High Court set for pivotal hearing on Netanyahu's Incapacitation Law

The High Court of Justice is set to hear arguments on the striking down of the Incapacitation Law on Thursday morning, a Basic Law amendment enshrouded in controversy due to a tangled saga of political and legal issues for Prime Minister Benjamin Netanyahu. 

The hearing time was changed to 10 a.m., 30 minutes earlier than originally scheduled, on Wednesday evening.

High Court President Esther Hayut, Vice President Uzi Vogelman, and Justice Yitzhak Amit will preside over the hearing of two petitions by NGOs and opposition politicians arguing that personal legal considerations guided the passing of the March 23 amendment to Basic Law: The Government that established additional terms for determining a prime minister incapacitated and unfit for office. 

The law clarified the older provision for a premiership's status as incapacitated, elaborating that the prime minister can only be declared unfit for physical or mental health reasons. The prime minister must acquiesce to the implementation of the clause, after which the Knesset Home Committee must approve its activation with a two-thirds majority vote. If the prime minister did not or is unable to agree to the application of incapacitation, it can be forced with the approval of a three-quarters majority of the government, followed by a vote by the Home Committee.

What do supporters, opponents of the Incapacitation Law say?

Petitioners, critics, and even Attorney-General Gali Baharav-Miara have called for the striking of the legislation and attacked the law as being an abuse of the Knesset's constitutional authority, introduced to improve Netanyahu's legal situation in relation to violations of his corruption trial conflict of interest agreement. 

Likud MK Tally Gotliv jabbed at the attorney-general on Twitter on Wednesday evening for her position against the law.

"We did not imagine that the attorney-general would need us to clarify in the legislation the intention of the legislator that prime minister incapacitations are only for health reasons," wrote Gotliv. "The clarification obliges you. There is nothing personal about this to Netanyahu."

 Netanyahu faces three cases, Case 1000, Case 2000, and Case 4000, alleging different forms of corruption including bribery and breach of trust. In 2020, Netanyahu's forming of a government was conditioned on a conflict of interest agreement that would restrict some powers to assuage concerns over interference in his trial. This was affirmed by High Court rulings in 2021. One component of the agreement limited Netanyahu's ability to involve himself in the appointments of law enforcement, legal officials, and judges, who could influence the trial.

In early 2023, after Netanyahu secured a new coalition government in late 2022, Baharav-Miara notified Netanyahu that the conflict of interest, which had been organized by her predecessor Avichai Mandelblit, was still in effect and applied to involvement in the judicial reform. 

The judicial reform, a flagship legal overhaul of the Israeli judicial branch, was announced by Justice Minister Yariv Levin on January 4. The reform proposal had several provisions, but perhaps the most important, and the first advanced by the coalition, was on the Judicial Selection Committee. The panel is responsible for the appointment and promotion of judges. The bill on the Judicial Selection Committee was advanced until the end of March, when it was frozen by Netanyahu in response to unprecedented protests. 

The Movement for Quality Government in Israel, one of the petitioners, also noted that Netanyahu's coalition had been making significant changes to the Israeli Police through the Police Law. These changes would have the police subservient to the National Security Ministry, and allow for the national security minister to establish policy and guidelines for law enforcement. The High Court issued an injunction against the law on June 18 after a June 7 hearing in which petitioners argued that National Security Minister Itamar Ben-Gvir had used the law to issue direct orders and exert a high degree of control over the force.

Rumors abound in Israeli media in late January that the attorney-general was considering using the previous iteration of incapacitation to declare Netanyahu unfit to serve due to his conflict of interest and the judicial reform, though this had dubious legal grounding. NGOs also petitioned the High Court calling for his incapacitation by the same line of reasoning in February, but these were rejected. 

On March 23, the Incapacitation Law was changed, and on the same day, Netanyahu made a speech announcing that while he had been limited prior, he would now be more involved in judicial reform. Netanyahu had made relatively few direct public statements on the judicial reform content prior.

On March 24, the attorney-general sent a letter to Netanyahu warning him that he was violating his conflict of interest agreement. The attorney-general argued in a July 25 opinion filed to the court that Netanyahu's government had passed the law because he felt threatened by the previous iteration of incapacitation. Knesset Legal Adviser Yizhak Beret argued the same day that regardless of Netanyahu's impression of the provision, there was no evident legal connection between his conflict of interest agreement and the incapacitation procedure. 

The attorney-general, for the first time, sanctioned the striking of a Basic Law amendment in her opinion. Baharav-Miara and the petitioners argued that this alleged legislative personal interest seeking cheapened and abused the basic laws in an ongoing trend of abuses. The law went against the fabric of constitutional norms since it "changed the rules of the game in play" for immediate personal benefit instead of continuing the constitutional process of establishing the structure, powers, and rules of the state. Beret has argued that the law was not personal or against constitutional norms, as it clarified an existing gap in the law and would apply to all future prime ministers.

Eliav Breuer contributed to this report.