Attorney General Gali Baharav-Miara on Sunday told the High Court of Justice that in her opinion a petition demanding the firing of Prime Minister Benjamin Netanyahu should be rejected outright. Last Thursday, Justice Ruth Ronen, who in the past served as the parliamentary aide of the late Meretz MK Yossi Sarid, accepted the petition, filed by a group calling itself “Fortress of Democracy,” which called on the High Court to order the PM to resign from his position on the grounds that he had violated his conflict-of-interest arrangement.
The very notion that a Supreme Court judge would entertain the idea of overriding the votes of more than a million Israelis is in itself a terrifying illustration of the urgent need to curb the court’s virtually unlimited power.
Three months ago, the High Court of Justice rejected a petition to declare the PM incapacitated over a speech in which he declared that he was going to intervene directly in the judicial reform legislation. The reason was the petitioner’s failure to exhaust proceedings. In the ruling, Judge Alex Stein stated that “the petition should be dismissed outright, even without asking for the respondents’ response, due to non-exhaustion of proceedings.”
The AG wrote the judges that she did inform Prime Minister Netanyahu that he violated the conflict-of-interest arrangement in the speech in which he made it clear that he would intervene in the legal reform legislative proceedings, but she added that “the issue of the conflict of interest is handled by the AG and the system of legal counsel to the government in an ongoing, legal manner as required.”
The new Incapacity Law was passed on March 23 by the Knesset plenum by a majority of 61 to 47, following a long night of stormy debates. 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, on March 23 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.