Israeli minister: High Court breaking the law with PM incapacity hearing

Heritage Minister Amichai Eliyahu of Otzma Yehudit said on Thursday that if the High Court of Justice struck down the Incapacitation Law, the government will not respect the ruling.

"They do not respect the sovereignty of the people," he said. "The High Court is breaking the law… we will have to ask ourselves how we deal with lawbreakers in suits."

A number of members from the coalition have already spoken out against the potential of it being struck down with National Missions Minister Orit Struck from the Religious Zionism Party telling Ynet that "If the High Court rejects the Incapacitation Law, it is leading itself in a mad dash to the abyss. It will have an even greater impact on our duty to reform the judicial system."

Transportation Minister Miri Regev added on Twitter that, “Today we will know if three judges will throw away democracy in Israel.”

This comes as Prime Minister Benjamin Netanyahu has yet to publicly confirm that he will respect High Court decisions during his runs on American television.

Opposition leader Yair Lapid tweeted in response to Eliyahu on Thursday morning that “A minister who declares that they will not accept a High Court ruling cannot continue to serve as a minister even for a minute; A government that will not obey the law and the court is an illegal government.”

National Unity head Benny Gantz chimed in as well, tweeting that “If the government does not respect a court ruling - Israel will not be a democracy. The prime minister is responsible.”

What is the incapacitation law?

All of this comes as the High Court of Justice is set to hear petitions today on invalidating the amendment passed to the Basic Law: The Government that gives Netanyahu immunity from conflict of interest claims.

The hearing could be a prelude to how the court decides to rule in its September hearing set to discuss the Law to Cancel the Reasonableness Clause, as it pertains to how the court sees its ability to rule on Basic Laws, which they have steered away from in the past. High Court Justice Uzi Fogelman gave insight to this during the hearing, saying "the High Court is authorized to conduct judicial review of Basic Laws.”

The law, which was passed in March, came amidst controversies surrounding the government’s planned judicial overhaul. Prior to its passing, Netanyahu had refrained from chiming in on the legislation out of fears of legal action and the possibility of Attorney-General Gali Baharav-Miara ruling him unfit to serve as prime minister due to his ongoing legal trials.

The law, known as the Incapacitation Law, stipulates that in order for a prime minister to be removed from office, 2/3 of the Knesset must vote to deem him or her unfit due to mental or physical health ailments.

Critics of the bill complained that it was personally tailored towards Netanyahu to allow him to avoid a conflict of interest agreement he signed in 2020.

Netanyahu, for his part, claimed that it was unreasonable that the prime minister could not offer his public insights on an issue that had over 100,000 Israelis protesting on the streets. As such, the law was passed and Netanyahu was able to intervene.

A number of petitions were quickly filed by opposition groups, including the one currently being debated in court by the Movement for Quality Government.

Last week, Baharav-Miara filed an opinion to the High Court asking it to strike down the law. In her filing, she wrote that the law was an abuse of power by the Knesset and that it was personally tailored to positively impact the prime minister’s personal legal situation.

This was the first time that an attorney-general argued in favor of striking down an aspect of a Basic Law, and if it does, many fear it could create a constitutional crisis in the country.

Due to Israel’s lack of a formal constitution, the High Court has viewed the Basic Laws as somewhat akin to one. They have acted in such a matter. However, with the two highly controversial amendments before the court in a short period of time, there is a possibility that they may create a new precedent to rule against them.

Netanyahu’s legal team responded to the attorney-general’s letter last week telling her that the court does not have the authority to rule against Basic Laws.

The court planned to hear arguments all day.