HIgh Court vs. government: Prosecutor says AG 'never had authority to order PM to step down'

Judges deliberate unprecedented step of annulling Basic Law petitions argue tailored specifically to allow Prime Minister Benjamin Netanyahu to breach conflict of interest agreement, potentially sparking a constitutional crisis

The High Court of Justice on Thursday heard petitions against an amendment to Israel's quasi-constitutional Basic Laws that is meant to prevent Prime Minister Benjamin Netanyahu from being declared incapacitated, and forced to recuse himself from his position because of his criminal trial while he is pushing through legislation that would directly affect his legal challenges.
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The petitioners assert that this amendment is of a personal nature, meant to help Netanyahu, and undermines the judiciary’s checks and balances on the executive and legislative branches. They warn that this could bring Israel a step closer to a dictatorship. They also challenge the immediate enforcement of the law, stating that it paves the way for a hazardous precedent: the prime minister could adjust constitutional conditions according to his whims, leveraging his temporary majority.
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דיון בג"ץ בחוק הנבצרות
דיון בג"ץ בחוק הנבצרות
High Court of Justice
(Photo: Marc Israel Sellem)
During prior discussions about the amendment, Attorney General Gali Baharav-Miara contended it must be struck down. Responding to a High Court injunction a week prior, she proposed a deferment of its enforcement, at least until the forthcoming parliamentary session.
She emphasized that Basic Laws shouldn't be manipulated to address personal agendas or bypass issues of ethical and legal standing. By deferring its initiation, she suggests an opportunity to shape the provision with foresight and comprehensive legal insight.
Supreme Court President Esther Hayut criticized the manner in which the recusal law was approved by the Knesset. "The mechanism was enacted in a hurry. What is the immediate need for legislation? The issue of incapacity is not on the agenda, so what's burning?" She pointed out that the court-issued “injunction doesn’t talk about abolishing the law. No one issued an injunction against the entire law, we’re only talking about when the law should be implemented” to avoid the appearance that it was enacted for the current prime minister.
Knesset attorney Yitzhak Bart, who is representing the Knesset in front of the High Court, said that the new situation created by the law is better than the one that existed before. "We always prefer applicability to the future, but this does not cross the line." According to Bart, there was no problem with the legislative procedures and changes and corrections were made. "Although they were quick, comments were considered and there was a draft," he said.
Attorney Michael Rabello, a private attorney who represents Prime Minister Benjamin Netanyahu, said that the Supreme Court's intervention in the recusal law is "a kind of halachic act of impeachment of someone who has been elected prime minister. A legal nightmare that could put the court in the eye of the political storm." Rabello added that: "The petitioners want to allow the option of overriding the status of the Knesset - I claim that the honorable court does not have the authority to cancel Basic Laws."
Coalition whip Ofir Katz of the Likud party posted a statement on the X social media platform early Thursday morning as the hearing continues, in which he responds to the high Court hearing on the incapacitation law and notes that the law was intended to take immediate effect. "As the initiator of the bill and the chairman of the committee that managed the legislative process, I and the members of the committee had not a shadow of a doubt that we are enacting an arrangement that will apply immediately. There is no room for an interpretation that is contrary to our explicit position," he wrote.
Anar Hellman, a representative of the State Prosecutor's Office, said during the hearing that the attorney general never had the authority to order the prime minister to step down. Since passage of the recusal law, according to Hellman, the attorney general has never had the authority to order a prime minister to step down. There is some image in the public about the law. This is not the case - the one who determines that a prime minister is incapacitated is the government, the same body that the Knesset trusted, and then a deputy from the prime minister's party has to be appointed. The attorney general does give legal opinions."
Hellman also said that "the attorney general does not think that the violation of the conflict of interest by the prime minister leads to incapacity. We announced this both in this case and in the petition for an discussion of Netanyahu's incapacity. We said that this is a far-reaching conclusion."
He also said that: "The attorney general thought that the law, which has a private purpose for the prime minister, should not be a Basic Law and that it was misused. The court thought otherwise, and issued an order. The attorney general's position is that there can be functional reasons for being recused - not necessarily on physical or mental grounds."
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