli leader, and the power has always been in the hands of the government. Helman did say, however, that it was possible for the prime minister to be incapacitated over criminal proceedings. Shraga contended that if Netanyahu continued to violate his agreement, he could be incapacitated by the attorney-general. 

While at times there was heated debate, the hearing was not as dramatic as some outlets advertised. Yisrael Beytenu MK Yulia Malinovsky interrupted once to correct Rabello, but was scolded by Hayut. Likud MK Tally Gottliv railed against the hearing just before it began, but sat quietly during the session. Outside, protesters waved banners in favor of judicial reform and warning the Supreme Court that they were violating the will of the electorate. 

"Esther, you're not a queen," said one sign.