Israel’s High Court of Justice on Sunday issued a temporary injunction against the Knesset’s “Incapacitation Law” which defines and limits the ways in which a sitting prime minister can be declared incapacitated and removed from office.
A panel of three justices on Thursday, including Court President Justice Esther Hayut heard arguments in a marathon hearing for and against the law, which was passed by the Knesset in March.
The three justices also expanded their panel to 11 and ordered the government to explain why implementing this law could not be postponed until the next Knesset, but should be implemented in the current government.
The reason the court wants to postpone its implementation is the claim that it is a personally tailored law specifically for Prime Minister Netanyahu. The idea of delaying its implementation removes the concern that the law was tailored for a specific person, while not cancelling it entirely.
This concept of cancelling or limiting “personal tailored laws” is one that has been selectively and inconsistently applied in Israel.
The law was passed as part of a Basic Law, which gives the law a quasi-constitutional status, or at least according to the court it does. This would be the first time the court directly interferes with a Basic Law.
The new law prevents the Supreme Court from ordering a prime minister to take a leave of absence for political or legal reasons. Under the law, a prime minister can only be declared unfit for office for health reasons, and only by a three-quarter majority vote of Cabinet ministers or a three-quarter majority Knesset vote.
The amendment’s explanatory notes state that declaring a prime minister unfit while he is physically and mentally able to fulfill his duties annuls the election results and the democratic process.
It seems likely that medical incapacitation was the original intent of the original law’s authors.
One of the earliest mentions of applying the incapacitation law to non-medical (i.e. political/legal) reasons comes from the leftwing Israel Democracy Institute in 2017, in an article discussing how to remove Netanyahu from office. The IDI suggested a method for the court to remove a sitting prime minister who was simply being investigated – not yet indicted, much less convicted. That’s quite extreme.
During Thursday’s hearing, the three justices heard claims that the law appeared to have been tailored to specifically protect Prime Minister Benjamin Netanyahu from being declared incapacitated due to conflicts of interest and legal limits placed on his ability to be involved in certain judicial decisions as a result of his trials. Netanyahu is in the middle of a trial for fraud, bribery and breach of trust stemming from three separate investigations.
But those cases seem to be falling apart, and the trial judges even strongly recommended to the prosecution to drop the bribery charge as they don’t have a case.
The petitions against the law were filed by The Movement for Quality Government in Israel and the opposition party Israel Beiteinu.
Supporters of the amendment argue that the possibility of unelected judges ordering a prime minister to recuse himself over conflicts of interest is antidemocratic.
The last Israeli prime minister removed from office for medical reasons was Ariel Sharon.
Deputy Prime Minister Ehud Olmert became temporary Prime Minister after Sharon, then 78, suffered a massive stroke on Jan. 4, 2006. The Israeli Cabinet declared Sharon permanently incapacitated on April 11. Sharon remained in a permanent vegetative state until his death in 2014.
Olmert stepped down from the office in 2008 ahead of his own indictment for corruption. He was later convicted and served two-thirds of a 27-month prison sentence.
The Incapacitation Law amendment is part of a government initiative to overhaul the judicial system which has deeply divided Israelis, led by anarchists who want to maintain the court’s override over the elected government.
Legislation advancing through the Knesset would primarily alter the way judges are appointed, define when and how the High Court can override a Knesset Law, give the Knesset the ability to override certain High Court rulings and change the way legal advisors are appointed to government ministries, define their roles, and clarify the limits of their power.
On July 24, the Knesset passed the “Reasonableness Law” restricting the way activist judges can apply the reasonableness standard, a unique concept introduced by former Chief Justice Aharon Barak to overrule laws he subjectively disagreed with, but not recognized by any Israeli legislation or precedent.
Aharon Barak once told former Justice Minister Ayelet Shaked that he doesn’t mind if the reasonableness standard was cancelled, as he has other tools he can use instead.
Knesset Speaker Amir Ohana said in response to the court’s decision:
“As the head of the legislative and constituent authority (authorized to establish Basic laws), my consistent position, as the position of all the previous Knesset speakers (when they served in office), is that the judiciary does not have the authority to discuss the question of the validity, applicability and content of the fundamental laws.
This is the exclusive authority of the Knesset, in which sit the elected representatives of the entire Israeli public, who will give an account to it and ask for its trust every election.
Therefore, in the absence of any legal authorization, and for the sake of democracy, the court must respect the Knesset’s decisions.”
כראש הרשות המחוקקת והמכוננת (המוסמכת לכונן חוקי יסוד) עמדתי העקבית, כעמדתם של כל יושבי-ראש הכנסת הקודמים (עת שכיהנו בתפקיד), היא כי אין בסמכות הרשות השופטת לדון בשאלת תוקפם, תחולתם ותוכנם של חוקי היסוד.
זוהי סמכותה הבלעדית של הכנסת, בה יושבים נבחרי כל הציבור הישראלי, אשר יתנו…
— Amir Ohana – אמיר אוחנה (@AmirOhana) August 6, 2023
The heads of the coalition parties also released a statement in response:
“The court does not have the authority to cancel basic laws and does not have the authority to determine that the basic law will enter into force at a later date. Nor does any court have the authority to cancel the results of the elections and allow the removal of a prime minister, which cancels democracy from its foundation.
Such a decision drops the common ground between the authorities that was agreed upon over the years and stands in contradiction to the explicit statement of former President Aharon Barak: “The Knesset may determine in a basic law that there is no constitutional judicial review, and the court will not be able to overturn this determination. If a court rejects a law on the grounds that it is unconstitutional, the Knesset can prevail over this rejection by turning the rejected law into a fundamental law.’
The public in Israel is currently required to calm down, talk and agree. At a time like this, responsibility and restraint are required on the part of all authorities.”
This article was based on content by Pesach Benson/TPS