Photo Credit: Oren Ben Hakoon/Flash90
The stormy opposition in the Knesset plenum, March 22, 2023.

The Incapacity Law was Passed Thursday morning by the Knesset plenum by a majority of 61 to 47, following a long night of stormy debates. The coalition members chose to be absent: Likud MKs David Amsalem and David Bitan, who are on the warpath against their party chairman, Prime Minister Benjamin Netanyahu, and Shas MK Moshe Abutbul who was away for personal reasons.

Opposition leader Yair Lapid (Yesh Atid) reacted: “Like thieves in the night, the coalition has now passed an obscene and corrupt personal law against an unfounded rumor about incapacity. Let the citizens of Israel know that just before the holidays, while the cost of living is soaring, Netanyahu is once again only taking care of himself.”


Let’s unpack: in mid-February, the High Court of Justice ordered Attorney general Gali Baharav-Miara and PM Netanyahu to respond within a month to the petition of the Movement for Quality Government in Israel, demanding that Netanyahu be declared incapacitated for his involvement in the judicial reform (High Court, AG, Planning Coup D’état by Declaring Netanyahu ‘Incapacitated’).

The good government folks didn’t come up with the idea on their own. The move was clearly manufactured by the AG. A week earlier, Baharav-Miara ordered Netanyahu to refrain from interfering with changes in the judicial system due to his conflict of interest because of his trial. The AG sent the PM a letter “regarding the implementation of the opinion for the prevention of conflict of interest prepared for him during his previous term of office, concerning initiatives for changes in the judicial system.”

According to her notice, “The AG’s letter was drawn up, among other things, against the background of inquiries received and allegations of fear of a conflict of interest due to the Prime Minister’s involvement in the said initiatives, and against the background of the overall picture of the legislative initiatives on the subject.”

In other words: the former AG, Avichai Mandelblit, ordered the prosecution to indict the PM on charges of breach of trust, accepting bribes, and fraud; the High Court ruled that as long as he is not found guilty, Netanyahu is free to participate in Israeli politics; Netanyahu wins the election and becomes prime minister; now the court is weighing restricting his involvement in state affairs – even though he is still just as innocent-before-proven-guilty today as he was on election day. The reason? His government is planning to reform the judicial system.

Inconsistent? You bet. Could they do it to him? Of course, they could and were planning to. Even if they couldn’t show any connection between Netanyahu’s current trial and Justice Minister Yariv Levin’s reform.

The original law dealing with the incapacity of the Prime Minister, Article 16 of the Basic Law: The Government, established instructions regarding the filling of the position of the Prime Minister. According to section (b), if the Prime Minister is temporarily unable to fulfill his duties, the Acting Prime Minister will take his place. 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 duties permanently, the government is considered to have resigned on the 101st day on which the Acting Prime Minister holds office.

Any reasonable person reading the original law understands that it deals with the PM’s medical condition which prevents him from carrying out his duties. What Lapid called a “corrupt personal law against an unfounded rumor about incapacity” was, in fact, a law to prevent a very real possibility of a coup d’état sanctioned by the court. Why? Because no one expected Judge Daphne Barak-Erez to give any credence to the Quality Government in Israel’s insane stretching of a law that clearly deals with the PM being too sick to rule into incapacitating a PM over an accusation of conflict of interest. But the judge did accept the petition, and by then no one on the right doubted that with the AG advocating overthrowing Netanyahu he would be overthrown.

So this morning they rewrote the law to emphasize that only the government and the Knesset are empowered to declare a serving PM incapacitated. This incapacity can be declared by the PM himself, or by three-quarters of the government ministers. If the PM objects to his government’s decision, he can take it to the plenum, where a majority of 90 MKs can override his objection.

Be patient and wait for God; do not be vexed by the prospering man who carries out his schemes (Psalms 37:7).


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