Photo Credit: Arie Leib Abrams/FLASH90
Supreme Court President Justice Ester Hayut, May 30, 2023.

On Thursday, a panel of three High Court of Justice judges will hear a petition against the amendment to a basic law that clarifies the scope of determining the incapacity of a sitting Israeli prime minister.

Before we enter the details of the petition, it should be noted that, according to former Supreme Court Justice Aharon Barak, the Knesset Basic Laws are equivalent to a constitution. In interpreting laws, Israeli judges on every level refer to the basic laws, and when the Supreme Court revokes a law, it does so citing its incompatibility with this or that basic law.


With that in mind, for the court to deliberate a petition against a basic law is tantamount to the US Supreme Court deliberating whether to cancel the First Amendment. It’s unthinkable.

Turns out that in today’s no-holds-barred war between the enlightened elites and the ignorant masses, it is thinkable.

The very fact that the court decided to entertain this violation of years of tradition when not once did justices challenge a basic law already constitutes a judicial coup d’état, with the court taking over the authority of both legislator and executive.

The panel that Supreme Court President Esther Hayut picked for Thursday’s hearing includes herself and Court Vice President Uzi Fogelman – both dyed-in-the-wool liberal activists; and Justice Yitzhak Amit who runs the gamut from activist to conservative.

Yours truly is not a prophet, but if I were to imagine a supreme court panel willing to forge into a constitutional crisis at a time when the country is being incinerated by anarchist militias – that’s the panel I would come up with. Two activists and one fig-leaf semi-activist for the dissenting opinion.

Back in 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.

The good government folks didn’t come up on their own with the idea to throw Bibi out because he prime-ministers too much. 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 ongoing 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.”

The AG was referring to a supreme court decision to permit Netanyahu to become prime minister despite his court case, as long as he didn’t interfere in issues that constituted a conflict of interest, namely the judiciary.

It went like this: 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 was planning to reform the judicial system.

Inconsistent? You bet. Could they do it to him? Of course, they could and are planning to. Even if they can’t show any connection between Netanyahu’s 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. And since it is a basic law, no one expected Justice 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.

And so, to protect the prime minister from a judicial coup d’état, in March the coalition passed an amendment to the basic 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.

It takes us back to Netanyahu’s original sin: he unseated a center-left plus Arabs coalition government and installed in its place a 64-member, completely right-wing coalition government, crushing the dreams of Israel’s elites – political, judicial, financial, and military – to throw aside the Haredim, settlers, and the folks in the periphery.

They’ve tried to take him down with 30 weeks of street protests, illegal strikes, refusal to serve in the IDF, transferring their money abroad, and begging foreign countries to boycott his government.

Now they’ll try to take Bibi down by breaking the law, courtesy of the supreme court.


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