Photo Credit: Yonatan Sindel/Flash90
Attorney General Gali Baharav-Miara, May 29, 2022.

Attorney General Gali Baharav-Miara is preparing to discuss with senior officials in the Justice Ministry and the Prosecutor’s office the conflict of interests of Prime Minister Benjamin Netanyahu in his engagements with the judicial system, and the possibility of declaring him as being in a state of nivtzarut–incapacitation because of it, Israeli media reported Sunday. The Hebrew term Nivtzarut means that the subject is unable to deal with certain issues. The discussions will begin this week or next.

According to the Knesset website, the term “nivtzarut” describes a situation in which a government official cannot fulfill his duties for certain reasons. The lack of ability to fulfill the position can be temporary if the office bearer will eventually return to fulfill his position, or permanent if it is clear that the office bearer will not return to fulfill his position.


Article 16 of Basic Law: The Government states that if the Prime Minister is unable to fulfill his position temporarily, his place will be filled by an Acting Prime Minister. If 100 consecutive days have passed in which the acting prime minister served instead of the prime minister, the prime minister is considered to be permanently prevented from fulfilling his duties. According to Article 20(b) of the Basic Law, if the Prime Minister is prevented from fulfilling his position permanently, the government is considered to have resigned on the 101st day on which the Acting Prime Minister holds office.

Ministry officials, who habitually speak to each other and the press a whole lot more than they do to Justice Minister Yariv Levin, made it clear that AG Baharav-Miara is still far from announcing that Netanyahu is incapacitated, these are only discussions, nothing to see here. But Haaretz on Sunday cited “jurists” who said that the greater the conflict of interests between Netanyahu’s effort to reform the justice system and his criminal trial, the more likely it is that the AG would order him to take a leave of office.

As I wrote here on Sunday: In case you were wondering about the potential for a coup d’état in Israel – this is a coup d’état.

Here is the argument in this latest attack of the judicial system on the legal representatives of Israel’s voters: even though the High Court of Justice permitted Netanyahu to run in last November’s election despite his three criminal indictments (because, you know, indictments are not convictions), as soon as the same Netanyahu dares to rattle the justice system’s cage by attempting to reform it – he is trying to manipulate the outcome of his trial, and should therefore be removed from office.

The fact is that the Israeli oligarchy that has ruled the teeming masses through judicial tyranny in the past 30 years––even though the masses have been voting against it, knows that the Levin reform will take away their superiority over the other two branches of government. The oligarchs have used a magnificent echo chamber of old guard politicians, jurists, academics, media stars, and the largely secular, white-skinned better-half Israelis to drown out any civilized debate of the reform. On Sunday, a meeting of the Knesset Constitution, Law, and Justice Committee was boycotted by the opposition MKs – the same opposition MKs who claim they are not being heard.

The Wall Street Journal last week published an editorial titled, “The Real Threat to Israeli Democracy,” pointing out that “the rolling judicial revolution, not the attempted reform, has usurped power and upset the balance.”

And Josh Hammer wrote in Newsweek: “As a result of Barak’s ‘revolution,’ the Court usurped a plenary power to overturn any piece of legislation at any time, for any reason whatsoever. At first, the Court found itself bound by Israel’s 13 quasi-constitutional ‘Basic Laws,’ but it soon discarded even that limitation. In recent years, the Court has seen fit to nullify the will of the people—expressed via normal legislation and Basic Laws alike—on such unfathomably flimsy grounds as being ‘extremely unreasonable’ or being ‘too political.’ Unbelievably, the Court now also wields the power to override the elected government’s selections for Cabinet-level ministerial positions, as it did just this week when it vetoed Netanyahu’s choice for minister of health and minister of the interior, Aryeh Deri.”

How come these US right-wing sources understand so clearly what 100 thousand left-wing Israeli protesters don’t? Perhaps because American right-wingers have that rare capacity to read and examine written content. Who knows. It’s a mystery, but the effectiveness of the Israeli oligarchy’s campaign to dub the attempt to remove their strangling hold on the country’s power a threat to democracy is probably making George Orwell hop madly in his grave with hysterical laughter. This is a clear case of Big Brother calling its victim “big brother,” with the conviction and self-righteousness of David Ben Gurion bombing of the Jewish ship Altalena off the coast of Tel Aviv. He actually said the “Holy Cannon” murdered those Holocaust survivors onboard the ship.

The only way out for Netanyahu and his coalition is to pass the judicial reform ASAP and begin a campaign to shrink the overwhelming powers of all the components of a rebellious justice system until they are on par with the other two branches of government.

This may be a once-in-a-lifetime opportunity.

Update: On Monday evening, three days after the reports began emerging on all the Israeli media channels, Attorney General Gali Baharav-Miara sent a letter to all the coalition party leaders, responding to their official inquiry on Monday. In her letter she wrote that without responding to any specific claims they made in their inquiry, and that in contrast to the media reports, she has not held discussions with regards to declaring the prime minister in a state of incapacitation.

Of course, the problem with her response is that she was not accused of already holding the meetings, but rather that she was planning to hold them, and she didn’t address that in her denial letter.

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